{"id":118500,"date":"1994-07-13T00:00:00","date_gmt":"1994-07-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/suresh-chandra-bahri-vs-state-of-bihar-on-13-july-1994"},"modified":"2018-12-27T09:54:52","modified_gmt":"2018-12-27T04:24:52","slug":"suresh-chandra-bahri-vs-state-of-bihar-on-13-july-1994","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/suresh-chandra-bahri-vs-state-of-bihar-on-13-july-1994","title":{"rendered":"Suresh Chandra Bahri vs State Of Bihar on 13 July, 1994"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Suresh Chandra Bahri vs State Of Bihar on 13 July, 1994<\/div>\n
Equivalent citations: 1994 AIR 2420, \t\t 1995 SCC Supl. (1)\t80<\/div>\n
Author: F Uddin<\/div>\n
Bench: Faizan Uddin (J)<\/div>\n
           PETITIONER:\nSURESH CHANDRA BAHRI\n\n\tVs.\n\nRESPONDENT:\nSTATE OF BIHAR\n\nDATE OF JUDGMENT13\/07\/1994\n\nBENCH:\nFAIZAN UDDIN (J)\nBENCH:\nFAIZAN UDDIN (J)\nANAND, A.S. (J)\n\nCITATION:\n 1994 AIR 2420\t\t  1995 SCC  Supl.  (1)\t80\n JT 1994 (4)   309\t  1994 SCALE  (3)197\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
The Judgment of the Court was delivered by
\nFAIZAN\tUDDIN,\tJ.-  In Sessions Trial No. 77  of  1985\t the
\nappellants  Suresh Bahri and Raj Pal Sharma  were  convicted
\nunder  Section 302 of the Penal Code for causing  murder  of
\nUrshia\tBahri and her two children, namely, Richa Bahri\t and
\nSaurabh\t Bahri.\t  All the three appellants,  Suresh  Chandra
\nBahri,\tGurbachan  singh  and  Raj  Pal\t Sharma\t were\talso
\nconvicted under Sections 302\/120-B of the penal Code for the
\noffence\t of criminal conspiracy to commit murder  of  Urshia
\nBahri  and  her two children named  above.   The  appellants
\nSuresh\tChandra\t Bahri\tand  Raj  Pal  Sharma  were  further
\nconvicted  under Section 201 of the Penal Code\tfor  causing
\ndisappearance of evidence of murder of Saurabh Bahri and the
\nappellants Suresh Chandra Bahri, Gurbachan Singh and Raj Pal
\nSharma\twere also convicted under Section 201 of  the  Penal
\nCode  for  causing disappearance of evidence  of  murder  of
\nUrshia Bahri by the Additional Judicial Commissioner,  anchi
\nby  judgment  dated 27-7-1990 who awarded  the\tsentence  of
\ndeath  for the offences under Sections 302 and 302\/120-B  of
\nthe  Penal Code and rigorous imprisonment to all  the  three
\nappellants for a period of seven years for the offence under
\nSection 201 of the Penal Code.\tThe learned trial Judge made
\na  reference to the High Court of Patna, Ranchi Bench  under
\nSection\t  366  of  the\tCode  of  Criminal   Procedure\t for
\nconfirmation  of the sentence of death and at the same\ttime
\nthe three appellants also preferred separate Criminal Appeal
\nNos. 142, 143 and 152 of 1990 challenging their\t convictions
\nunder Sections 302\/120B and 201 of the IPC.  The High  Court
\nof   Patna  (Ranchi  Bench)  dismissed\tthe  three   appeals
\npreferred  by the three appellants affirming  the  sentences
\nawarded to them and accepted the death reference by judgment
\ndated 16-12-1991 against which these three appeals by  leave
\nof this Court have been preferred.  Since all these  appeals
\narise out of the common judgment of the High Court, they are
\nbeing disposed of together.\n<\/p>\n
2.It  may be pointed out that along with the above  named
\nthree appellants three other accused, namely, Y.D. Arya, the
\nmaternal  uncle of the appellant Suresh Bahri,\tSmt  Santosh
\nBahri,\tthe  mother of the appellant Suresh  Bahri  and\t one
\nMohd.  Suhail, truck driver, were also charged and tried  as
\nco-accused  for\t the  offences\tpunishable  under   Sections
\n302\/120-B and 201 of the Penal Code, out they were acquitted
\nby the learned trial Judge giving them benefit of doubt.  No
\nappeals against their acquittal are preferred.\n<\/p>\n
3.Admittedly,  at the relevant time the appellant  Suresh
\nChandra\t Bahri\t(hereinafter referred to  as  Suresh  Bahri)
\nresided\t along with his deceased wife Urshia Bahri at  South
\nRanchi,\t House\tNo.  936  on the  Station  Road\t within\t the
\njurisdiction  of Chutia Police Station.\t He also had a\tfarm
\nand  house attached thereto at Dulli, a place situated at  a
\ndistance of about 40 kilometres from Ranchi towards  Khelari
\nwithin the jurisdiction of Police Station Khelari,  District
\nRanchi.\t  Suresh  Bahri was married to the  deceased  Urshia
\nBahri in 1971 and out of their wedlock deceased Kumari Richa
\nBahri  and Saurabh Bahri were born.Kmari Richa Bahri  was  a
\nstudent of Class VI in Father Agnel School, New
\n90<\/span>
\nDelhi in the year 1983 while Saurabh Bahri was a student  of
\nClass  IV  in the same school.\tThe  acquitted\taccused\t Smt
\nSantosh\t Bahri is the mother of the appellant  Suresh  Bahri
\nand the acquitted accused Y.D. Arya is the maternal uncle of
\nappellant  Suresh  Bahri  and real brother  of\tSmt  Santosh
\nBahri.\t There\tis no dispute that the parents\tof  deceased
\nUrshia\tBahri  were living in America  having  settled\tdown
\nthere  and the first informant of the incident Bineet  Singh
\nSarang, PW 69, the brother of the deceased Urshia Bahri\t was
\nemployed as an Engineer in Libya.  The deceased Urshia\tused
\nto write letters from time to time to her parents in America
\nand also used to talk to them on telephone.\n<\/p>\n
4.This\tcase has a chequered story and the prosecution\tcase
\nunfolds a pathetic, chilling and sinister phenomenon whereby
\nthe  three  innocent  lives  who  were\tthe  heirs  of\t the
\nproperties  of appellant Suresh Bahri, were eliminated\tfrom
\nthis worldly scene and consigned to their heavenly abode  by
\nputting an untimely end to their innocent lives simply in  a
\nbid to avoid interference and intermeddling in the  property
\nbelonging  to  the  appellant Suresh Bahri  and\t thwart\t the
\naccomplishment and foil the wishes of Urshia of migrating to
\nAmerica\t with her children with the sale proceeds of  Ranchi
\nhouse and settle down at America.\n<\/p>\n
5.The  prosecution  case  is that the  parents\tof  deceased
\nUrshia Bahri have settled down in America and their deceased
\ndaughter  Urshia used to write letters to her  parents\tfrom
\ntime  to  time\tbut they did not receive  any  letters\tfrom
\nUrshia\tin America for quite some time and on  the  contrary
\nthey  received\ttwo letters in America\tfrom  the  appellant
\nSuresh\tBahri, one dated 29-10-1983 and another dated  3-11-
\n1983  which are marked Exts. 23\/6 and 23\/7, intimating\tthem
\nthat henceforth his wife Urshia will not be in a position to
\naddress to them any letter as she was engaged in urgent work
\nand,  therefore,  in her place he himself would\t be  writing
\nletters\t to them.  This gave rise to a serious suspicion  in
\nthe  mind  of  the  parents  of\t deceased  Urshia  and\tthey
\nsuspected  some\t foul play.  Consequently,  the\t parents  of
\nUrshia\tdirected  their\t son Bineet  Singh  Sarang,  PW\t 69,
\nworking in Libya to proceed to India with a view to find out
\nthe welfare and whereabouts of Urshia and her children.\n<\/p>\n
6.Further  prosecution case is that acting on the advice  of
\nhis parents Bineet Singh Sarang (hereinafter referred to  as
\nBineet)\t landed in India on 16-1-1984 and reached the  house
\nof  his brother-in-law, the appellant Suresh at Delhi.\t But
\nto his utter surprise he found the house locked.  Bineet was
\ninformed by some of the tenants living on the first floor of
\nthe  house that the acquitted accused Smt Santosh Bahri\t the
\nmother of appellant Suresh would be coming to Delhi on 21-1-
\n1984.\tFinding\t no one in Delhi house\tBineet\tvisited\t the
\nbusiness  premises of the appellant Suresh at  Bajaj  House,
\nNehru  Place, New Delhi, where he met one Dhar, an  employee
\nof  appellant Suresh who informed Bineet that the  appellant
\nSuresh was at Ranchi.  In the meanwhile Smt Santosh,  mother
\nof  appellant Suresh returned to Delhi and when\t Bineet\t met
\nher and enquired about the whereabouts of his sister and her
\nchildren,  she\tinformed him that they had gone\t to  Ranchi.
\nBineet,\t therefore, rushed to Ranchi on 25-1-1984  where  he
\nmet  the  appellant  Gurbachan Singh,  Proprietor  of  Singh
\nFurniture  Works, Main Road, Ranchi as telephone  number  of
\nGurbachan  Singh was found recorded in the records  kept  in
\nthe  business premises of appellant Suresh at Delhi  as\t his
\ncontact\t address  of  Ranchi.\tBineet\tenquired  from\t the
\nappellant Gurbachan Singh
\n91<\/span>
\nthe  whereabouts of his sister and her children.   Gurbachan
\nSingh  took Bineet to the farmhouse of appellant  Suresh  at
\nDhulli\tbut  there they found neither Urshia Bahri  nor\t her
\nchildren,  namely,  Richa  and\tSaurabh\t nor  the  appellant
\nSuresh.\t However, at Dhulli farm Bineet, PW 69, was informed
\nby  Gopi  Mistry, PW 29, the caretaker of the  farmhouse  of
\nappellant  Suresh that he had not seen Urshia for  the\tlast
\nabout 5-6 months and further he disclosed that the appellant
\nSuresh\thad visited Dhulli farm in mid-December\t along\twith
\nhis two children and one unknown person and that during that
\nperiod\tthe appellant Gurbachan Singh had also\tvisited\t the
\nsaid farm.\n<\/p>\n
7.When Bineet did not find the appellant Suresh, his  sister
\nUrshia\tand her children at Dhulli farm also he\t again\tcame
\nback to Station Road, Ranchi House No. 936 of the  appellant
\nSuresh but again he did not find anyone there.\tHe, however,
\nmet  one Murari, PW 1, the next door neighbour of House\t No.
\n936  of\t appellant  Suresh situated  at\t the  Station  Road,
\nRanchi,\t who  used  to\tkeep  the  keys\t of  the  house\t  of
\naccused\/appellant  Suresh.   On\t enquiry  by  the  informant
\nBineet, Murari, PW 1, told him that he had seen Urshia Bahri
\nat the house of appellant Suresh Bahri on 11-10-1983 but the
\nchildren  of Urshia Bahri had not come to the Ranchi  house.
\nThe  witness  Murari,  PW 1, further told him  that  in\t the
\nmorning\t of 12-10-1983 the appellant Suresh Bahri  told\t him
\nthat  Urshia  Bahri had left Ranchi for Delhi  by  aeroplane
\nthat very morning and Suresh remained at Ranchi till end  of
\nOctober\t 1983.\t Witness  Murari  Lal  also  told  him\tthat
\nthereafter  he\tdid not see Urshia and her two\tchildren  at
\nRanchi.\t  The informant Bineet also met one B.N. Mishra,  PW
\n2, another neighbour of appellant Suresh at Ranchi who\ttold
\nhim that his sister Urshia Bahri was known to him because he
\nwas negotiating with her for purchase of the House No.\t936,
\nStation\t Road, Ranchi and the sale would have completed\t but
\nfor the sudden disappearance of Urshia Bahri, the sale could
\nnot  take place.  B.N. Mishra, PW 2, also told him  that  he
\nhad  gone  to  the house of Suresh Bahri at  Ranchi  in\t the
\nevening\t of 11-10-1983 to meet Urshia Bahri but he  did\t not
\nfind her there.\t He, however, met Suresh Bahri there who was
\nsitting\t in  the  verandah of the house\t and  there  was  no
\nelectric light in the house of Suresh Bahri though there was
\nlight in the other neighbouring houses.\t The witness  Mishra
\nalso told to Bineet that when he was ascending the  verandah
\nof  the house the appellant Suresh Bahri caught hold of\t him
\nand led him away from the house saying that Urshia had\tgone
\nto the house of the appellant Gurbachan Singh to a party and
\nshe will proceed to Delhi direct from the house of Gurbachan
\nSingh by next morning flight.\n<\/p>\n
8.Later\t when the informant Bineet, PW 69 again had  a\ttalk
\nwith  the witness Murari, PW 1 about the whereabouts of\t his
\nsister\tUrshia and her children, it is said Murari told\t him
\nthat  there  was  rumour that his  sister  Urshia  has\tbeen
\nmurdered.   Thereafter,\t Bineet\t PW 69 went  to\t the  Police
\nStation\t Chutia\t where\the made a written  report  that\t his
\nsister and her children were missing.  On the basis of\tthis
\nreport\tP.S. Case No. 27\/84 was registered at Chutia  Police
\nStation.   Bineet then left Ranchi on 26-1-1984 and  reached
\nDelhi  same  day by plane and went to the  house  of  Urshia
\nBahri  at C-70, South Extension-II, New Delhi where  he\t met
\nthe  acquitted accused Mrs Santosh Bahri and  enquired\tfrom
\nher  the whereabouts of his sister Urshia.  It is said\tthat
\nMrs  Santosh Bahri told Bineet that she had  no\t information
\nabout  Urshia.\t Bineet further\t gathered  information\tthat
\nUrshia was never seen at New Delhi after 30-9-1983 though
\n92<\/span>
\nthe  appellant Suresh had come to New Delhi in the month  of
\nDecember  1983.\t  He also learnt that in December  1983\t the
\nappellant Suresh Bahri had left Delhi along with his  mother
\nMrs Santosh Bahri and the two children Richa and Saurabh  in
\nAmbassador  Car No. DLE 3179 and the appellant Suresh  Bahri
\ncame  back to Delhi in January 1984.  When appellant  Suresh
\nBahri  learnt about the arrival of the informant  Bineet  at
\nNew Delhi he disappeared.\n<\/p>\n
9.Further prosecution case is that sometime in the  month
\nof  September 1983 the appellant Suresh Bahri had  sent\t his
\nassociate  appellant Raj Pal Sharma to Ranchi who stayed  in
\nthe  Station  Road  House No. 936 at  Ranchi  but  when\t the
\nappellant  Suresh Bahri along with his deceased wife  Urshia
\narrived at Ranchi on 1-10-1983 the appellant Raj Pal  Sharma
\nleft the house.\t Deceased Urshia Bahri had come to Ranchi to
\nsell  the  said\t House No. 936\tand  had  contacted  several
\npersons in that connection including Murari Lal, PW 1, Badri
\nNarayan\t Mishra, PW 2 and Laxmi Narayan, PW 21 who  in\tfact
\nhad  agreed  to\t purchase the said house and  the  deal\t was
\nalmost\tsettled and the sale deed was likely to be  executed
\nvery  soon.  It is said that as the appellant  Suresh  Bahri
\nwas  not agreeable for sale of the said house, Suresh  Bahri
\nand  the appellant Raj Pal Sharma murdered her in the  night
\nof  11-10-1983\tin a room of the said house.   The  head  of
\nUrshia Bahri was truncated and severed from her body.  At or
\nabout  the  same  time the appellant  Gurbachan\t Singh\talso
\narrived along with his servant Ram Sagar Vishwakarma who was
\nalso arrayed as an accused but later turned approver and was
\nexamined  as  PW  3. It is said that the  headless  body  of
\nUrshia\tBahri was wrapped in a blanket and saree  piece\t and
\ntied with rope was dumped in a sceptic tank situated  within
\nthe compound of the said house.\t Later on in the morning  of
\n13-10-1983 it is said that the appellant Raj Pal Sharma\t and
\nSuresh\tBahri  took the head of Urshia Bahri and  threw\t the
\nsame under a bush in the forest on the Ranchi-Patratru Road.
\nIt  is\talso alleged that sometime in the month\t of  January
\n1984 the appellant Suresh Bahri and Gurbachan Singh  managed
\nto  take  out the body of Urshia from the sceptic  tank\t and
\ntook the body in Truck No. BHM 5879 driven by the  acquitted
\naccused Mohd.  Suhail and threw it in a dumping pit known as
\nMadhukam dump.\n<\/p>\n
10.Further  prosecution case with regard to the murder\tof
\nthe two children Richa Bahri and Saurabh Bahri is that\tthey
\nwere  studying in Father Agnel School,\tSouth  Extension-II,
\nNew Delhi.  Saurabh was a student of Class IV and Richa\t was
\na  student of Class VI in the said school.  It is said\tthat
\non  5-12-1983 the appellant Suresh Bahri, the father of\t the
\ntwo  children  filed two separate  applications\t before\t the
\nPrincipal of the school for withdrawal of both the  children
\nfrom the school.  These applications are Exts. 40 and  40\/1.
\nBoth  the children were, thus, withdrawn from the school  on
\n5-12-1983.  It is said that the appellant Suresh Bahri\tleft
\nhis  New  Delhi House No. C-70 for going to  Ranchi  by\t his
\nAmbassador Car No. DLE 3179 along with his two children, his
\nmother, acquitted accused Mrs Santosh Bahri, one maidservant
\nand  the  appellant Raj Pal Sharma.  On his way\t to  Ranchi,
\nSuresh\tBahri  dropped his mother Mrs Santosh  Bahri  and  a
\nmaidservant  at Basti in Uttar Pradesh and having  stopovers
\nat  Varanasi  (Uttar  Pradesh)\tand  Daltonganj\t (Bihar)  he
\nreached\t his Dhulli farmhouse on 16-12-1983 where  he  along
\nwith  the  appellant  Raj Pal Sharma and  the  two  children
\nstayed\ton 16-12-1983 and 17-12-1983.  During the  aforesaid
\nstay  the  appellant  Gurbachan Singh  also  visited  Dhulli
\nfarmhouse.  It is
\n93<\/span>
\nsaid  that a few days earlier appellant Gurbachan Singh\t had
\nsent  some  cots  and chairs at\t the  Dhulli  farmhouse\t and
\naccording to the prosecution in the intervening night of 17-
\n12-1983\t and 18-12-1983 the appellants Suresh Bahri and\t Raj
\nPal  Sharma committed the murder of Richa Bahri and  Saurabh
\nBahri  in  Dhulli farmhouse of the appellant  Suresh  Bahri.
\nThey took the bodies of Richa Bahri and Saurabh Bahri in the
\nAmbassador  Car\t No. DLE 3179 to Varanasi where\t they  threw
\ntheir dead bodies in Varuna River, a tributary of Ganges.\n<\/p>\n
11.On 20-12-1983 at about 8.30 a.m. dead body of a boy\taged
\nabout  12  years  was found floating at the  bank  of  River
\nVaruna\tnear  the  bridge of  Village  Puratepur  which\t was
\nnoticed by one Hiralal, PW 36.\tThe naked body was packed in
\na gunny bag.  Report about it Ext.  11 was made by  Hiralal,
\nPW  36\tin the Police Station Sarnath where  P.S.  Case\t No.
\n100\/83\twas  registered.   Atma Nand Singh,  PW\t 46,  Police
\nOfficer, Sarnath on receiving the report reached at the bank
\nof  Varuna River, inspected the dead body and  having  found
\nmarks  of  injury  on the neck of  the\tdead  body  prepared
\ninquest report in the presence of witnesses.  The gunny\t bag
\nin which the dead body was packed was seized as per  seizure
\nmemo Ext. 5\/8.\tHe also received information that one gadda,
\none  quilt and one bedsheet were lying at the dumping  place
\nof Panchkoshi-Varanasi Road.  The Police Officer, Atma\tNand
\nSingh,\tPW 46 seized the said articles by seizure memo\tExt.
\n5\/9 as also two bedsheets which were also found on the\tsame
\nroad  near the Forest Department Nursery vide  seizure\tmemo
\nExt. 5\/ 10.\n<\/p>\n
12.Dr  B.K.  Bhatnagar, PW 27, District\t Hospital,  Varanasi
\nperformed  an autopsy on the dead body of the boy on  21-12-
\n1983 at about 4.15 p.m. He found that it was a dead body  of
\na  male child aged about 12 years.  The doctor\tnoticed\t two
\nincised\t wounds in the neck.  The trachea and blood  vessels
\nand  larynx  were cut.\tThere was also a  contusion  on\t the
\nchest.\t There\twere  various other injuries  found  on\t his
\nperson\twhich  were ante-mortem in nature  caused  by  sharp
\nobject.\n<\/p>\n
13.Police  Officer, Sarnath, Atma Nand Singh, PW 46 got\t the
\nphotographs of the dead body taken by the photographer Ashok
\nKumar PW 48 and published the same in newspapers to  collect
\ninformation  about  the identity of the dead  child  but  as
\nnobody\tclaimed the dead body he disposed of the same  after
\npreparing  a  panchnama to that effect.\t  Consequently,\t the
\nPolice\tOfficer,  Sarnath closed the investigation  of\tP.S.
\nCase No. 100\/83 by making a final report.\n<\/p>\n
14.By  a  notification\tdated 18-6-1984\t the  Government  of
\nIndia, Ministry of Home Affairs entrusted the  investigation
\nof Chutia Police Case No. 27 to the CBI with the consent  of
\nthe  Government\t of  Bihar.  The CBI on\t the  basis  of\t the
\nwritten\t report\t dated\t1-2-1984  made\tby  Bineet,  PW\t  69
\nregistered  the case No. RC-2\/84 on 28-6-1984 under  Section
\n120-B  read  with Sections 302\/364\/201 of  the\tPenal  Code.
\nShri Madanlal, PW 85, Senior Inspector of CBI, New Delhi was
\nthe   Investigating  Officer  of  this\tcase.\tBy   another
\nnotification   dated  14-9-1984\t the   Central\t Government,
\nMinistry  of  Home Affairs entrusted  the  investigation  of
\nSarnath\t P.S.  Case  No. 100\/83 also to\t the  CBI  with\t the
\nconsent\t  of  the  Government  of  Uttar  Pradesh  and\t the
\ninvestigation  of  this\t case  was  entrusted  to  the\t CBI
\nInspector Rajendra Singh, PW 82.\n<\/p>\n
15.The\tInvestigating Officers Madanlal PW 85  and  Rajendra
\nSingh  PW 82 seized the entire records of Chutia  P.S.\tCase
\nNo.  27\/84  as well as the records of Samath P.S.  Case\t No.
\n100\/83.\t Both these Investigating Officers visited and
\n94<\/span>
\ninspected the Ranchi House No. 936 of appellant Suresh Bahri
\nsituated  at  Station Road, along with\tsome  experts  where
\nmurder\tof Urshia Bahri is said to have been  committed.   A
\nsteel trunk containing bloodstains and some scrapings of the
\nbloodstains  of the wall of the room were seized which\twere
\nexamined  by the Serologist and found it to be stained\twith
\nhuman  blood.\tA  sketch  map\tof  the\t alleged  place\t  of
\noccurrence  was prepared.  The photographs of the dead\tbody
\ntaken  by  the photographer, Ashok Kumar, PW 48\t in  Sarnath
\nP.S.  Case No. 100\/83 were identified by the  witnesses\t who
\nhad  seen Saurabh Bahri during his lifetime and stated\tthat
\nthe  photographs were of Saurabh Bahri, indicating  that  it
\nwas  the  body of Saurabh who was  murdered.   The  articles
\ngadda,\tquilt  and bedsheets seized  from  Panchkoshi  Road,
\nVaranasi were also identified as belonging to the  appellant
\nSuresh Bahri.\n<\/p>\n
16.The\tappellant  Gurbachan  Singh  was  already   arrested
\nearlier\t by  Rajeshwar\tSingh  (PW  59),  In-charge,  Police
\nStation\t Chutia (Ranchi) before 22-4-1984 when\tcharge-sheet
\nby  Chutia  Police was filed, though  further  investigation
\ncontinued by CBI, in pursuance of notification issued by the
\nGovernment  of India.  During the course  of  investigation,
\nRajeshwar  Singh,  PW 59, interrogated Gurbachan  Singh\t who
\nmade  disclosure statement that he had thrown the dead\tbody
\nof Urshia Bahri in Madhukam dump known as “Khad gaddha”.  On
\ndigging\t of the said dumping pit no dead body was  recovered
\nbut  a piece of blanket, saree and rope were recovered\tfrom
\nthere  which  were  seized as per seizure  memo\t Ext.  5\/12.
\nThese articles were put on the test identification parade on
\n6-3-1984  in which the witnesses Murari Lal Sharma PW 1\t and
\nB.N.  Mishra PW 2 had identified the said articles of  piece
\nof  blanket,  saree  and rope to be the\t materials  used  in
\nwrapping the dead body of Urshia Bahri on 11-10-1983.\n<\/p>\n
17.The\tappellant  Suresh Bahri was absconding\tbut  he\t was
\narrested  on  31-7-1984\t at Delhi.  The\t appellant  Raj\t Pal
\nSharma was arrested at Delhi by CBI Officer on 8-8-1984.  He
\nwas  produced before the Metropolitan Magistrate, New  Delhi
\non 8-8-1984 and police remand for 10 days was obtained.\t  On
\n12-8-1984  while  in police custody, Raj Pal Sharma  made  a
\ndisclosure  statement,\tExt.  32 to  the  CBI  Investigating
\nOfficer\t Madanlal,  PW 85.  In pursuance of  the  disclosure
\nstatement   the\t  appellant   Raj  Pal\t Sharma\t  took\t the
\nInvestigating  Officer and witnesses to the said  forest  on
\nRanchi-Patratru\t Road.\tThe skull, some hairs and pieces  of
\ncotton\twere recovered from the bushes of the forest at\t the
\ninstance  of the appellant Raj Pal Sharma which were  seized
\nas per seizure memo Ext. 33 dated 12-8-1984.  The said skull
\nwas  sent  to  Dr  Harish  Chander,  Director,\tMedico-Legal
\nInstitute  and Head of the Forensic Science, Gandhi  Medical
\nCollege, Bhopal for examination.  Dr Harish along with\tsome
\nother experts examined the said skull and found that it\t was
\nof a female aged about 33 years with a margin of plus  minus
\nfive  years on either side.  Dr Harish for want\t of  certain
\ninformation  could not definitely opine that the said  skull
\nwas that of Urshia Bahri.\n<\/p>\n
18.The\tInvestigating Officers detected that one  Ram  Sagar
\nVishwakarma,  an employee of the appellant  Gurbachan  Singh
\nwas also associated in hatching the conspiracy to commit the
\nmurder\tof  Urshia and her two children.   They,  therefore,
\narrested Ram Sagar Vishwakarma on 3-12-1984 and produced him
\nbefore\tthe Chief Judicial Magistrate, Ranchi  on  4-12-1984
\nwho remanded him
\n95<\/span>
\nto police custody till 17-12-1984.  On 17-12-1984 Ram  Sagar
\nVishwakarma  filed  a  petition\t Ext.  3  before  the  Chief
\nJudicial   Magistrate\tfor   recording\t  his\tconfessional
\nstatement.  The Judicial Magistrate, Shri Bhuneshwar Ram  PW
\n76  recorded  the  confessional statement  Ext.\t 28\/1  under
\nSection 164 Criminal Procedure Code of Ram Sagar Vishwakarma
\non  19-12-1984,\t 20-12-1984 and 21-12-1984.   Thereafter  on
\n8-1-1985 Ram Sagar Vishwakarma made a petition to tile Chief
\nJudicial  Magistrate, Ranchi that he may be  granted  pardon
\nand  he be made a prosecution witness.\tThe  Chief  Judicial
\nMagistrate granted pardon to Ram Sagar Vishwakarma by  order
\ndated 9-1-1985 and accepted him as an approver and  recorded
\nthe  statement\tof  Ram Sagar Vishwakarma  on  30-1-1986  as
\napprover   under  Section  306\tof  the\t Code  of   Criminal
\nProcedure.   Thereafter, Ram Sagar Vishwakarma\twas  granted
\nbail  by the order of the High Court dated 13-1-1987 and  he
\nwas released from custody on 21-1-1987.\n<\/p>\n
19.All the accused persons were charged and tried as said in
\nthe earlier part of this judgment.  All the accused  persons
\nincluding  the\tthree  appellants  denied  their  guilt\t and
\npleaded\t false implication.  The appellant Suresh  Bahri  in
\nhis  statement under Section 313 CrPC stated that  his\twife
\nUrshia\tBahri and his two children were not murdered at\t all
\nand  that  they were still alive.  The appellants  took\t the
\ndefence\t that the prosecution has failed to prove factum  of
\ndeath  of Urshia Bahri and her two children and that in\t any
\ncase  the  prosecution has failed to bring  home  the  guilt
\nagainst\t any of the appellants for alleged murders and\tthey
\nhave been implicated only on the basis of suspicion.\n<\/p>\n
20.On evaluation of the evidence adduced by the\t prosecution
\nand relying on various circumstances found to be established
\nagainst the three appellants which according to the  learned
\ntrial  Judge  are of conclusive nature and  consistent\tonly
\nwith the hypothesis of the guilt of the appellants convicted
\nand sentenced them as said above.  The said conclusions\t and
\nfindings  found favour with the High Court also\t in  appeals
\nand,  therefore,  the  High Court dismissed  all  the  three
\nappeals affirming the conviction and sentence awarded by the
\ntrial court.\n<\/p>\n
21.At  the very outset we may mention that sometimes  motive
\nplays  an important role and becomes a compelling  force  to
\ncommit\ta crime and therefore motive behind the crime  is  a
\nrelevant factor for which evidence may be adduced.  A motive
\nis  something which prompts a person to form an\t opinion  or
\nintention to do certain illegal act or even a legal act\t but
\nwith  illegal means with a view to achieve  that  intention.
\nIn  a  case  where there is clear proof of  motive  for\t the
\ncommission  of\tthe crime it affords added  support  to\t the
\nfinding\t of  the court that the accused was  guilty  of\t the
\noffence charged with.  But it has to be remembered that\t the
\nabsence\t of  proof of motive does not  render  the  evidence
\nbearing\t  on   the   guilt  of\t the   accused\t nonetheless
\nuntrustworthy  or unreliable because most often it  is\tonly
\nthe  perpetrator  of the crime alone who knows\tas  to\twhat
\ncircumstances  prompted\t him to a certain course  of  action
\nleading to the commission of the crime.\t In the present case
\nbefore\tus  the prosecution has adduced\t evidence  that\t the
\nappellant  Suresh Bahri had strong motive to  eliminate\t his
\nwife  and two children from his way which evidence has\tbeen
\naccepted  by  both the courts below.  We  shall,  therefore,
\nhave  a\t look at the said evidence to see  whether  the\t two
\ncourts\tare  justified or not in taking the  view  that\t the
\nappellant  Suresh  Bahri  had a strong\tmotive\tto  hatch  a
\nconspiracy with the
\n96<\/span>
\nassistance  of\tthe other two appellants,  namely,  Raj\t Pal
\nSharma and Gurbachan Singh to commit the murder of his\twife
\nand the two children.\n<\/p>\n
22.According  to  the prosecution the  motive  behind  the
\nmurder\tof Urshia Bahri and her two children is said  to  be
\nthe strained relations and differences between the  deceased
\nUrshia\tand her husband, the appellant Suresh Bahri and\t her
\nmother-in-law, Smt Santosh Bahri (since acquitted) which had
\ndeveloped  on  account\tof the\tfirm  determination  of\t the
\ndeceased  Urshia Bahri to dispose of House No. 936  situated
\non  the Station Road, Ranchi and migrate along with her\t two
\nchildren  to America where her parents were already  settled
\nbecause\t her  life and that of her two children\t had  become
\nmiserable due to the mental and physical tortures caused  by
\nSuresh\tBahri,\this mother Santosh and maternal\t uncle\tY.D.
\nArya  (since  acquitted).   It is said\tthat  the  acquitted
\naccused Smt Santosh Bahri had started causing harassment  to
\nher  daughter-in-law  the deceased Urshia  in  diverse\tways
\nafter her marriage with the appellant Suresh who  maintained
\na quiescence and never intervened in the maltreatment  meted
\nout  to her.  It is said that the systematic course of\till-
\ntreatment  meted  out to Urshia was communicated by  her  to
\nsome  of  her  relatives  and  parents\torally\tand  through
\nletters.   Admittedly at the time when Urshia was wedded  to
\nthe  appellant Suresh, his maternal uncle Y.D.\tArya  (since
\nacquitted) was also living with Suresh and his mother in the
\nsame  house  and used to interfere not only  in\t the  family
\nmatters but in the business affairs also by reason of  which
\nSuresh\thad suffered great setback and loss to his  property
\nand  business assets at Calcutta.  Consequently\t Urshia\t had
\ndeveloped  a dislike towards Y.D. Arya and  ultimately\tArya
\nwas  made  to  leave  Delhi house at  the  instance  of\t the
\ndeceased.   It is also said that the acquitted\taccused\t Smt
\nSantosh\t Bahri mother-in-law of deceased Urshia had no\tlove
\nand  affection\teither for Urshia or for her  two  children,
\nnamely, Richa and Saurabh and for that reason she never kept
\nthe  children with her.\t According to the prosecution it  is
\nin  this background that the deceased Urshia was  forced  to
\ntake  the  decision in her own interest and  to\t fulfil\t her
\ndreams of a better future of her two children, to dispose of
\nthe  Ranchi house and migrate to America along with her\t two
\nchildren  with the sale proceeds of the property and  settle
\ndown  there.   But  the\t idea of  migration  with  the\tsale
\nproceeds  of the house entertained by late Urshia could\t not
\nbe  cherished by appellant Suresh Bahri and, therefore,\t the
\nappellant  Suresh  Bahri hatched a conspiracy with  the\t two
\nconvicted  associates  Raj Pal Sharma and  Sardar  Gurbachan
\nSingh  to eliminate his wife and two children from  his\t way
\nonce  for  all and to achieve this objective all  the  three
\nappellants  are said to have systematically  executed  their
\nscheme\tin  a planned way in the commission  of\t murders  of
\nUrshia and her two children on two different dates at Ranchi
\nand  Dhulli farmhouse of appellant Suresh Bahri.  This\tpart
\nof  the prosecution story is said to be established  by\t the
\ndocumentary  as\t well as the oral evidence  which  we  shall
\nrefer to briefly hereinafter.\n<\/p>\n
23.Murarilal Sharma PW 1 is the next door neighbour of the
\nappellant  Suresh  Bahri, his house-cum-grocery\t shop  being
\njust adjacent to the Station Road house of Suresh at Ranchi.
\nHe  deposed in para 3 of his deposition that  the  appellant
\nSuresh\tBahri  used  to tell him that  there  were  frequent
\nfamily\tsquabbles between him and his wife  deceased  Urshia
\nand his mother Smt Santosh Bahri on account of his  maternal
\nuncle Y.D. Arya and the insistence of
\n97<\/span>
\nhis wife for sale of their house at Ranchi and go to America
\nwith her children with the sale proceeds.  The witness\talso
\ndeposed\t that Suresh Bahri told him that in fact he did\t not
\nwant  to  dispose  of  the said\t house\tand  was  very\tmuch
\ndisturbed on account of the frequent quarrels.\tThe  witness
\nalso stated that Suresh had also told him that his  children
\nwere spoilt due to the encouragement by Urshia and they\t had
\nno  respect for his mother by reason of which he was fed  up
\nwith this world and most often thought to put an end of\t the
\nentire family along with his own life.\n<\/p>\n
24.Dinanath  Sharma,  PW 6 is the witness who has  been\t the
\nclassmate  of  the  appellant Suresh Bahri  and\t the  entire
\nfamily of Suresh Bahri is known to him.\t He was on  visiting
\nterms  also.   This  witness  has  also\t deposed  that\t the
\nrelations  between  the\t appellant  Suresh  Bahri  and\t his
\ndeceased  wife\tUrshia were strained since after  about\t two
\nyears of their marriage.  He deposed that as and when he met
\nUrshia she always complained against the behaviour of Suresh
\ntowards\t her.  Almost similar is the statement of  Moolchand
\nPW  24 who worked as mali at the Ranchi house  of  appellant
\nSuresh.\t Smt Surina Narula PW 66 is the sister, Bineet Singh
\nSarang\tPW  69 is the brother and informant and\t Smt  Rohtas
\nSarang\tPW  79 is the mother of the deceased  Urshia  Bahri.
\nThey  all deposed that the relations between  the  appellant
\nSuresh\tBahri and his deceased wife Urshia were not  cordial
\nbut strained as Urshia used to complain against her husband,
\nmother-in-law  and  the\t maternal  uncle  of  her   husband.
\nAccording  to  the  evidence of Badri Narayan  Mishra  PW  2
\nthrough whom Laxmi Narayan PW 21 had negotiated for purchase
\nof  the Ranchi house, it turns out that the deal was  almost
\nfinalised  for\tpurchase  of the house by him  but  for\t the
\nsudden\tdisappearance of Smt Urshia on 11-10-1983, the\tsame
\ncould not take place.\n<\/p>\n
25.Besides the aforementioned oral evidence the\t prosecution
\nhas  produced  documentary  evidence  also  to\tsupport\t the
\nallegation  that the relations of the appellant Suresh,\t his
\nmother and maternal uncle were not cordial with the deceased
\nUrshia Babri and that the deceased Urshia was determined  to
\nsell  out the Ranchi house and migrate to America  with\t her
\nchildren  and  the sale proceeds against the wishes  of\t the
\nappellant Suresh Bahri and his mother.\tThe trial court\t has
\nelaborately  dealt  with the documentary  evidence  in\tthis
\nbehalf.\t  The High Court has also in paragraphs 25 to 28  of
\nits  judgment not only discussed but has reproduced  various
\nletters written by deceased Urshia to her parents in America
\nto  show  the  sufferings and state of\tmind  of  Urshia  on
\naccount\t of  the behaviour meted out to her by\ther  husband
\nSuresh Bahri and her mother-in-law and her determination  to
\nsell  out the house and shift to America and arrived at\t the
\nconclusion that the appellant Suresh had a strong motive  to
\ncommit the murder of his wife Urshia and her two children in
\nconspiracy with the other two appellants.  It is, therefore,
\nnot  necessary for us to discuss the entire  evidence  again
\nwhich  has  been evaluated by the two courts  below.   On  a
\nclose  scrutiny\t of  the  evidence on  this  point  we\tfind
\nourselves  in complete agreement with the view expressed  by
\nthe learned trial Judge and the High Court.  The argument of
\nthe  learned  counsel for the appellant that even if  it  is
\naccepted  that\tthere were strained  relations\tand  serious
\ndifferences  between the deceased Urshia and  the  appellant
\nSuresh\tBahri,\this mother Santosh and maternal\t uncle\tY.D.
\nArya,  yet Suresh would not go to the extent of\t hatching  a
\nconspiracy  and\t actually  killing  his\t wife  and  the\t two
\nchildren does not appeal to
\n98<\/span>
\nus and we are not at all convinced by this argument  because
\ndifferent    persons   react   differently    under    given
\ncircumstances.\tIt is difficult to lay down a hard and\tfast
\nrule  as to how and in what manner a person would react\t and
\nto  achieve  his  motive  could go to  what  extent  in\t the
\ncommission of crime under a particular circumstance.  It  is
\nnot  possible  to  measure up the extent  of  his  feelings,
\nsentiments  and desire and say as to what compelled  him  to
\ncommit\ta particular crime.  There may be persons who  under
\nfrustration  and  on  mere trifling  domestic  matters\ttake
\ndecision  to  commit  a\t serious  crime,  while\t others\t may
\napproach  it  with  cool  and  calm  mind  and\tthink\tmore
\ndispassionately\t before\t taking any  hazardous\tand  serious
\nsteps.\tIt all depends as to how a person reacts in a  given
\ncircumstance and it is he alone who best knows his intention
\nand motive to commit a crime and the extent thereof.  In the
\npresent case, it appears that the appellant Suresh Bahri was
\nunder the misguided apprehension that the murder of his wife
\nUrshia\talone would not be safe as the survival of  the\t two
\nchildren may ultimately expose him of the murder of his wife
\nUrshia and therefore, he was left with no option but to wipe
\nof  the entire family and clear the deck for smooth sail  in
\nlife  as a freelancer which to his misfortune proved  to  be
\ntoo  expensive as he had not only to pay the price with\t his
\nown life but also the lives of his two associates who helped
\nhim actively in the commission of the crime in question.\n<\/p>\n
26.Learned  Senior Counsel Shri Sushil Kumar  appearing\t for
\nthe  appellant Raj Pal Sharma submitted that in view of\t the
\nfact that no question relating to motive having been put  to
\nthe  appellants on the point of motive under Section 313  of
\nthe Code of Criminal Procedure, no motive for the commission
\nof  the\t crime can be attributed to the appellants  nor\t the
\nsame can be reckoned as circumstance against the appellants.
\nIt  is\tno  doubt true that  the  underlying  object  behind
\nSection\t 313  CrPC is to enable the accused to\texplain\t any
\ncircumstance appearing against him in the evidence and\tthis
\nobject\tis based on the maxim audi alteram partem  which  is
\none  of\t the principles of natural justice.  It\t has  always
\nbeen   regarded\t unfair\t to  rely  upon\t any   incriminating
\ncircumstance without affording the accused an opportunity of
\nexplaining   the  said\tincriminating\tcircumstance.\t The
\nprovisions in Section 313, therefore, make it obligatory  on
\nthe  court  to\tquestion the accused  on  the  evidence\t and
\ncircumstance appearing against him so as to apprise him\t the
\nexact  case which he is required to meet.  But it would\t not
\nbe  enough  for\t the accused to show that he  has  not\tbeen
\nquestioned  or examined on a particular circumstance but  he
\nmust  also show that such non-examination has  actually\t and
\nmaterially  prejudiced\thim and has resulted in\t failure  of
\njustice.   In  other words in the event of  any\t inadvertent
\nomission on the part of the court to question the accused on
\nany  incriminating  circumstance appearing against  him\t the
\nsame cannot ipso facto vitiates the trial unless it is shown
\nthat some prejudice was caused to him. In Bejoy Chand  Patra
\nv.  State of W.B. 1 this Court took the view that it is\t not
\nsufficient  for the accused merely to show that he  has\t not
\nbeen  fully  examined  as required by  Section\t342  of\t the
\nCriminal  Procedure Code (now Section 313 in the  new  Code)
\nbut  he must also show that such examination has  materially
\nprejudiced him.\t The same view was again reiterated by\tthis
\nCourt in Rama
\n1 1952 Cri LJ 644: AIR 1952 SC 105 : 1952 SCR 202
\n99<\/span>
\nShankar\t Singh v. State of W.B.2 In the present case  before
\nus it may be noted that no such point was raised and no such
\nobjection  seems  to have been advanced\t either\t before\t the
\ntrial court or the High Court and it is being raised for the
\nfirst  time before this Court which appears to us to  be  an
\nafterthought.\tSecondly, learned counsel appearing for\t the
\nappellants was unable to place before us as to what in\tfact
\nwas the real prejudice caused to the appellants by  omission
\nto question the accused\/appellant Suresh Bahri on the  point
\nof  his motive for the crime.  No material was\talso  placed
\nbefore\tus  to\tshow  as to what  and  in  what\t manner\t the
\nprejudice,  if any, was caused to the appellants or  any  of
\nthem.\n<\/p>\n
27.Apart from what has been stated above, it may be  pointed
\nout that it cannot be said that the appellants were  totally
\nunaware of the substance of the accusation against them with
\nregard\tto the motive part.  In this regard a reference\t may
\nbe  made to Question Nos. 5, 6 and 7 which were put  to\t the
\nappellant  Suresh  Bahri  in the  course  of  his  statement
\nrecorded  under Section 313 CrPC.  The sum and substance  of
\nthese  questions  is that from the prosecution\tevidence  it
\nturns out that the acquitted accused Y.D. Arya the  maternal
\nuncle of the appellant Suresh Bahri was living in a  portion
\nof  the\t upper storey of his house at Delhi.   He  with\t the
\nconsent\t of  Santosh Bahri the mother of Suresh\t Bahri,\t was
\ninterfering  in\t the family affairs as well as\tin  business
\nmatters\t by reason of which the maternal uncle had to  leave
\nthe  house  and\t that having regard to\tthe  future  of\t her
\nchildren Urshia Bahri not only wanted to manage the property
\nbut  also  to  dispose of the same which was  not  liked  by
\nSuresh Bahri and with a view to remove Urshia Bahri from his
\nway the appellant Suresh Bahri wanted to commit her  murder.
\nIn view of these questions and examination of Suresh  Bahri,
\nit  cannot  be\tsaid  that he was  totally  unaware  of\t the
\nsubstance  of the accusation and charge against him or\tthat
\nhe  was not examined on the question of motive at  all.\t  In
\nthe  facts  and circumstances discussed above it  cannot  be
\nsaid  that any prejudice was caused to the  appellant.\t The
\ncontention of the learned counsel for the appellants in this
\nbehalf therefore has no merit.\n<\/p>\n
28.Learned counsel for the appellants strenuously urged that
\nthere  was  utter non-compliance of clauses (a) and  (b)  of
\nsub-section  (4)  of  Section 306 of the  Code\tof  Criminal
\nProcedure inasmuch as that after recording the statement  of
\nthe approver Ram Sagar Vishwakarma under Section 164 of\t the
\nCode  of Criminal Procedure and after tendering him  pardon,
\nthe  approver  was not examined as witness  by\tthe  learned
\nMagistrate  who took cognizance of the offence, as  required
\nby clause (a) of sub-section (4) of Section 306 CrPC but  he
\nwas  examined as a witness by the committal Magistrate\tonly
\nafter  the Court of Sessions remitted the case back  to\t the
\ncommittal Magistrate for examining the approver as a witness
\nin accordance with Section 306(4)(a) CrPC.  Secondly  clause\n<\/p>\n
(b)  of Section 306(4) mandates that the approver  shall  be
\ndetained  in  custody  until the termination  of  the  trial
\nunless\the  is\talready on bail but  contrary  to  that\t the
\napprover  was enlarged on bail after he was  granted  pardon
\nand as such the trial was vitiated.  Reliance was placed  on
\nthe decisions in Kalu Khoda
\n2 AIR 1962 SC 1239, para 14: (1962) 2 Cri LJ 296: 1962\tSupp
\n(1) SCR 49
\n100<\/span>
\nV.   State3; Ramasamy, Re4 and Uravakonda Vijayaraj Paul  v.
\nState5 in support of\t his above submissions.\n<\/p>\n
29.    Section\t306  of\t the  Code  of\tCriminal   Procedure
\n(hereinafter referred to as   ‘the  Code’)  relates  to\t the
\ntender\tof  pardon  to an accomplice and  the  procedure  of
\ncommitting  the case for trial.\t It would be appropriate  to
\nreproduce Section 306 of the Code which reads as under:\n<\/p>\n
\t      “306.   Tender of pardon to  accomplice.-\t (1)
\n\t      With  a view to obtaining the evidence of\t any
\n\t      person  supposed\tto  have  been\tdirectly  or
\n\t      indirectly concerned in or privy to an offence
\n\t      to  which\t this  section\tapplies,  the  Chief
\n\t      Judicial\t Magistrate   or   a\tMetropolitan
\n\t      Magistrate  at any stage of the  investigation
\n\t      or inquiry into, or the trial of, the offence,
\n\t      and   the\t Magistrate  of\t the   first   class
\n\t      inquiring\t into or trying the offence, at\t any
\n\t      stage  of the inquiry or trial, may  tender  a
\n\t      pardon  to  such person on  condition  of\t his
\n\t      making a full and true disclosure of the whole
\n\t      of  the  circumstances  within  his  knowledge
\n\t      relative\tto  the offence and to\tevery  other
\n\t      person  concerned,  whether  as  principal  or
\n\t      abettor, in the commission thereof.
\n\t      (2)   This section applies to-\n<\/p><\/blockquote>\n
\t      (a)   any\t offence triable exclusively by\t the
\n\t      Court of Session or by the Court of a  Special
\n\t      Judge   appointed\t under\tthe   Criminal\t Law
\n\t      Amendment Act, 1952 (46 of 1952);\n<\/p><\/blockquote>\n
\t      (b)   any offence punishable with imprisonment
\n\t      which may extend to seven years or with a more
\n\t\t\t    severe sentence.\n<\/p><\/blockquote>\n
\t      (3)Every\tMagistrate who tenders\ta  pardon
\n\t      under sub-section (1) shall record-\n<\/p><\/blockquote>\n
\t      (a)   his reasons for so doing;\n<\/p><\/blockquote>\n
\t      (b)   whether  the  tender  was  or  was\t not
\n\t      accepted by the person to whom it was made,
\n\t      and shall, on application made by the accused,
\n\t      furnish him with a copy of such record free of
\n\t      cost.\n<\/p><\/blockquote>\n
\t      (4)   Every  person  accepting  a\t tender\t  of
\n\t      pardon made under sub-section\n<\/p><\/blockquote>\n
\t      (a)   shall  be examined as a witness  in\t the
\n\t      Court  of the Magistrate taking cognizance  of
\n\t      the  offence and in the subsequent  trial,  if
\n\t      any;\n<\/p><\/blockquote>\n
\t      (b)   shall, unless he is already on bail,  be
\n\t      detained\tin custody until the termination  of
\n\t      the trial.\n<\/p><\/blockquote>\n
\t      (5)Where a person has accepted a tender  of
\n\t      pardon made under subsection (1) and has\tbeen
\n\t      examined under sub-section (4), the Magistrate
\n\t      taking   cognizance  of  the  offence   shall,
\n\t      without  making  any further  inquiry  in\t the
\n\t      case,-\n<\/p><\/blockquote>\n
\t      (a)   commit it for trial-\n<\/p><\/blockquote>\n
\t      (i)   to\tthe Court of Session if the  offence
\n\t      is triable exclusively by that Court or if the
\n\t      Magistrate  taking  cognizance  is  the  Chief
\n\t      Judicial Magistrate;\n<\/p><\/blockquote>\n
\t      3\t AIR 1962 Guj 283, FB :(1962) 2 Cri  U\t604:<\/p><\/blockquote>\n
\n\t      (1962) 3 Guj LR 654\n\t      4\t    1976 Cri LJ 770 : 1976 Mad LJ (Cri) 111:\n\t      1976 Mad LW (Cri) 36 (Mad)\n\t      6\t    1986 Cri LJ 2104: (1986) 1 Andh LT\t364:\n\t      (1986) 2 APLJ (HC) 19 (AP)\n\t      101<\/span>\n\t      (ii)to  a Court of Special  Judge\t appointed\n<\/pre>\n
\t      under the Criminal Law Amendment Act, 1952 (46
\n\t      of   1952),   if\tthe   offence\tis   triable
\n\t      exclusively by that Court;\n<\/p><\/blockquote>\n
\t      (b)   in any other case, make over the case to
\n\t      the  Chief Judicial Magistrate who  shall\t try
\n\t      the case himself.\n<\/p><\/blockquote>\n
30.  A\tbare  reading of clause (a) of\tsub-section  (4)  of
\nSection\t 306 of the Code will go to show that  every  person
\naccepting  the tender of pardon made under  sub-section\t (1)
\nhas  to\t be  examined  as a witness  in\t the  Court  of\t the
\nMagistrate  taking  cognizance\tof the offence\tand  in\t the
\nsubsequent trial, if any.  Sub-section (5) further  provides
\nthat the Magistrate taking cognizance of the offence  shall,
\nwithout making any further enquiry in the case commit it for
\ntrial  to any one of the courts mentioned in clauses (i)  or\n<\/p>\n
(ii)  of clause (a) of subsection (5), as the case  may\t be.
\nSection\t 209 of the Code deals with the commitment of  cases
\nto the Court of Session when offence is tried exclusively by
\nthat  court.  The examination of accomplice or\tan  approver
\nafter  accepting  the tender of pardon as a witness  in\t the
\nCourt of the Magistrate taking cognizance of the offence  is
\nthus a mandatory provision and cannot be dispensed with\t and
\nif this mandatory provision is not complied with it vitiates
\nthe trial.  As envisaged in sub-section (1) of Section\t306,
\nthe  tender  of\t pardon is made on  the\t condition  that  an
\napprover shall make a full and true disclosure of the  whole
\nof  the circumstances within his knowledge relating  to\t the
\noffence.  Consequently, the failure to examine the  approver
\nas a witness before the committing Magistrate would not only
\namount\tto breach of the mandatory provisions  contained  in
\nclause\t(a) of sub- section (4) of Section 306 but it  would
\nalso  be inconsistent with and in violation of the  duty  to
\nmake a full and frank disclosure of the case at all  stages.
\nThe breach of the provisions contained in clause (a) of sub-
\nsection (4) of Section 306 is of a mandatory nature and\t not
\nmerely directory and, therefore, non-compliance of the\tsame
\nwould  render  committal  order\t illegal.   The\t object\t and
\npurpose\t in enacting this mandatory provision  is  obviously
\nintended  to provide a safeguard to the accused inasmuch  as
\nthe approver has to make a statement disclosing his evidence
\nat the preliminary stage before the committal order is\tmade
\nand  the  accused  not only becomes aware  of  the  evidence
\nagainst\t him but he is also afforded an opportunity to\tmeet
\nwith the evidence of an approver before the committing court
\nitself\tat the very threshold so that he may take  steps  to
\nshow   that  the  approver’s  evidence\tat  the\t trial\t was
\nuntrustworthy  in  case\t there\tare  any  contradictions  or
\nimprovements  made by him during his evidence at the  trial.
\nIt  is for this reason that the examination of the  approver
\nat  two\t stages\t has  been provided  for  and  if  the\tsaid
\nmandatory provision is not complied with, the accused  would
\nbe  deprived  of the said benefit.  This may  cause  serious
\nprejudice to him resulting in failure of justice as he\twill
\nlose  the opportunity of showing the approver’s evidence  as
\nunreliable.   Further  clause  (b)  of\tsub-section  (4)  of
\nSection\t 306  of  the  Code will also go  to  show  that  it
\nmandates  that a person who has accepted a tender of  pardon
\nshall,\tunless he is already on bail be detained in  custody
\nuntil  the  termination of the trial.  We  have,  therefore,
\nalso to see whether in the instant case these two  mandatory
\nprovisions  were complied with or not and if the  same\twere
\nnot  complied  with,  what  is the effect  of  such  a\tnon-
\ncompliance on the trial?\n<\/p>\n
102<\/span><\/p>\n
31.  It may be noted that the approver Ram Sagar Vishwakarma
\nhereinafter  referred to as Ram Sagar was arrested on  3-12-
\n1984  and was under police remand till 17-12-1984.  He\tmade
\nan  application\t Ext.  3 on  17-12-1984\t for  recording\t his
\nconfessional statement under Section 164 of the Code and his
\nconfessional statement Ext. 28\/1 was recorded on  19-12-1984
\nto 21-12-1984 by the Magistrate Shri Bhuneshwar Nath PW\t 76.
\nThereafter  on\t7-1-1985 CBI Investigating Officer  made  an
\napplication  that  Ram\tSagar  be  granted  pardon  and\t his
\nstatement  be recorded under Section 306 of the\t Code.\t The
\napprover Ram Sagar also made an application Ext.1 for  grant
\nof  pardon  on 8-1-1985 stating that he wanted to  become  a
\nprosecution witness and make disclosure of true facts of the
\ncase.  Learned Chief Judicial Magistrate tendered pardon  to
\nRam  Sagar by his order dated 9-1-1985 stating that  he\t was
\ndirectly concerned with the commission of the crime relating
\nto  the offence of murders in question.\t The  learned  Chief
\nJudicial  Magistrate  committed\t the case to  the  Court  of
\nSession\t for trial without examining the approver Ram  Sagar
\nas  a  witness\tin his court.  But  the\t learned  Additional
\nJudicial Commissioner, Ranchi to whom the case was committed
\nfor  trial  noticed this defect that the  approver  was\t not
\nexamined  as  a witness in the Court  of  Magistrate  taking
\ncognizance of the offence and committed him for trial before
\nhim and, therefore, learned Additional Judicial Commissioner
\nremanded  the  case  back to the  Court\t of  Chief  Judicial
\nMagistrate  with a direction to record the statement of\t the
\napprover Ram Sagar as required by clause (a) of\t sub-section
\n(4) of Section 306 of the Code.\t After receiving the records
\nwith  the aforesaid directions learned\tMagistrate  examined
\nthe  approver Ram Sagar as a witness on 31-1-1986  and\tthen
\nagain  committed  him for trial to the Court  of  Additional
\nCommissioner.  Thus in any case the provisions of clause (a)
\nof  sub-section (4) of Section 306 were ultimately  complied
\nwith.\tThat  being  so, with no stretch of  any  amount  of
\narguments  can\tit be said that any prejudice much  less  in
\ndisadvantage  was caused to any of  the\t accused\/appellants.
\nThe order of the Additional Judicial Commissioner  remanding
\nthe  case back to the Court of Magistrate directing  him  to
\nexamine\t the  approver as a witness was\t challenged  by\t the
\naccused persons in the High Court of Patna, Ranchi Bench but
\nthe  High  Court  maintained the  order\t of  the  Additional
\nJudicial Commissioner in Criminal Revision No. 2347 of 1985.
\nThis  order of the High Court was not challenged further  by
\nany  of\t the  appellants and  same  attained  finality\tand,
\ntherefore, it cannot be questioned now.\n<\/p>\n
32.  It\t may  be  noticed that similar\tquestion  arose\t for
\nconsideration  of  Madras High Court in\t Ramasamy,  Re4\t and
\nrelied on by the learned counsel for appellants, wherein the
\nlearned\t Magistrate had committed the case for trial to\t the
\nCourt  of  Sessions  without examining\tthe  approver  as  a
\nwitness\t in  his  court before\tcommitting  the\t case.\t But
\nPandian,  J. (as he then was) took the view that the  action
\nof  the\t Magistrate in committing the case to the  Court  of
\nSession without examining the approver was a clear violation
\nof  the mandatory provisions of Section 306 of\tsub-sections
\n(4)  and  (5)  of  the new Code and  as\t such  he  committed
\nirregularity.\tThe  learned Judge, therefore,\tquashed\t the
\ncommittal  order and directed the Magistrate to comply\twith
\nthe  provisions of Section 306 of the Code by examining\t the
\napprover  and then again pass fresh order of  committal,  if
\ncalled for.  In almost similar circumstances similar view
\n103<\/span>
\nwas taken by the High Court of Andhra Pradesh in the case of
\nU.  Vijayaraj5\tand  in this case also\tthe  Magistrate\t was
\ndirected to examine the approver as required by\t sub-section
\n(4)  of Section 306 of the Code by giving an opportunity  to
\nthe accused to cross-examine the approver and then pass\t the
\nappropriate orders in accordance with law.\n<\/p>\n
33.  In Kalu Khoda3 similar question came for  consideration
\nbefore the Full Bench of the Gujarat High Court wherein\t the
\ncommitting Magistrate committed the accused to the Court  of
\nSession\t without examining the person who had been  tendered
\npardon\tand who had accepted the same.\tThe Full  Bench\t set
\naside  the  committal  order  and  directed  the  committing
\nMagistrate  to hold a fresh enquiry in accordance with\tlaw.
\nThe  ultimate result of the aforesaid discussion is that  if
\nthe  said  defect  of  not examining  the  approver  at\t the
\ncommittal  stage by the committing Magistrate  is  rectified
\nlater,\tno prejudice can be said to be caused to an  accused
\nperson and therefore the trial cannot be said to be vitiated
\non  that  account.  Since in the present  case,\t as  noticed
\nabove the defect was rectified, the argument that the  trial
\nwas vitiated cannot be accepted.\n<\/p>\n
34.  As\t regards the contention that the trial was  vitiated
\nby  reason of the approver Ram Sagar being released on\tbail
\ncontrary  to the provisions contained in clause (b) of\tsub-
\nsection\t (4) of Section 306 of the Code.  It may be  pointed
\nout  that  Ram\tSagar after he was  granted  pardon  by\t the
\nlearned\t Magistrate  by his order dated\t 9-1-1985,  was\t not
\ngranted\t bail either by the committing Magistrate or by\t the
\nlearned Additional Judicial Commissioner to whose court\t the
\ncase  was committed for trial.\tThe approver Ram Sagar\twas,
\nhowever,  granted bail by an order passed by the High  Court
\nof  Patna, Ranchi Bench in Criminal Miscellaneous  Case\t No.
\n4735  of 1986 in pursuance of which he was released on\tbail
\non  21-1-1987 while he was already examined as a witness  by
\nthe committing Magistrate on 30-1-1986 and 31-1-1986 and his
\nstatement in sessions trial was also recorded from  6-9-1986
\nto  19-11-1986.\t  It  is no doubt true that  clause  (b)  of
\nSection 306(4) directs that the approver shall not be set at
\nliberty\t till  the  termination of  the\t trial\tagainst\t the
\naccused persons and the detention of the approver in custody
\nmust  end with the trial.  The dominant object of  requiring
\nan approver to be detained in custody until the\t termination
\nof  the\t trial is not intended to punish  the  approver\t for
\nhaving\tcome  forward  to give evidence in  support  of\t the
\nprosecution   but   to\tprotect\t him   from   the   possible
\nindignation,  rage  and resentment of his  associates  in  a
\ncrime whom he has chosen to expose as well as with a view to
\nprevent\t him  from  the temptation of saving  his  one\ttime
\nfriends\t and  companions  after he  is\tgranted\t pardon\t and
\nreleased from custody.\tIt is for these reasons that  clause\n<\/p>\n
(b) of Section 306(4) casts a duty on the court to keep\t the
\napprover  under detention till the termination of the  trial
\nand thus the provisions are based on statutory principles of
\npublic policy and public interest, violation of which  could
\nnot  be tolerated.  But one thing is clear that the  release
\nof an approver on bail may be illegal which can be set aside
\nby  a superior court, but such a release would not have\t any
\naffect on the validity of the pardon once validly granted to
\nan  approver.\tIn  these  circumstances  even\tthough\t the
\napprover   was\tnot  granted  any  bail\t by  the   committal
\nMagistrate or by the trial Judge yet his release by the High
\nCourt would not in any way affect the validity of the pardon
\ngranted to the approver Ram Sagar.\n<\/p>\n
104<\/span><\/p>\n
35.Learned counsel for the appellants next contended  that
\nthe  statement\tExt.  28\/1  of\tthe  co-accused\t Ram   Sagar
\nVishwakarma who turned as an approver recorded under Section
\n164 of the Code after about 16 days of his arrest cannot  be
\nsaid  to  be  voluntary\t confession  particularly  when\t the
\nMagistrate did not inform him that he would not be  remanded
\nto  police  custody  after the statement.   It\twas  further
\nsubmitted  that\t in any case the statement of  the  approver
\nmade under Section 164 was made under constant fear and with
\na promise of immunity because he was given to understand  by
\nthe CBI officials that he would be set at liberty in case he
\nmade the confessional statement.\n<\/p>\n
36.After the perusal of the statement of Ram Sagar PW 3 as
\nwell as the statement of learned Magistrate Shri  Bhuneshwar
\nRam  PW\t 76 who recorded the statement of  Ram\tSagar  under
\nSection 164 of the Code we find that there is absolutely  no
\nsubstance in these submissions.\n<\/p>\n
37.Ram\tSagar  Vishwakarma was arrested on  3-12-1984.\t A
\nperusal of the statement of Ram Sagar made under Section 164
\nof  the\t Code  will  go to show\t that  he  himself  made  an
\napplication  Ext. 3 before the Magistrate requesting him  to
\nrecord his confessional statement and according to Ram Sagar
\nit  was\t at his instance and request that  his\tconfessional
\nstatement  Ext.\t 28\/1 was recorded by the Magistrate  PW  76
\nfrom 19-12-1984 to 21-12-1984 in which he had confessed\t the
\nguilt.\t Ram Sagar PW 3 stated that the Magistrate had\ttold
\nhim  that it was his own choice and volition to make or\t not
\nto  make  the confessional statement and that  he  made\t the
\nstatement  on his free will.  He denied the suggestion\tthat
\nwhile  making  the statement under Section  164\t any  police
\nofficer was present there and deposed that he was not  given
\nany  assurance by the CBI officials that if he would  become
\napprover  he would be set at liberty or discharged from\t the
\ncase.\tHe, however, stated that he himself thought that  if
\nhe  made correct statement before the Magistrate he  may  be
\nset at liberty.\t He asserted that he made a true  disclosure
\nof  the\t circumstances relating to the\toffence\t before\t the
\nMagistrate  in his statement under Section 164\tirrespective
\nof the fact whether he would be released or not.  Ram  Sagar
\nwas  subjected\tto  a  very  lengthy  and  searching  cross-
\nexamination  in\t this regard but nothing could\tbe  elicited
\nfrom him to suggest that he did not make true disclosure  of
\nthe  facts of the case or that he made the confession  under
\nthreat or pressure or on any assurances from the prosecuting
\nagency\tor  from any official in authority.   The  statement
\nthat he made gives an impression that it was made on his own
\nvolition which fact is further fortified from the  statement
\nof the Judicial Magistrate who recorded his statement.\n<\/p>\n
38.The Judicial Magistrate, Ranchi, Shri Bhuneshwar Ram PW
\n76,  on\t the  order passed  by\tChief  Judicial\t Magistrate,
\nRanchi, recorded the confessional statement of Ram Sagar  PW
\n3 as stated earlier from 19-12-1984 to 21-12-1984 which\t was
\nmarked\tas  Ext.  28\/1.\t Shri Bhuneshwar  Ram  deposed\tthat
\nbefore\trecording the statement of Ram Sagar  under  Section
\n164 he had given the necessary warning to him as required by
\nlaw  and  this fact is borne out from the  certificate\tExt.
\n‘A’  appended to that effect in the  confessional  statement
\nExt.  28\/1  before he proceeded to  record  the\t confession.
\nThis is indicative of the fact that he did caution Ram Sagar
\nand  sounded a note of warning that he is not bound to\tmake
\nthe confessional statement and if he chooses to make any the
\nsame  may be used against him and it was thereafter that  he
\nmade the confession
\n105<\/span>
\nvoluntarily on his own volition.  He deposed that Ram  Sagar
\ndid  not  tell him that he made his  confessional  statement
\nunder any threat or fear or on any promise.  In view of this
\npositive  evidence on record it is difficult to accept\tthat
\nthe  confessional statement made by the approver  Ram  Sagar
\nunder  Section 164 CrPC was not voluntary or under any\tfear
\nor  promise or assurance.  On the contrary we find that\t the
\nconfession is free from all infirmities and conforms to\t the
\nrequirements of Section 164.\n<\/p>\n
39.The\tprosecution case, for the sake of scrutiny of  the
\nevidence  and discussion may be bifurcated into\t two  parts,
\none relating to the murder of Urshia Bahri in the evening of
\n11-10-1983  and the other relating to the murder of the\t two
\nchildren, namely, Richa and Saurabh in the intervening night
\nof 17-12-1983 and 18-12-1983 although all the three  murders
\nstem out of one and the same conspiracy to do away with\t the
\nlives of all the three deceased persons and both the acts on
\ntwo different dates are so connected that they form the same
\ntransaction.   It  is true that there is  no  eyewitness  to
\neither\tof the two incidents and the prosecution case  rests
\non  the\t evidence of the approver Ram Sagar (PW 3)  and\t the
\ncircumstantial\tevidence  advanced by the  prosecution.\t  We
\nshall  therefore deal with the evidence of each of  the\t two
\nincidents one after the other.\n<\/p>\n
40.Learned  counsel  appearing for the appellant  Raj  Pal
\nSharma\tnext contended that there is no direct\tevidence  or
\nocular testimony with regard to the alleged murder either of
\nUrshia\tBahri or that of her two children Richa and  Saurabh
\nand the conviction of the appellants has been founded on the
\napprover’s   evidence  and  other  circumstantial   evidence
\nadduced by the prosecution.  Learned counsel submitted\tthat
\nthe  two  courts below are not justified in relying  on\t the
\nevidence  of  accomplice\/approver  Ram\tSagar  PW  3   whose
\nevidence is not free from serious doubt particularly in view
\nof  the\t fact  that  he was examined as\t a  witness  by\t the
\ncommitting Magistrate on 30-1-1985 after about one year\t and
\ntwo  months  of the occurrence.\t It was urged  that  in\t the
\nabsence\t  of  corroboration  of\t material   particulars\t  no
\nconviction  can be based on the testimony of  an  accomplice
\nand  since the circumstances alleged against the  appellants
\nare  not proved to the hilt, the same cannot be regarded  as
\ncomplete  chain\t of circumstances  established\tagainst\t the
\nappellants  so\tas to base their convictions  on  the  same.
\nSimilar\t arguments  were  advanced by  the  learned  counsel
\nappearing  for\tthe appellants Suresh  Bahri  and  Gurbachan
\nSingh.\t Before\t we discuss the merits or  demerits  of\t the
\naforesaid  submissions we would like to state that  the\t law
\nrelating  to conviction based on circumstantial evidence  is
\nwell settled and it hardly requires a detailed discussion on
\nthis  aspect.\tSuffice to say that in a case of  murder  in
\nwhich the evidence that is available is only  circumstantial
\nin  nature  then in that event the facts  and  circumstances
\nfrom  which the conclusion of guilt is required to be  drawn
\nby  the\t prosecution must be fully  established\t beyond\t all
\nreasonable   doubt  and\t the  facts  and  circumstances\t  so
\nestablished should not only be consistent with the guilt  of
\nthe accused but they also must entirely be incompatible with
\nthe  innocence\tof  the\t accused  and  must  exclude   every
\nreasonable hypothesis consistent with his innocence.\n<\/p>\n
41.In  order to meet the aforementioned arguments  of  the
\nlearned counsel for the appellants, we shall now proceed  to
\nstate  the  law\t relating  to the  grant  of  pardon  to  an
\naccomplice\/approver,  the  value  of his  evidence  and\t the
\nextent of reliance that can be placed on his evidence.\n<\/p>\n
106<\/span><\/p>\n
42.We have already reproduced above Section 306 of the\tCode
\nthe  provisions\t of  which  apply  to  any  offence  triable
\nexclusively  by\t the Court of Special Judge to\tany  offence
\npunishable  with  imprisonment extending to seven  years  or
\nwith a more serious sentence.  Section 306 of the Code\tlays
\ndown  a clear exception to the principle that no  inducement
\nshall be offered to a person to disclose what he knows about
\nthe  procedure\t(sic).\t Since many a  times  the  crime  is
\ncommitted  in  a manner for which no clue or  any  trace  is
\navailable  for\tits  detection\tand,  therefore,  pardon  is
\ngranted\t for  apprehension of the other\t offenders  for\t the
\nrecovery of the incriminating objects and the production  of
\nthe evidence which otherwise is unobtainable.  The  dominant
\nobject\tis  that  the offenders of  the\t heinous  and  grave
\noffences do not go unpunished, the Legislature in its wisdom
\nconsidered  it\tnecessary  to  introduce  this\tsection\t and
\nconfine\t its operation to cases mentioned in Section 306  of
\nthe  Code.  The object of Section 306 therefore is to  allow
\npardon\tin  cases where heinous offence is alleged  to\thave
\nbeen  committed by several persons so that with the  aid  of
\nthe evidence of the person granted pardon the offence may be
\nbrought home to the rest.  The basis of the tender of pardon
\nis  not the extent of the culpability of the person to\twhom
\npardon\tis  granted,  but the principle is  to\tprevent\t the
\nescape of the offenders from punishment in heinous  offences
\nfor  lack of evidence.\tThere can therefore be no  objection
\nagainst tender of pardon to an accomplice simply because  in
\nhis  confession, he does not implicate himself to  the\tsame
\nextent\tas  the other accused because all that\tSection\t 306
\nrequires  is  that  pardon may be  tendered  to\t any  person
\nbelieved  to be involved directly or indirectly in or  privy
\nto an offence.\n<\/p>\n
43.The\tevidence  of an approver does not  differ  from\t the
\nevidence  of any other witness except that his\tevidence  is
\nlooked upon with great suspicion.  Consequently in the event
\nthe  suspicion\twhich  is attached to  the  evidence  of  an
\naccomplice  is not removed his evidence could not  be  acted
\nupon unless corroborated in material particulars.  But where
\nthe suspicion is removed and the evidence of an approver  is
\nfound  to be trustworthy and acceptable then  that  evidence
\nmay  be\t acted\tupon  even  without  corroboration  and\t the
\nconviction  may be founded on such a witness.  Here in\tthis
\nconnection it would be appropriate to make reference to\t the
\nprovisions  of\tSection 133 of the Evidence Act\t which\tdeal
\nwith  the testimony of an accomplice.  It contemplates\tthat
\nan  accomplice\tshall  be a  competent\twitness\t against  an
\naccused\t person;  and  a conviction is\tnot  illegal  merely
\nbecause it proceeds upon the uncorroborated testimony of  an
\naccomplice.  The first part envisages that an accomplice, in
\nother  words,  a  guilty  companion in\tcrime,\tshall  be  a
\ncompetent   witness  while  the\t second\t part  states\tthat
\nconviction is not illegal merely because it is based on\t the
\nuncorroborated\ttestimony of an accomplice.  But if we\tread
\nSection\t 133  of the Evidence Act with illustration  (b)  of
\nSection\t 114  of  the Evidence Act it may  lead\t to  certain
\namount of confusion and misunderstanding as to the real\t and
\ntrue intention of the Legislature because quite contrary  to
\nwhat is contained in Section 133 illustration (b) to Section
\n114  of\t the Evidence Act lays down “that an  accomplice  is
\nunworthy  of credit, unless he is corroborated\tin  material
\nparticulars”.  A combined reading of the two provisions that
\nis  Section  133  and illustration (b)\tof  Section  114  of
\nEvidence  Act goes to show that it was considered  necessary
\nto place the law of accomplice evidence on a better
\n107<\/span>
\nfooting\t by stating in unambiguous terms that  according  to
\nSection\t 133 a conviction is “not illegal or in other  words
\nnot   unlawful”\t merely\t because  it  is  founded   on\t the
\nuncorroborated\ttestimony of an accomplice  while  accepting
\nthat an accomplice is a competent witness.  But at the\tsame
\ntime  the  Legislature\tintended  to  invite  attention\t  to
\nillustration  (b) of Section 114 of the Evidence Act with  a
\nview to emphasise that the rule contained therein as well as
\nin  Section  133 are parts of one and the same\tsubject\t and
\nneither\t  can  be  ignored  in\tthe  exercise  of   judicial
\ndiscretion  except  in\tcases of  very\texceptional  nature.
\nHowever, the difficulty in understanding the combined effect
\nof  the aforementioned two provisions arises largely due  to
\ntheir placement at two different places of the same Act.  It
\nmay be noticed that illustration (b) attached to Section 114
\nis  placed in Chapter VII of Evidence Act while Section\t 133
\nis inserted in Chapter IX of the Act.  The better course was
\nto insert illustration (b) to Section 114 as an\t explanation
\nor  in\tany  ease as a proviso to Section  133\tof  the\t Act
\ninstead of their insertion at two different places and\tthat
\ntoo in different chapters of the Evidence Act.\tIn any\tcase
\nsince  an  approver  is a guilty  companion  in\t crime\tand,
\ntherefore,  illustration (b) to Section 114 provides a\trule
\nof  caution to which the courts should have regard.   It  is
\nnow  well settled by a long series of decisions that  except
\nin  circumstances  of special nature it is the duty  of\t the
\ncourt  to raise the presumption in Section 114\tillustration\n<\/p>\n
(b) and the Legislature requires that the courts should make
\nthe  natural presumption in that section as would  be  clear
\nfrom the decisions which we shall discuss hereinafter.\n<\/p>\n
44.  In\t Bhiva\tDoulu Patil v. State  of  Maharashtra6\tthis
\nCourt took the view that the combined effect of Sections 133
\nand  114,  illustration\t (b)  may  be  stated  as   follows.
\nAccording  to  the  former,  which is  a  rule\tof  law,  an
\naccomplice  is competent to give evidence and  according  to
\nthe  latter which is a rule of practice it is almost  always
\nunsafe\tto  convict upon his  testimony\t alone.\t  Therefore,
\nthough\tthe conviction of an accused on the testimony of  an
\naccomplice cannot be said to be illegal yet the courts\twill
\nas  a matter of practice, not accept the evidence of such  a
\nwitness\t without  corroboration\t in  material\tparticulars.
\nThere  should be corroboration of the approver\tin  material
\nparticulars and qua each accused.  Similar observations were
\nmade  by this Court in Ram Narain v. State of Rajasthan7  in
\nthe following words: (SCC headnote)
\n\t      “Section\t 133  expressly\t provides  that\t  an
\n\t      accomplice  is  a competent  witness  and\t the
\n\t      conviction  is not illegal merely\t because  it
\n\t      proceeds\ton  uncorroborated testimony  of  an
\n\t      accomplice.   In\tother  words,  this  section
\n\t      renders\t admissible   such    uncorroborated
\n\t      testimony.   But this section has to  be\tread
\n\t      along  with illustration (b) to  Section\t114.
\n\t      The  latter  section  empowers  the  court  to
\n\t      presume the existence of certain facts and the
\n\t      illustrations  elucidate\twhat the  court\t may
\n\t      presume and make clear by means of examples as
\n\t      to  what facts the court shall have regard  in
\n\t      considering   whether   or  not\tthe   maxims
\n\t      illustrated  apply to a given case before\t it.
\n\t      Illustration (b) in express terms says that an
\n\t      accomplice is unworthy of credit unless he  is
\n\t      corroborated  in\tmaterial  particulars.\t The
\n\t      statute  permits the conviction of an  accused
\n\t      person   on   the\t basis\t of   uncorroborated
\n\t      testimony\t of  an accomplice but the  rule  of
\n\t      prudence embodied in
\n\t      6 AIR 1963 SC 599 :(1963) 1 Cri LJ 489 :\t1963
\n\t\t\t    All LJ 253
\n\t      7 (1973) 3 SCC 805 : 1973 SCC (Cri) 545
\n\t      108<\/span>
\n\t      illustration (b) of Section 114 strikes a note
\n\t      of  warning  cautioning  the  court  that\t  an
\n\t      accomplice  does not generally deserve  to  be
\n\t      believed\t unless\t corroborated  in   material
\n\t      particulars.  In other words, the rule is that
\n\t      the necessity of corroboration as a matter  of
\n\t      prudence\texcept when it is safe\tto  dispense
\n\t      with   such  corroboration  must\tbe   clearly
\n\t      present to the mind of the Judge.”\n<\/p>\n
45.  Further  in  Ravinder Singh v. State of  Haryana8\tthis
\nCourt while considering the approver’s testimony within\t the
\nmeaning\t of  Section  133  of  the  Evidence  Act  made\t the
\nfollowing observations: (SCC headnote)
\n\t      “An approver is a most unworthy friend, if  at
\n\t      all,   and  he,  having  bargained   for\t his
\n\t      immunity,\t  must\tprove  his  worthiness\t for
\n\t      credibility in court.  This test is fulfilled,
\n\t      firstly, if the story he relates involves\t him
\n\t      in the crime and appears intrinsically to be a
\n\t      natural and probable catalogue of events\tthat
\n\t      had taken place.\tThe story if given of minute
\n\t      details  according with reality is  likely  to
\n\t      save  it\tfrom  being  rejected  brevi   manu.\n<\/p>\n
\t      Secondly,\t once  that hurdle is  crossed,\t the
\n\t      story  given  by\tan approver so\tfar  as\t the
\n\t      accused on trial is concerned, must  implicate
\n\t      him  in  such a manner as to give\t rise  to  a
\n\t      conclusion  of guilt beyond reasonable  doubt.
\n\t      In a rare case, taking into consideration\t all
\n\t      the  factors,  circumstances  and\t  situations
\n\t      governing a particular case, conviction  based
\n\t      on the uncorroborated evidence of an  approver
\n\t      confidently  held to be true and\treliable  by
\n\t      the  court  may be  permissible.\t Ordinarily,
\n\t      however,\tan  approver’s statement has  to  be
\n\t      corroborated in material particulars  bridging
\n\t      closely the distance between the crime and the
\n\t      criminal.\t   Certain  clinching  features\t  of
\n\t      involvement    disclosed\t by   an    approver
\n\t      appertaining   directly  to  an  accused,\t  if
\n\t      reliable,\t as determined by the touchstone  of
\n\t      other  independent  credible  evidence,  would
\n\t      give  the needed assurance for  acceptance  of
\n\t      his  testimony  on which a conviction  may  be
\n\t      based.”\n<\/p>\n
Thus it is clear that a definite rule has been\tcrystallized
\nto  the\t effect\t that though a conviction can  be  based  on
\nuncorroborated\tevidence of an accomplice but as a  rule  of
\nprudence   it\tis   unsafe  to\t place\t reliance   on\t the
\nuncorroborated\ttestimony  of  an approver  as\trequired  by
\nillustration (b) of Section 114 of the Evidence Act.\n<\/p>\n
46.  The  two courts below after a thorough  examination  of
\nthe  statement of the approver Ram Sagar PW 3 took the\tview
\nthat   his  testimony  was  corroborated  on  all   material
\nparticulars by the independent witnesses and, therefore,  he
\nwas worthy of reliance.\t Ordinarily this Court under Article
\n136  of the Constitution does not review and reappraise\t the
\nevidence for itself and the conclusions of the High Court on
\nquestions of fact or appreciation of evidence are considered
\nto  be\tfinal.\tIt is, therefore, not necessary\t for  us  to
\nscrutinize  the evidence of approver threadbare\t again.\t  We
\nshall,\thowever,  scrutinize  his  evidence  on\t broad\t and
\nmaterial  particulars to satisfy ourselves whether  the\t two
\ncourts below were justified in recording conclusion that the
\ntestimony of the approver deserved credence.\n<\/p>\n
47.  The  examination of the approver Ram Sagar\t Vishwakarma
\ncommenced  in  the  trial  court on 6-1-1986  as  PW  3\t and
\ncontinued  for\tseveral\t days in which he  deposed  that  he
\nworked in the furniture shop of the appellant S. Gurbachan
\n8 (1975) 3 SCC 742: 1975 SCC (Cri) 202 : AIR 1975 SC 856
\n109<\/span>
\nSingh  from 1979 to 1984, which covers the relevant  period.
\nHe  stated that the appellant Suresh Bahri was known to\t him
\nas  he\tused to visit the shop of S. Gurbachan\tSingh  quite
\noften  and wife and the children of Suresh also visited\t the
\nshop.\tHe stated that on 4-10-1983 while he was going\tfrom
\nthe  shop  after the work was over the\tappellant  Gurbachan
\nSingh  stopped him and said that he had some important\twork
\nwith him.  Gurbachan Singh then took him into confidence and
\nenquired of him whether he knew anyone who could commit\t the
\nmurder\tof  the wife of his friend.  When  the\twitness\t Ram
\nSagar PW 3 enquired of him as to which friend, the appellant
\nGurbachan Singh told that the wife of Suresh Bahri is to  be
\nmurdered  on  account  of the  family  dispute.\t  Ram  Sagar
\nfurther stated that next day when he again went to the shop,
\nGurbachan  Singh again in the presence of  appellant  Suresh
\nBahri  persuaded him for the same thing attracting him\twith
\nan  allurement that he will not be required to pay back\t the
\nmoney taken by him as an advance and on the contrary he will
\nask  Suresh  also  to  give him\t some  more  money  for\t the
\nassistance rendered by him.  Ram Sagar then asked them as to
\nwhat  he had to do.  The appellant Suresh told him  that  he
\nhas to prepare and bring a danda (baton) to his bungalow and
\nhide  it  in  the shrubs of the bungalow.   He\twas  further
\nadvised\t by Suresh that while they would be busy  in  taking
\ntea  he should strike the baton on the head of his wife\t and
\nmake  her unconscious and rest of the work will be  done  by
\nhimself\t and S. Gurbachan Singh.  Ram Sagar further  deposed
\nthat  he  prepared a baton as advised and he along  with  S.
\nGurbachan Singh went to the house of Suresh Bahri on scooter
\nat 7.30 p.m. and kept the baton under the shrubs of a flower
\nplant  as directed by Gurbachan Singh and sat at  the  place
\nwhere  scooter was parked by Gurbachan Singh.  At that\ttime
\nSuresh Bahri and two others were taking tea in the  verandah
\nof the house of Suresh Bahri.  After five minutes those\t two
\npersons went away from there.  Meanwhile the wife of  Suresh
\nBahri came in the verandah from inside and pointing  towards
\nhim, enquired from Suresh as to who was sitting in the\tdark
\nnear  the  scooter.  Suresh told that he was  labour  of  S.
\nGurbachan  Singh.  After some time S. Gurbachan\t Singh\ttook
\nhim on the scooter and came back saying that since there  is
\nfrequency  of  visitors, it is not possible to\texecute\t the
\nwork.\n<\/p>\n
48.  Ram  Sagar\t PW 3 further stated that next day  when  he
\nagain attended the shop of Gurbachan Singh for work as usual
\nthe appellant Suresh came there at about 10.00 a.m. and told
\nto  Ram Sagar that the baton he had prepared will  not\twork
\nbeing  very  thin and asked him to prepare  a  heavy  baton.
\nThen he along with S. Gurbachan Singh proceeded to the house
\nof Suresh Bahri at about 7.30 p.m. same day, but he  stopped
\nthe scooter on the way and Ram Sagar declined to go with him
\nsaying\tthat  it  was the festival day and  the\t police\t was
\npatrolling the area.  S. Gurbachan Singh also did not go  to
\nthe  house  of Suresh that day as he too had to\t go  to\t the
\nhospital.   Next day the appellant Suresh Bahri came to\t the
\nshop  of  S. Gurbachan Singh and asked the  reason  for\t not
\nreaching  his  house  the previous day.\t  According  to\t the
\nstatement  of  Ram Sagar Suresh again  approached  Gurbachan
\nSingh  at his shop next day saying that the work has  to  be
\ndone  urgently\tand  if\t it  could  not\t be  done  that\t day
\n‘Machhiwala’  would come for registration of sale  deed\t and
\nthen  Gurbachan\t Singh took him on a scooter that  very\t day
\ni.e. 11-10-1983 at about 4.30 p.m. to a house in the Railway
\nColony, Ranchi for taking measurements for fixing doors\t and
\nwindows and while they
\n110<\/span>
\nwere returning at about dusk on 11-10- 1983 Gurbachan  Singh
\ntook him to the house of Suresh Bahri.\tGurbachan Singh\t met
\nSuresh in the verandah of his house.  After having some talk
\nin  the verandah both Gurbachan Singh and Suresh Bahri\twent
\ninside the house.  But immediately Gurbachan Singh came\t out
\nand  called  the witness Ram Sagar.  On being  asked  by  S.
\nGurbachan  Singh  he  went  inside  but\t remained   standing
\ndumbfounded  at the door of the small room connecting a\t big
\nroom.\tGurbachan Singh called him inside but he ignored  as
\nhis  body began to tremble and Gurbachan Singh made him\t sit
\non the sofa and served him a glass of water.  Ram Sagar goes
\non  to state that when he was standing near the door of\t the
\nroom he saw the dead body of the wife of Suresh Bahri in the
\nsmall  room.  He saw her head totally severed and  separated
\nfrom the body placed on a cotton in the corner of the  room.
\nThe appellant Raj Pal Sharma was also present there  putting
\non only underwear and was seen collecting the blood with the
\ncotton.\t  He stated that at that time a lamp was burning  in
\nthe drawing room and a candlestick was burning in the  small
\nroom and that there was no other person except Suresh Bahri,
\nRaj Pal Sharma, S. Gurbachan Singh and Ram Sagar himself.\n<\/p>\n
49.  Ram Sagar PW 3 further deposed that a saree was kept by
\nthe side of the dead body which was stained with blood and a
\nlong  knife  was kept near the head which was  given  by  S.
\nGurbachan  Singh  a  few days prior  to\t the  occurrence  to
\nRameshwar   Thakur  PW\t4  an  employee\t of  the  shop\t for
\nsharpening.   A\t short\twhile later there came\ta  sound  of
\nopening the gate of the compound of Suresh Bahri  indicating
\nthat  someone was coming.  A person came and as soon  as  he
\nstepped\t forward to go to the verandah the appellant  Suresh
\nBahri  went out caught hold of that person by his  hand\t and
\ntook  him down the verandah.  That man enquired from  Suresh
\nabout  his wife saying ‘where is Mem Saheb’ meaning  thereby
\nthe wife of Suresh.  Suresh Bahri told him that his wife had
\ngone to the house of S. Gurbachan Singh for dinner and\tfrom
\nthere she will proceed to Delhi by the next morning  flight.
\nSuresh\tthen took that man out of the compound of his  house
\nand  returned  back.   Then  Suresh  Bahri  went  out  on  a
\nmotorcycle   along  with  Gurbachan  Singh   directing\t the
\nappellant  Raj Pal Sharma to clean all stains  properly\t and
\nthat they will be returning shortly.  Both of them  returned
\nwithin\t10 minutes with a liquor bottle.  Since\t no  glasses
\nwere  available in the house Suresh Bahri went out to  bring
\nthe  glasses.  Murari Lal PW 1 came with four glasses  whose
\nhouse was situated adjacent to the house of Suresh and\tthen
\nwent  back.  All of them then consumed\tliquor.\t  Thereafter
\nwhen Ram Sagar PW 3 wanted to go Suresh made him to stay  in
\norder  to  help\t them in tying up  the\tdead  body.   Suresh
\nbrought\t a  plastic sheet from inside the  house.   Raj\t Pal
\nSharma\tspread\tthe plastic sheet in the room in  which\t the
\ndead  body  was laid and the witness Ram Sagar and  Raj\t Pal
\nSharma\tlifted\tthe dead body and placed it on\tthe  plastic
\nsheet.\t Suresh\t Bahri then tore half of the  saree  already
\nkept there and wrapped the dead body with it.  S.  Gurbachan
\nSingh  tore  a\tpiece of rope from  the\t cot,  Suresh  Bahri
\nbrought\t a blackish blanket and then the witness  Ram  Sagar
\nhimself\t and the appellant Raj Pal Sharma wrapped  the\tdead
\nbody in the blanket and tied it with the rope.\n<\/p>\n
50.  The  approver  Ram\t Sagar\tPW  3  further\tstated\tthat
\nappellant  Suresh Bahri asked Gurbachan Singh to  prepare  a
\nbox  with a view to put the dead body in the box  and  leave
\nthe box in any train.  But later on changed the idea because
\n111<\/span>
\nof the risk involved in carrying the dead body in the wooden
\nbox and decided to dump the dead body in sceptic tank of the
\nhouse  itself and to throw the head in some jungle.   Suresh
\nasked Gurbachan Singh to come to his bungalow at about\t7.30
\np.m. same day for purposes of dropping the dead body in\t the
\nsceptic\t tank.\t He, therefore, along with  Gurbachan  Singh
\nwent  to  the house of Suresh Bahri where Suresh  Bahri\t and
\nappellant Raj Pal were already present there.  Suresh  Bahri
\nand  Gurbachan\tSingh  asked  the  witness  Ram\t Sagar\t and
\nappellant  Raj Pal to take out the dead body from the  house
\nto dump it in the sceptic tank.\t Appellant Raj Pal attempted
\nto  lift  the body but could not and  then  Gurbachan  Singh
\nbrought\t a  bamboo ladder and with the help of\tladder\tthey
\ndumped\tthe  dead body in the sceptic tank situated  on\t the
\nsouthern  side\tof  the bungalow compound  of  Suresh.\t The
\nappellant Suresh then asked the appellant Gurbachan to bring
\nsome  salt for putting it in sceptic tank.  The witness\t Ram
\nSagar  and  Gurbachan Singh then brought 20  kg\t salt  after
\npurchasing it and the witness Ram Sagar and Raj Pat  dropped
\nthe  salt in the tank.\tThe approver Ram Sagar PW 3  further
\ndeposed that Suresh came to the furniture shop of his master
\nthe  following\tday at about 10 a.m. and reported  that\t the
\nhead of Urshia has been thrown in a forest.\n<\/p>\n
51.The approver Ram Sagar went on to state that on  21-10-
\n1983 Suresh told Gurbachan Singh that he was going to  Delhi
\nto  attend  some court case and would return up\t to  26\/27th
\nOctober.   But\twhen  Suresh did not  return  on  27-10-1983
\nGurbachan  Singh  sent him to Delhi but he  could  not\tmeet
\nSuresh Bahri there.  He was told by the Manager that he\t had
\ngone  to  Ranchi.   He\ttherefore  went\t to  Ranchi  on\t 4th
\nNovember.  There Gurbachan told him that Suresh had come  to
\nRanchi and was staying in Blue Heaven Hotel, Ranchi.  He met
\nSuresh Bahri in the said hotel.\t After a few days  Gurbachan
\nSingh  told  the witness that the Police  Inspector,  Chutia
\nPolice Station was searching Suresh Bahri in connection with
\nmurder of Urshia and, therefore, Gurbachan Singh sent him to
\nDelhi  to tell Suresh about it.\t The witness Ram Sagar\tcame
\nto  Delhi  and informed Suresh accordingly and\tSuresh\tsent
\nmessage\t to Gurbachan Singh to handle the matter  carefully.
\nRam Sagar also stated that Suresh had asked him to send four
\nchairs and one cot to his farmhouse at Dhulli.\n<\/p>\n
52.  Ram  Sagar further stated that he again came back\tfrom
\nDelhi  to  Ranchi on 20\/21-11-1983 where Suresh\t Bahri\ttold
\nGurbachan  that there is a red coloured attache kept in\t the
\nalmirah\t of his house in which there is a ‘chhuri’.   Suresh
\nasked  Gurbachan  to get the chhuri sharpened and  keep\t the
\nthree  kataries and chhuri in that very attache again.\t Ram
\nSagar  also  deposed that he had fixed the  handles  in\t the
\nthree  kataries and Gurbachan Singh had given him Rs 20\t for
\npurchasing  the kataries.  The witness Ram Sagar  was  shown
\nthe  kataries,\tExt. 5 which he identified to be  the  same.
\nRam Sagar goes on to state that he went to Dhulli farm along
\nwith  Gurbachan Singh with the said attache and the  bag  in
\nwhich  chhuri and kataries and some papers were\t kept.\t The
\nwitness\t Ram  Sagar was shown 13″-14″ long  knife  which  he
\nidentified  as the one with which wife of Suresh  Bahri\t was
\nmurdered.  At Dhulli farm Gurbachan Singh gave that  attache
\nto  the gardener of Suresh Bahri and asked him to  keep\t the
\nattache and give it to Suresh who was due to come within 3-4
\ndays.  Ram Sagar further stated that he had sent four chairs
\nand  one cot to Dhulli farm through the son of the  gardener
\nof Suresh.\n<\/p>\n
112<\/span><\/p>\n
53.Further  approver  Ram  Sagar PW  3\tdeposed\t that  one
\nmorning\t in the month of December appellant Raj\t Pal  Sharma
\ncame  to the shop of Gurbachan Singh and told him  that\t the
\nappellant  Suresh had come to Dhulli farm with his  children
\nand  he\t has  called Gurbachan Singh.\tThereafter  Raj\t Pal
\nSharma\tand  Gurbachan\tSingh  went  towards  Dhulli  on   a
\nmotorcycle.   A few days later Gurbachan Singh said  to\t Ram
\nSagar  PW  3  that the dead body has to be  taken  out\tfrom
\nsceptic tank and in this connection he may take the help  of
\nJohn Linda PW 31 and Manohar the employees of his shop.\t Ram
\nSagar further stated that he went to the bungalow of  Suresh
\nalong  with John Linda PW 31 and Manohar.  After taking\t out
\nsome  mud from the tank the dead body became  visible.\t Ram
\nSagar  told to John Linda that the dead body was dropped  in
\nthe  tank and he should not tell to S. Gurbachan Singh\tthat
\nIhad  told this fact to him.  At this John refused  to\ttake
\nout  the dead body.  Ram Sagar, therefore, along  with\tJohn
\nLinda and Manohar came back to his shop as both of them\t had
\nrefused\t to clean the tank and take out the dead  body.\t  At
\nthis appellant Gurbachan Singh went on a scooter saying that
\nhe  will  have to do the work himself.\t Ram  Sagar  further
\nstated\tthat Gurbachan Singh told to a truck driver  at\t the
\nshop  that he had purchased a piece of land where he had  to
\ndrop  some  soil  and if he finds any dead  body  there\t the
\ndriver\tshould\tthrow  it  away.   As  stated  earlier\t the
\nconfessional  statement\t of  approver Ram Sagar,  PW  3\t was
\nrecorded  by the learned Magistrate on 19-12-1984 to  21-12-
\n1984  and  he was examined on 30-1-1985 as  witness  in\t the
\nCourt  of  Magistrate under Section 306(4)(a) of  the  Code.
\nWhile his statement as PW 3 as recorded by the learned trial
\nJudge  on  6-9-1986  which continued for  several  days\t and
\nconcluded on 19-11-1986 as he was thoroughly  cross-examined
\nby  several learned counsel appearing for the appellants  as
\nwell  as for the three acquitted accused.  But we find\tthat
\nthe testimony of the approver remained consistent except for
\nminor  and insignificant contradictions and omissions  which
\nare bound to occur in the statement of anyone.\n<\/p>\n
54.The only question that now remains to be considered\tis
\nwhether\t the  evidence given by the  approver  has  received
\ncorroboration  in  material  particulars  from\t independent
\nsources.  We shall now first advert to the witness connected
\nwith  the murder of Urshia and the  circumstantial  evidence
\nrelating thereto.\n<\/p>\n
55.As  stated earlier Murari Lal, PW1 had a  grocery  shop
\njust  adjacent\tto the house of appellant  Suresh  Bahri  in
\nRanchi.\t  He  was  not only the next door  neighbour  but  a
\nfamily\tfriend of Suresh Bahri for the last about 15  to  20
\nyears prior to the occurrence and in fact he also served  as
\ncaretaker  of the Bungalow No. 936.  Murari Lal\t PW1  stated
\nthat the appellant Raj Pal Sharma met him for the first time
\non  26-9-1983  or 27-9-1983 when he came with  a  letter  of
\nSuresh stating therein that he should hand over the keys  of
\nthe  house  to\tRaj  Pal  Sharma.   Murari  Lal,  therefore,
\ndirected the gardener Mool Chand Mali PW 24 to allow Raj Pal
\nto  stay in the house where Raj Pal stayed  till  1-10-1983.
\nMurari Lal also stated that on 1-10-1983 when Suresh came to
\nRanchi accompanied by his wife Urshia, Raj Pal Sharma  could
\nnot be seen in the house thereafter and that he saw Raj\t Pal
\nSharma\tonly after 5-6 days later on Chutia Road along\twith
\nSuresh.\t  When\tMurari Lal enquired about  Raj\tPal  Sharma,
\nSuresh\ttold  him that he had arranged a job to him  in\t the
\nshop of S. Gurbachan Singh.  Murari Lal further
\n113<\/span>
\nstated that on 11-10-1983 at about 5.00 p.m. Suresh and\t his
\nwife Urshia came to his shop when he was told by Urshia that
\nboth  of  them\twould be leaving next  day  for\t Delhi\tand,
\ntherefore,  he\tshould\tnot give the bill  of  the  articles
\npurchased  by  them  from his shop on  credit.\t Murari\t Lal
\nfurther deposed that Badri Narayan Mishra PW 2 also came  to
\nhis shop at about 7.00 p.m. and told him that he had gone to
\nthe house of Suresh Bahri to meet Suresh and his wife but he
\ncould not meet his wife and was told by Suresh that his wife
\nhad  gone in a party to the house of S. Gurbachan Singh\t and
\nshe would be going to Delhi next morning by air direct\tfrom
\nhis  house.  Murari Lal PW1 went on to state that on  10-11-
\n1983  itself  at  about 8.00 p.m. he went to  the  house  of
\nSuresh\tBahri with the bills as required by them and  handed
\nover the bills to Suresh in the drawing room where he  found
\nGurbachan Singh and the approver Ram Sagar PW 3 also sitting
\non  a sofa.  He noticed that a kerosene lamp was lighted  in
\nthe  room  and\the saw Raj Pal Sharma  with  a\tbloodstained
\nchhura.\t  Suresh asked him for four empty glasses  which  he
\nsupplied  from his shop and came back to his  shop.   Suresh
\ntold him that payment of the bills would be made next day.\n<\/p>\n
56.Next\t morning  when\tMurari\tLal  PW1  noticed   Suresh
\nstanding outside his house, he told him that he had returned
\nback  from  airport after seeing off his wife.\t Murari\t Lal
\nalso  stated that he purchased some land from Suresh out  of
\nhis  Ranchi  house and one Arjun Sharma and  another  person
\nalso  purchased some land.  He further stated that  on\t6-1-
\n1984   Bhola  Nath  Choubey,  Rajan  Sharma  and   appellant
\nGurbachan  Singh had also purchased land out of\t the  Ranchi
\nproperty  of Suresh when Suresh was staying in Amber  Hotel,
\nRanchi.\t  From\tthe evidence of S. Ranjit Singh\t PW  18\t the
\nManager\t of Amber Hotel, Ranchi, it is evident\tthat  though
\nthe  appellant\tSuresh had his own house at  Ranchi  yet  he
\nprepared  to stay in Amber Hotel from 5-1-1984 to  9-1-1984,
\nin  the name of S. Chander and the handwriting\texpert\tS.C.
\nMittal PW 65 established that the entries in the Amber Hotel
\nregister were in the handwriting of appellant Suresh.\n<\/p>\n
57.Murari  Lal\tPW1  further deposed  that  the\t appellant
\nSuresh\thad asked Bhola Nath, one of the purchasers  of\t the
\nland to demolish the sceptic tank which existed in the\tland
\npurchased by him and on questioning by Bhola Nath the reason
\nfor so doing, the appellant Suresh said that he should speak
\nto  Gurbachan Singh in this connection.\t Murari\t Lal  stated
\nthat  in his presence Bhola Nath asked Gurbachan  Singh\t the
\nreason\tfor  demolition of the sceptic\ttank  but  Gurbachan
\nSingh did not disclose the same.  Murari Lal stated that  on
\n7-1-1984 Gurbachan Singh came to his house and told him that
\nhe  would himself demolish the sceptic tank and when  Murari
\nPW  1, along with Bhola Nath went to the sceptic  tank\tthey
\nmet Gurbachan Singh there who told that there was a headless
\nbody  in  the  sceptic tank tied with a\t blanket  and  rope.
\nGurbachan  Singh  told them to fill up the sceptic  tank  by
\ndumping\t red  soil in it.  At this Bhola Nath said  that  he
\nwould  like to take neat and clean land to  which  Gurbachan
\nSingh  agreed but at the same time gave a threat that if  he
\ndivulged  these\t facts to anybody else he would\t kidnap\t the
\nonly son of Bhola Nath and blow him with a bomb.  Murari Lal
\nstated that same evening Gurbachan Singh brought truck\tload
\nof  soil  in the compound of the house of Suresh  Bahri\t and
\nafter half an hour the truck went back.\t He stated that same
\nday at about 9.00 p.m. Gurbachan Singh again came to him and
\nasked  him  to call Choubey.  He called Bhola  Nath  Choubey
\nwhen  Gurbachan\t Singh told him that mall has  been  removed
\nfrom the
\n114<\/span>
\nsceptic\t tank (meaning thereby that the dead body  has\tbeen
\nremoved from the sceptic tank).\t When the witness Murari Lal
\nPW1  enquired  from  Gurbachan\tSingh as  to  where  has  he
\ndisposed  of  the same the later replied that  it  has\tbeen
\nthrown behind the hillock.\n<\/p>\n
58.Badri Narayan, PW 2 is yet another neighbour of Suresh at
\nRanchi who is fully known to his family for the last several
\nyears.\tBadri Narayan worked as an intermediary in the\tdeal
\nof the house between Urshia Bahri and Laxmi Narayan, PW\t 21,
\nwho wanted to purchase Ranchi house from Urshia.  He deposed
\nthat  the  deal was almost finalised.  He also\tstated\tthat
\nSuresh\tand his wife Urshia had come to Ranchi on  1-10-1983
\nand  Laxmi  Narayan, PW 21 came to him on 10th\tOctober\t and
\nexpressed the desire of his family members to see the  house
\nof Suresh on 11-10-1983.  Badri Narayan, therefore, conveyed
\nthis  information to Suresh and informed Laxmi Narayan\talso
\nthat the house can be seen in the afternoon of 11-10-1983 at
\nabout  7.30  p.m. when he went to the house  of\t Suresh,  he
\nnoticed\t no  light in the house though\tthere  was  electric
\nlight  in the adjoining houses.\t Badri Narayan\tstated\tthat
\nwhen  he  reached  near the door of  the  drawing  room\t the
\nappellant  Suresh  rushed  out\tand  took  him\tout  of\t the
\nverandah.   But while going out Badri Narayan saw  Gurbachan
\nSingh and one another man sitting on the sofa of the drawing
\nroom  whom  he identified as Ram Sagar PW 3.  Badri  Narayan
\nalso  saw while going away that a kerosene lamp was  lighted
\nin  the drawing room and a person was moving about from\t one
\nroom  to  another wearing only an underwear.  While  he\t was
\ntaken  out  of\tthe verandah Badri  Narayan  enquired  about
\nUrshia\tand Suresh told him that she had gone to a party  to
\nthe  house of Gurbachan Singh where she would be staying  in
\nthe night and proceed to Delhi by the morning flight.  Badri
\nNarayan also stated that after a few days Laxmi Narayan,  PW
\n21  told  him that although the deal was  finalised  but  he
\nnoticed\t that  other persons were digging earth\t for  laying
\nfoundation on the property and when they met Suresh he\ttold
\nthat  he would not sell the property but a memorial  of\t his
\nfather would be constructed there.  Laxmi Narayan, PW 21 got
\nsuspicious  and, therefore, he made enquiries from  Airlines
\nBooking\t Office,  Ranchi  and learnt that  no  person  named
\nUrshia\thad  travelled by air on 12-101983  from  Ranchi  to
\nDelhi.\t The  prospective  purchaser  Laxmi  Narayan  PW  21
\ncorroborated  the statement of Badri Narayan PW 2 so far  as
\nit  relates to the negotiations with regard to the  purchase
\nof the house is concerned.\n<\/p>\n
59.Rameshwar Thakur, PW 4, was also at the relevant time  an
\nemployee of Gurbachan Singh in his furniture shop who stated
\nabout his acquaintance with Suresh who was on friendly terms
\nwith his master and was a frequent visitor to his shop.\t  He
\nstated\tthat  sometime in the month of October\t1983  Suresh
\nvisited\t the  shop of Gurbachan Singh when  Gurbachan  Singh
\nhanded\tover  a\t dagger\t to  the  witness  to  sharpen\t it.
\nRameshwar  further  stated that after a couple\tof  days  he
\nreturned  the  dagger to Gurbachan Singh  after\t getting  it
\nsharpened.  As said John Linda, PW 31, was also an  employee
\nof Gurbachan Singh in his furniture shop.  Linda also stated
\nthat  he was acquainted with Suresh Bahri who made  frequent
\nvisits\tto  his master’s shop.\tHe  deposed  that  Gurbachan
\nSingh called him along with Ram Sagar, PW 3, at the house of
\nSuresh in the month of January 1984 for taking out soil from
\nthe sceptic tank but when he along with others after digging
\nthe  sceptic  tank noticed a bundle of dead body  tied\twith
\nblanket and rope, he became upset.  He further deposed\tthat
\nwhen Gurbachan
\n115<\/span>
\nSingh asked them to take out the dead body, they refused  to
\ncomply\tthe direction and he as well as other  workers\twent
\nback to the shop.\n<\/p>\n
60.Moolchand  Mali  PW 24 was the gardener at  the  relevant
\ntime in Ranchi House No. 936 of Suresh Bahri and lived in  a
\nservant quarter behind the bungalow.  He knew the family  of
\nSuresh Bahri very well.\t Moolchand stated that there used to
\nbe frequent dispute between Suresh Bahri, his mother and the
\ndeceased  wife of Suresh in connection with the sale of\t the
\nbungalow,  as  Urshia insisted for sale but Suresh  and\t his
\nmother\twere opposed to it.  He stated that one day  in\t the
\nmonth  of  Chaitra 1983 (much before the murder\t of  Urshia)
\nSuresh\tBahri took him behind the bungalow and told  that  a
\nperson has to be murdered and if he helped him in doing\t so,
\nhe  will  make him wealthy.  The witness replied  to  Suresh
\nthat  he would not be able to do it.  Suresh then asked\t him
\nto  call  someone  else for this  purpose  and\tthe  witness
\nreplied\t that  he  does not know any such  person  for\tthis
\npurpose.   At this Suresh asked him to make his\t arrangement
\nelsewhere.  The witness Moolchand deposed that thereafter he
\nmanaged\t his employment with Jogda Math and started  working
\nthere but he continued to live in the servant quarter in the
\nbungalow  of  Suresh.  He also stated that  Suresh  came  to
\nRanchi\talong  with  his  wife\tsometime  after\t the  summer
\nvacations  and one day he asked him to take him to one\tOjha
\nknown  as Lal Saheb.  He took Suresh to that Ojha who  lived
\nin  Chutia.  Suresh Bahri spoke to that Ojha that  his\twife
\nwas  mad and was a nuisance for him and hence he  wanted  to
\nbring  an  end to her life.  At this Ojha  demanded  Rs\t 250
\nsaying that his work would be done and Suresh complied\twith
\nthe directions given to him by that Ojha.  Moolchand further
\nstated that next day the appellant Suresh again took him  to
\nthat  Ojha  and complained that the work could not  be\tdone
\nthough\the had paid the desired amount of Rs 250.   At\tthis
\nthat Ojha said to Suresh that he will not be able to do\t his
\nwork and he may get it done from someone else.\n<\/p>\n
61.Witness Moolchand Mali, PW 24, corroborated the statement
\nof  Murari Lal PW1 stating that he was called by Murari\t Lal
\nwho  told  him that Suresh had sent a man (Raj\tPal  Sharma)
\nfrom  Delhi who will stay in the bungalow.  Murari Lal\tgave
\nhim  the  key  and  directed  him  to  open  the   bungalow.
\nMoolchand  further  stated that he opened the  bungalow\t for
\nthat  man  who was tall and thin and he identified  Raj\t Pal
\nSharma\tto  be that person who had stayed in  the  bungalow.
\nMoolchand further stated that Murari Lal Sharma had given Rs
\n10 for the meals of Raj Pal Sharma and therefore he took him
\nto the hotel where he took his meals.  Moolchand also stated
\nthat Raj Pal continued to stay in the bungalow for about 4-5
\ndays  when Suresh Bahri also came to Ranchi along  with\t his
\nwife and stayed in the bungalow.  Suresh asked Moolchand  to
\nvacate the quarter of the bungalow and therefore he  vacated
\nand left the place.\n<\/p>\n
62.Shambhu Tiwari, PW 7 who at the relevant time was running
\na  tea stall opposite Chutia Police Station,  Ranchi  stated
\nthat  sometime\ttowards the end of September  1983  Raj\t Pal
\nSharma had come to his tea shop for taking tea and continued
\nto  take tea twice or thrice a day for about 10-12 days\t but
\nhe had no money to make payment of tea for 5-6 days and when
\nhe  demanded  the  money he told him that he was  a  man  of
\nSuresh\tand  had come to Ranchi to look after the  house  of
\nSuresh\twhich was going to be sold.  He further stated\tthat
\nMurari\tLal PW1 confirmed that Raj Pal Sharma was a  man  of
\nSuresh\tand  that  Suresh will make  payment  of  his  dues.
\nWitness Tiwari PW 7 identified Suresh also.\n<\/p>\n
116<\/span><\/p>\n
63.In  addition\t to what has been  discussed  above  clearly
\nestablishing the conspiracy hatched by the appellant  Suresh
\nalong with his two associates, namely, Raj Pal Sharma and S.
\nGurbachan Singh for the murder of Urshia and in pursuance of
\nwhich Urshia was murdered, there is some other evidence also
\nwhich connects the appellants with the crime in question.\n<\/p>\n
64.Rohtas  Sarang PW 79 is the mother of Urshia who  deposed
\nthat she had received last letter from Urshia in America  in
\nthe  month  of September 1983 as a result of which  she\t was
\nvery  much  upset.  When she received  two  unusual  letters
\ndated  29-10-1983  and 3-11-1983 i.e. after  the  murder  of
\nUrshia\twhich are Ext. 23\/6 and Ext. 23\/7 from Suresh  Bahri
\nthat  Urshia was very much busy and henceforth he  would  be
\nwriting\t  them\t and  also  asked  them\t  that\t in   future
\ncorrespondence\tthey should use the address of S.  Gurbachan
\nSingh who is a good friend of Suresh at Ranchi her suspicion
\nincreased exceedingly.\tA perusal of the letters will go  to
\nshow that Suresh mentioned therein that Urshia had given  up
\nthe idea of divorce, Ranchi house has been sold away and  as
\nUrshia would be busy for quite a long time, the two children
\nwill  be shifted to Ranchi for their study  and,  therefore,
\nthey  should  not worry about them.  A reading\tof  the\t two
\nletters\t reproduced  by\t the  High  Court  in  its  judgment
\nevidently goes to show that Suresh was conscious of the fact
\nthat  Urshia  was  in regular contact with  her\t parents  in
\nAmerica\t and  as  the contact had come to an  end  with\t her
\nmurder,\t something had to be done to explain her silence  by
\nmisguiding her parents that there existed no dispute between
\nthem.\tUrshia having given up the idea of divorce and\tthey
\nwere  living in harmony and a happy life and as\t the  Ranchi
\nhouse has been sold away they should not worry about them at
\nall.\n<\/p>\n
65.This brings us to the evidence relating to the disclosure
\nstatement said to have been made by Raj Pal Sharma about the
\nskull of Urshia and the recovery thereof.  After his  arrest
\non  12-8-1984 appellant Raj Pal Sharma made  the  disclosure
\nstatement Ext. 32 which was drawn up by CBI Inspector  Madan
\nLal PW 85 assisted by Inspector Rajendra Singh PW 82 in\t the
\npresence  of two witnesses, namely, Satya Dev Tiwari  PW  73
\nand  Dev  Nandan  PW 74.  Satya Dev Tiwari  and\t Dev  Nandan
\nstated\tthat in pursuance of disclosure statement  a  skull,
\nhair and some other articles were seized as per seizure memo
\nExt.  33 at the instance of appellant Raj Pal Sharma from  a
\nforest on Ranchi-Patratru Road.\t Similar is the statement of
\nCBI  Inspector, Madan Lal, PW 85, and Rajendra Singh PW\t 82.
\nThere  is  nothing on record to disbelieve  or\tdoubt  their
\ntestimony  with\t regard\t to  disclosure\t statement  and\t the
\nrecovery of a skull, hair and other articles at the instance
\nof the appellant Raj Pal Sharma.\n<\/p>\n
66.The skull and other articles seized as per seizure  memo,
\nExt. 33 referred to above were sent to the Director, Medico-
\nLegal\tInstitute,  Gandhi  Medical  College,\tBhopal\t for
\nexamination  and report by its Director, Dr Harish  Chander.
\nDr  Harish Chander, the Director of the\t Institute-cum-Legal
\nAdvisor to the Government of M.P. sent big report Ext.\t2\/81
\nafter  examination with his opinion that the skull  belonged
\nto a female human being whose age was 33 years plus minus  5
\nyears.\t Dr  Harish in his report had also  asked  for\tsome
\nother  information  and\t photograph  and  clothings  of\t the
\ndeceased  in order to fix up the identity of the  person  to
\nwhom  the  skull belonged to but the prosecution  could\t not
\nfurnish\t the  required\tinformation.   Dr  Harish  submitted
\nanother report giving his opinion that in the absence of the
\nmaterial required by him it cannot be said with
\n117<\/span>
\ncertainty  that\t identity was established  though  there  is
\nresemblance with the skull of the deceased.  Dr Harish could
\nnot  be examined by the prosecution as a witness due to\t his
\nillness\t but an expert of his department Dr S.C. Jain PW  80
\nhad  appeared  and  stated that Prof.\tHarish\tChander\t was
\nsuffering from paralysis and, therefore, could not appear as
\na witness.  He further proved the aforesaid two reports sent
\nby  Prof.  Harish Chander.  He stated that he  had  examined
\nthe  skull and other materials after discussion\t with  Prof.
\nHarish Chander for which he prepared a note Ext. 30.\n<\/p>\n
67.On  the  basis of the two reports sent by  Prof.   Harish
\nChander and the statement made by Dr S.C. Jain, PW 80,\tShri
\nSushil Kumar learned counsel appearing for the appellant Raj
\nPal Sharma contended that the identity of the skull  alleged
\nto be of the deceased Urshia Baliri is doubtful and remained
\nunestablished and, therefore, the conviction for the  charge
\nof murder and\/or conspiracy to murder Urshia Bahri cannot be
\nsaid to be established by the prosecution particularly\twhen
\nthere  is  no positive proof of the hair said to  have\tbeen
\nrecovered  along with the skull belonging to a woman or\t the
\nhead  of  the deceased Urshia.\tIn  our\t considered  opinion
\nthere is no substance in these submissions as most often and
\nin  certain cases even the dead body of the deceased  person
\nis not recovered or seized but if there is positive evidence
\nto  connect the culprit, it cannot be said that the  offence
\nof murder is not established.  In the present case it is  no
\ndoubt  true  that Prof.\t Harish could not give\this  opinion
\nwith certainty with regard to the identity of the skull, but
\nin  view of the evidence on record which has been  discussed
\nby  us\tin  detail  it\tcould  not  be\taccepted  that\t the
\nprosecution has failed to establish that the skull which was
\nrecovered  at the instance of the appellant Raj\t Pal  Sharma
\ndid  not belong to the deceased Urshia.\t The very fact\tthat
\nRaj  Pal  Sharma made the disclosure  statement\t that  after
\nsevering the neck from her body the skull was thrown in\t the
\njungle\twhich  was  seized  only  at  the  instance  of\t the
\nappellant  Raj Pal Sharma who searched out the skull in\t the
\nforest\tand produced it before the investigating  agency  in
\nthe presence of independent witness coupled with the  report
\nof  Prof.  Harish Chander that it was the skull of a  female
\nwhose  age was about 33 years plus minus 5 years  on  either
\nside  which  in fact was the age of deceased  Urshia,  there
\nisno  difficulty in recording the conclusion that the  skull
\nbelonged to none else but Urshia.\n<\/p>\n
68.There is yet another piece of circumstantial evidence  to
\nconnect\t the  accused  appellants with\tthe  conspiracy\t and
\nmurder\tof  Urshia  in\tthe shape  of  recovery\t of  certain
\narticles  which\t were used in wrapping the dead\t body  while
\nthrowing  the  same  in the sceptic  tank,  and\t which\twere
\nrecovered  from a khad gaddha at Ranchi where the  waste  of
\nRanchi\twas dumped.  Rajeshwar Singh PW 59 was\tthe  Station
\nHouse  Officer, Police Station Chutia at the relevant  time,
\nstated\tthat on the report of Bineet Singh PW 69  P.S.\tCase
\nNo. 27\/84 with regard to murder of Urshia was registered  in
\nLower  Bazaar Police Station as at that time  Chutia  Police
\nStation\t was under Lower Bazaar Police Station and the\tcase
\nwas  handed over to CBI by notifications of the Central\t and
\nState  Governments.  Rajeshwar Singh PW 59 investigated\t the
\ncase.  During the course of investigation as stated  earlier
\nPW  59\thad  arrested the  appellant  Gurbachan\t Singh.\t  He
\ndeposed\t  that\tduring\tthe  course  of\t investigation\t the
\nappellant Gurbachan Singh took him near Khad gaddha  hillock
\nwhere the waste of Ranchi
\n118<\/span>
\ncity  is  dumped.   He\tdeposed\t that  at  the\tinstance  of
\nGurbachan  Singh he got the place unearthed by labourers  to
\ndiscover  the dead body of Urshia which could not  be  found
\nbut a piece of blanket, piece of saree and a rope were found
\nwhich  were  seized at the instance of\tGurbachan  Singh  by
\nseizure memo Ext. 5 dated 2-2-1984 which was prepared by ASI
\nRangnath Singh on his direction.  These articles were put to
\ntest  identification.\tShri  Atulya Kumar  Bara  PW  83  an
\nExecutive  Magistrate on the orders of CJM, Ranchi, held  TI
\nparade of the articles in the verandah of the Chutia  Police
\nStation.  An old piece of light green blanket, three  pieces
\nof sky blue-black checked saree and rope were identified  by
\nMurari\t Lal  PW1  and\tBadri  Nath  Mishra  PW\t 2  as\t per
\nidentification memo Ext. 36 prepared by Atulya Kumar Bara PW\n<\/p>\n
83.\n<\/p>\n
69.He deposed that no person was present at the place  where
\nidentification\tof these articles was held.  Murari Lal\t PW1
\nwas  one of the witnesses who identified the blanket  piece,
\nsaree pieces and the rope in TI parade and had signed the TI
\nmemo.\tHe deposed in para 17 that Urshia Bahri was  wearing
\nthat  saree  when  she came to his shop in  the\t evening  of
\n11-10-1983  and he had seen in the sceptic tank the  blanket
\nand the rope with which the dead body was wrapped and  tied.
\nSimilar\t is the statement of Badri Narayan Mishra PW  2\t who
\nstated\tin para 9 of his deposition that he  had  identified
\nthe aforementioned articles in the TI parade held in  Chutia
\nPolice Station and had signed the memo.\t He stated that when
\nhe met Urshia Bahri at her house in the morning of 11-101983
\nshe  was  wearing  the\tsaree  of  which  the  pieces\twere
\nidentified  by\thim  in the TI parade and he  had  seen\t the
\nblanket kept on the takht in the house of Suresh Bahri\twhen
\nhe  visited the house.\tHe also stated that rope was a\tpart
\nof the rope of the cot which was kept in the verandah of the
\nhouse  of  Suresh  Bahri.   This  part\tof  the\t prosecution
\nevidence  also\tcould  not  be\tdemolished  by\tthe  defence
\nalthough the witnesses were cross-examined thoroughly and by
\nseveral counsel appearing for the accused persons.  There is
\nnothing on record to discredit their testimony.\n<\/p>\n
70.However,  learned  counsel appearing for  the  appellants
\nrelying\t on  the  decision  in the case\t of  Nari  Santa  v.
\nEmperor9  and Abdul Sattar v. Union Territory,\tChandigarh1O
\nvehemently urged that the alleged recovery of blanket, piece
\nof   saree  and\t rope  said  to\t have  been  made   by\t the
\ninvestigating  agency  at  the\tinstance  of  the  appellant
\nGurbachan  Singh in the absence of any disclosure  statement
\nand  without any pointing out memo of the place of  recovery
\nand without the public witness to the alleged recovery could
\nnot  be treated as valid recovery in the eye of\t law  within
\nthe  meaning of Section 27 of the Evidence Act.\t It is\ttrue
\nthat no disclosure statement of Gurbachan Singh who is\tsaid
\nto have given information about the dumping of the dead body
\nunder the hillock of Khad gaddha dumping ground was recorded
\nbut  there is positive statement of Rajeshwar Singh, PW\t 59,
\nStation\t House Officer of Chutia Police Station who  deposed
\nthat during the course of investigation Gurbachan Singh\t led
\nhim to Khad gaddha hillock along with an Inspector  Rangnath
\nSingh  and on pointing out the place by Gurbachan  Singh  he
\ngot  that  place  unearthed by labourers where\ta  piece  of
\nblanket, pieces of saree and rassi were found which were
\n9 AIR 1945 Pat 161 : 46 Cri LJ 613 : 219 IC 391
\n10 1985 Supp SCC 599: 1985 SCC (Cri) 505 : AIR 1986 SC 1438
\n119<\/span>
\nseized\tas per seizure memo Ext. 5. He further deposed\tthat
\nhe had taken two witnesses along with him to the place where
\nthese articles were found.  Rajeshwar Singh PW 59 was cross-
\nexamined  with\tregard to the identity of the  witness\tNand
\nKishore\t who is said to be present at the time\tof  recovery
\nand  seizure of the articles as well as with regard  to\t the
\nidentity  of the articles seized vide paragraphs 18, 21\t and
\n22  of\this  deposition but it may be pointed  out  that  no
\ncross-examination was directed with regard to the disclosure
\nstatement  made by the appellant Gurbachan Singh or  on\t the
\npoint that he led the police party and others to the hillock
\nwhere on his pointing out, the place was unearthed where the
\naforesaid  articles were found and seized.  It is true\tthat
\nno  public witness was examined by the prosecution  in\tthis
\nbehalf\tbut the evidence of Rajeshwar Singh PW 59  does\t not
\nsuffer\tfrom  any  doubt or infirmity  with  regard  to\t the
\nseizure\t of these articles at the instance of the  appellant
\nGurbachan  Singh  which on TI parade were found\t to  be\t the
\narticles   used\t in  wrapping  the  dead  body\tof   Urshia.
\nAccording  to the evidence of PW1 and PW 2 as  said  earlier
\nthe  saree pieces were part of the saree of Urshia that\t she
\nwas seen wearing by these witnesses, the blanket piece was a
\npart of the blanket which was seen on the takht in the house
\nof the appellant Suresh Bahri and the piece of rope was\t the
\npart  of the rope said to be taken out from the cot kept  in
\nthe verandah of the house of Suresh.\n<\/p>\n
71.The\ttwo essential requirements for the application\tof
\nSection\t 27  of\t the Evidence Act are that  (1)\t the  person
\ngiving information must be an accused of any offence and (2)
\nhe  must also be in police custody.  In the present case  it
\ncannot\t be   disputed\t that\talthough   these   essential
\nrequirements existed on the date when Gurbachan Singh led PW
\n59  and others to the hillock where according to him he\t had
\nthrown the dead body of Urshia but instead of the dead\tbody
\nthe articles by which her body was wrapped were found.\t The
\nprovisions  of Section 27 of the Evidence Act are  based  on
\nthe   view  that  if  a\t fact  is  actually  discovered\t  in
\nconsequence of information given, some guarantee is afforded
\nthereby\t that the information was true and consequently\t the
\nsaid  information  can\tsafely be allowed  to  be  given  in
\nevidence because if such an information is further fortified
\nand confirmed by the discovery of articles or the instrument
\nof crime and which leads to the belief that the\t information
\nabout the confession made as to the articles of crime cannot
\nbe  false.   In\t the present case  as  discussed  above\t the
\nconfessional  statement\t of  the  disclosure  made  by\t the
\nappellant  Gurbachan Singh is confirmed by the\trecovery  of
\nthe  incriminating  articles as said above  and,  therefore,
\nthere is reason to believe that the disclosure statement was
\ntrue  and the evidence led in that behalf is also worthy  of
\ncredence.\n<\/p>\n
72.In  the light of the facts stated above we  are  afraid
\nthe  two  decisions  mentioned above and relied\t on  by\t the
\nlearned\t counsel for the appellants have no  application  to
\nthe facts of the present case and do not advance the case of
\nthe appellants challenging the discovery and seizure of\t the
\nincriminating articles discussed above.\t In Nari Santa9\t the
\naccused\t of  that case was charged for the theft and  it  is
\nsaid  that  in\tthe  course  of\t investigation\tthe  accused
\nproduced certain articles and thereafter made a confessional
\nstatement and it was in these facts and circumstances it was
\nheld  that  there  was no disclosure  statement\t within\t the
\nmeaning of Section 27 as the confessional statement was made
\nonly  when the articles were already discovered having\tbeen
\nproduced by the accused.  Similarly the decision rendered in
\nAbdul Sattar10 also does not help the
\n120<\/span>
\nappellants  in\tthe  present case.  In\tthe  case  of  Abdul
\nSattar10  recovery  of wearing apparels of the\tdeceased  is
\nsaid  to  have been made at the instance of the\t accused  of
\nthat case more than three weeks after the occurrence from  a
\npublic\tplace accessible to the people of the locality\tand,
\ntherefore,   no\t reliance  was\tplaced\ton  the\t  disclosure
\nstatement  and\trecovery  of the  wearing  apparels  of\t the
\ndeceased.   But\t in the present case it was soon  after\t the
\narrest of appellant Gurbachan Singh that he took the  Police
\nOfficer while in custody to the place where according to him
\nhe  had\t thrown\t the  dead body of  Urshia  wrapped  by\t the
\nincriminating articles.\t Those articles were not found lying
\non  the\t surface  of the ground but they  were\tfound  after
\nunearthing the Khad gaddha dumping ground under the hillock.
\nThose  articles were neither visible nor accessible  to\t the
\npeople\tbut  were  hidden  under  the  ground.\t They\twere
\ndiscovered  only after the place was pointed out and it\t was
\nunearthed  by  the labourers.  No fault therefore  could  be
\nfound  with  regard  to the discovery  and  seizure  of\t the
\nincriminating articles.\n<\/p>\n
73.Now\twe come to the evidence of the experts\texamined  by
\nthe  prosecution,  and the expert opinion rendered  by\tthem
\ntouching  upon the crime in question.  K.K. Arora PW  51  at
\nthe  relevant  time was working as the Senior  Scientist  in
\nChemistry branch of the Central Forensic Science Laboratory,
\nDelhi  having  24 years’ experience.  He  had  examined\t the
\ngunny  bag which was used for carrying salt for dropping  in
\nthe sceptic tank after the dead body of Urshia was thrown in
\nthe said tank.\tK.K. Arora in his report Ext. 20 found\tsalt
\nin  the said bag.  Dr G.B. Gupta PW 53 Senior Scientist\t had
\nexamined  the wall scrapings of the blood from the  room  of
\nthe  Ranchi  house of Suresh and scrapings  from  the  steel
\ntrunk  seized from the room of the said house of Suresh\t and
\nfound  human  bloodstains in the same.\t Dr  R.P.  Bhatnagar
\nanother\t Senior\t Scientist, Head  of  Surgery  Division-cum-
\nAssistant  Chemical  Examiner  to the  Government  of  India
\n(CBI),\tNew  Delhi had examined the scrapping of  the  blood
\ntaken  from the Ranchi house of Suresh Bahri and he  as\t per
\nhis report Ext. 20\/40 found human blood of ‘B’ group in\t the
\nsame.\n<\/p>\n
74.The\tprosecution  had also examined about  20  employees,
\nManagers and Proprietors of different hotels which have been
\ncatalogued  by the High Court in para 69 of its judgment  in
\nwhich  the  appellant Suresh Bahri and Raj  Pal\t Sharma\t had
\nstayed on different dates by concealing their real names and
\ngiving\tout different names and addresses under the fear  of
\nbeing  apprehended as they had received intimation that\t the
\nrumours\t were circulating about the murder of  Urshia  Bahri
\nand had also learnt about the arrival of Bineet Sarang PW 69
\nbrother of Urshia in January 1984 at Delhi who was searching
\nand  making enquiries about his sister and her children\t and
\nhad  visited the Delhi house, business premises\t and  Ranchi
\nhouse of the appellant Suresh Bahri and made reports to\t the
\nChutia Police Station.\n<\/p>\n
75.Thus\t on  an\t overall independent  consideration  of\t the
\ncircumstantial\tand expert evidence as well as the  evidence
\nof the approver adduced by the prosecution and discussed  by
\nus  in\tthe  foregoing\tparas it  is  abundantly  clear\t and
\nsatisfactorily established that the evidence of the approver
\nRam   Sagar  Vishwakarma,  PW  3  has\treceived   requisite
\ncorroboration  on all material particulars and the  totality
\nof the surrounding circumstances, antecedents and subsequent
\nconduct amongst other factors established against the three
\n121<\/span>
\nappellants  prove  beyond all reasonable doubt that  at\t the
\ninstance  of  Suresh Bahri who masterminded  the  plan,\t the
\nother  two  appellants conjointly hatched  a  conspiracy  to
\ncommit the murder of Urshia Bahri and that in prosecution of
\nthe  common  intention Suresh Bahri and Raj Pal\t Sharma\t did
\ncommit\tthe murder of Urshia Bahri.  Not only this  but\t all
\nthe  three appellants with a view to screen themselves\tfrom
\nthe  commission of the offence made all-out efforts for\t the
\ndisappearance of the dead body of Urshia.\n<\/p>\n
76.The\tHigh  Court affirming the findings recorded  by\t the
\ntrial  court and on taking stock of the\t entire\t prosecution
\nevidence on record by itself came to the conclusion that the
\nfollowing  circumstances were fully established\t beyond\t all
\nreasonable  doubt against the three appellants and  on\tthat
\nbasis found them guilty for the aforesaid offences:\n<\/p>\n
\t      “(1)Deceased   Urshia  whose   parents   and
\n\t      brother were living abroad was married to\t the
\n\t      appellant Suresh in the year 1971.
\n\t      (2)   Appellant  Suresh was the only issue  of
\n\t      his  parents, having business and a  farmhouse
\n\t      in Village Dhulli, 40 kms from Ranchi.
\n\t      (3)   Out of the wedlock of Suresh and  Urshia
\n\t      two  children were born, a girl by name  Richa
\n\t      and a boy, Saurabh.\n<\/p><\/blockquote>\n
\t      (4)   A couple of years after the marriage the
\n\t      relations\t between  Suresh and  Urshia  became
\n\t      strained\ton account of constant\tinterference
\n\t      by Y.D. Arya, maternal uncle of Suresh in\t the
\n\t      domestic as well as business affairs.
\n\t      (5)   Deceased  Urshia was  extremely  unhappy
\n\t      with  her\t husband  Suresh  and  mother-in-law
\n\t      Santosh, the acquitted accused, on account  of
\n\t      their  maltreatment and  undesirable  attitude
\n\t      towards  her  and her children.  The  stay  of
\n\t      Y.D.  Arya in the house of the couple was\t not
\n\t      acceptable   to\tUrshia\t because   of\t his
\n\t      undesirable interference in their business and
\n\t      domestic\taffairs.  Deceased  Urshia  realised
\n\t      that  her status in the family was  just\tlike
\n\t      undesirable person.\n<\/p><\/blockquote>\n
\t      (7)   Urshia   became  highly  despaired\t and
\n\t      disappointed on account of incapability of her
\n\t      husband to manage the family business,  having
\n\t      fallen  in  bad company and become  addict  to
\n\t      excess  drinking\tand  had  disposed  of\t the
\n\t      Calcutta properties and she did not receive  a
\n\t      single
\n\t      penny out of it.\n<\/p><\/blockquote>\n
\t      (8)   Constant efforts of Urshia to  associate
\n\t      herself  with family business to\timprove\t its
\n\t      condition was frustrated by her  mother-in-law
\n\t      who  poisoned the mind of her  husband  Suresh
\n\t      against her.\n<\/p><\/blockquote>\n
\t      (9)   The removal of Y.D. Arya at the instance
\n\t      of Urshia from occupation of a portion of\t the
\n\t      house  had further annoyed  her  mother-in-law
\n\t      and
\n\t      husband Suresh.\n<\/p><\/blockquote>\n
\t      (10)Her mother-in-law had once tried to kill
\n\t      her  by  administering poison in the  garb  of
\n\t      medicine\tas deposed by her sister PW  66\t and
\n\t      her life was saved only by timely medical aid.
\n\t      (11) For all the aforesaid reasons Urshia\t had
\n\t      decided to shift to America to her parents for
\n\t      the better future of her children but she\t was
\n\t      helpless\tin doing so for want of\t citizenship
\n\t      and ready money.\n<\/p><\/blockquote>\n
\t      (12)In order to overcome this problem Urshia
\n\t      persuaded\t her  parents  through\tletters\t  to
\n\t      immediately arrange for her citizenship and to
\n\t      get
\n\t      122<\/span>
\n\t      over  the\t monetary problems  she\t decided  to
\n\t      dispose of Ranchi House No. 936.
\n\t      (13)With\t a  view  to  shift   to   America
\n\t      permanently she was even ready to take divorce
\n\t      from her husband Suresh as is evident from her
\n\t      letters addressed to parents.\n<\/p><\/blockquote>\n
\t      (14)The appellant Suresh was not happy  with
\n\t      the  decision  of Urshia to shift\t to  America
\n\t      with children specially with the sale proceeds
\n\t      of Ranchi house.\n<\/p><\/blockquote>\n
\t      (15)Being convinced that Urshia had  finally
\n\t      decided  to shift to America with children  by
\n\t      disposing\t of Ranchi house,  appellant  Suresh
\n\t      decided  to do away with her life at any\tcost
\n\t      and  to meet this end he hatched a  conspiracy
\n\t      with   the  appellants  Raj  Pal\tSharma\t and
\n\t      Gurbachan Singh.\n<\/p><\/blockquote>\n
\t      (16)It was for this reason that he had first
\n\t      tried  to\t take  the assistance  of  his\tmali
\n\t      Moolchand PW 24 to commit her murder and\twhen
\n\t      he  declined to do so he was turned  out\tfrom
\n\t      the outhouse.\n<\/p><\/blockquote>\n
\t      (17)Suresh   also\t tried\tto  persuade   the
\n\t      approver\tRam Sagar PW 3 through his  employer
\n\t      Gurbachan\t Singh\tfor  murder  of\t Urshia\t  in
\n\t      pursuance\t of which appellant Gurbachan  Singh
\n\t      gave him allurement in the presence of  Suresh
\n\t      that  not only the advance taken by him  would
\n\t      be set off but some amount will also be  given
\n\t      to him by Suresh.\n<\/p><\/blockquote>\n
\t      (18)Though  the approver Ram Sagar PW 3  did
\n\t      not   accept  the\t offer\tbut  extended\tfull
\n\t      cooperation  in  that regard to  his  employer
\n\t      Gurbachan and Suresh Bahri.\n<\/p><\/blockquote>\n
\t      (19)While Urshia was negotiating with  Laxmi
\n\t      Narayan PW 21 through Badri Narayan Mishra  PW
\n\t      2\t to  dispose of Ranchi House  No.  936,\t her
\n\t      husband\tSuresh\twas  busy  in\thatching   a
\n\t      conspiracy  with Raj Pal Sharma and  Gurbachan
\n\t      Singh  and approver Ram Sagar PW 3 to do\taway
\n\t      with her life and for that purpose he  started
\n\t      making preparations.\n<\/p><\/blockquote>\n
\t      (20)Having  found\t that the  negotiation\tto
\n\t      dispose of Ranchi house had been finalised  by
\n\t      Urshia, Suresh became desperate and sought for
\n\t      the help of Raj Pal Sharma and Gurbachan Singh
\n\t      for  committing the murder of his wife at\t the
\n\t      earliest.\n<\/p><\/blockquote>\n
\t      (21)The appellant Raj Pal Sharma, a resident
\n\t      of  Masjid  Moth,\t Delhi was  quite  close  to
\n\t      Suresh as both were seen together on different
\n\t      occasions\t and Suresh was also paying for\t the
\n\t      tea  and articles consumed by Raj\t Pal  Sharma
\n\t      (vide PW1 and PW 7).\n<\/p><\/blockquote>\n
\t      (22)On  1-10-1983 Suresh along  with  Urshia
\n\t      came to Ranchi and stayed in House No. 936 but
\n\t      before  their  arrival  Raj  Pal\tSharma\t had
\n\t      already arrived in the last week of  September
\n\t      1983 to take stock of overall situation.
\n\t      (23)Before leaving Delhi Urshia had informed
\n\t      her parents through a letter that she would be
\n\t      shifting\tto  America after disposing  of\t the
\n\t      house in October.\n<\/p><\/blockquote>\n
\t      (24)Appellant   Suresh  with  the\t help\tof
\n\t      Gurbachan\t Singh\tgot a  dagger  sharpened  by
\n\t      Rameshwar Thakur PW 4 an employee of Gurbachan
\n\t      and also got a danda prepared by Ram Sagar  PW
\n\t      3\t another  employee of Gurbachan a  few\tdays
\n\t      before 11- 10-1983.\n<\/p><\/blockquote>\n
\t      123<\/span><\/p>\n
\t      (25)As per settled programme Ram Sagar PW\t 3
\n\t      was  taken by Gurbachan Singh to the house  of
\n\t      Suresh  three  days before 11-10-1983  with  a
\n\t      danda,  but  on  account of  arrival  of\tsome
\n\t      outsiders that plan could not be executed.
\n\t      (26)A  similar  plan was again made  on  the
\n\t      next  day but as police was patrolling in\t the
\n\t      area on the eve of festival, PW 3 declined  to
\n\t      do  the  work  under  apprehension  of   being
\n\t      detected.\n<\/p><\/blockquote>\n
\t      (27)After\t the deal with regard to  sale\tof
\n\t      Ranchi  house was complete with Laxmi  Narayan
\n\t      PW 21 for a consideration of rupees five and a
\n\t      half lakhs, Laxmi Narayan inspected the  house
\n\t      in the presence of Suresh and Urshia on 11-10-
\n\t      1983 when Urshia told him to bring the  income
\n\t      tax  clearance  certificate so  that  document
\n\t      could  be\t executed and thereafter  she  would
\n\t      return to Delhi on 12-10-1983.\n<\/p><\/blockquote>\n
\t      (28)The\tappellant  Suresh  purchased   two
\n\t      railway  tickets\tin the waiting list  in\t his
\n\t      name  and his wife Urshia for Delhi to give  a
\n\t      colour that the couple would be leaving on 12-
\n\t      10-1983 but in fact none of them travelled  on
\n\t      12-10-1983  as per the reservation  chart\t and
\n\t      evidence\t of  the  then\t Chief\t Reservation
\n\t      Supervisor of Ranchi Railway Station.
\n\t      (29)On  10-11-1983  electric  light  of  the
\n\t      house  of\t Suresh\t was  deliberately  put\t off
\n\t      though there was light in the vicinity so that
\n\t      in  the  darkness murder of  Urshia  could  be
\n\t      committed\t by Suresh and Raj Pal in a room  of
\n\t      the house.\n<\/p><\/blockquote>\n
\t      (30)As per plan appellant Gurbachan and PW 3
\n\t      also  arrived  at\t the house  soon  after\t the
\n\t      ghastly  crime and as PW 3 became\t nervous  on
\n\t      witnessing  the  ghastly crime,  his  employer
\n\t      Gurbachan Singh patted him and offered water.
\n\t      (31)Murari Lal PW1 also happened to come\tto
\n\t      the house soon after the murder with the\tbill
\n\t      of  the  articles purchased from his  shop  on
\n\t      credit  as  required by Urshia  and  found  no
\n\t      electric\tlight  in the house but\t a  kerosene
\n\t      lamp  was lighted, appellant  Gurbachan  Singh
\n\t      and PW 3were sitting on a sofa, the  appellant
\n\t      Suresh  was  in the drawing room and  Raj\t Pal
\n\t      wearing an underwear was seen moving from\t one
\n\t      room  to another with the dagger stained\twith
\n\t      blood.  The appellant Suresh asked Murari\t Lal
\n\t      PW1  to  supply  four empty  glasses  as\tthey
\n\t      wanted  to enjoy liquor.\tMurari\tLal  brought
\n\t      the glasses and then went away.\n<\/p><\/blockquote>\n
\t      (32)A  middleman Badri Narayan Mishra  PW\t 2
\n\t      also happened to arrive at about the same time
\n\t      to meet Urshia but he was driven out from\t the
\n\t      verandah\tof the house by Suresh\tsaying\tthat
\n\t      Urshia had gone to a party to the house of the
\n\t      appellant\t Gurbachan Singh and from there\t she
\n\t      would  be\t leaving for Delhi by  next  morning
\n\t      flight,  which was later found to be false  by
\n\t      verification from the airlines office, vide PW\n<\/p><\/blockquote>\n
\t      9.
\n\t      (33)After PW1 and PW 2 were virtually driven
\n\t      out as aforesaid all the three appellants with
\n\t      the help of Ram Sagar Vishwakarma PW 3 wrapped
\n\t      the  body\t with  a  saree\t which\tUrshia\t was
\n\t      wearing,\ta blanket and then tied with a\trope
\n\t      and  wrapped the severed skull  separately  in
\n\t      Polythene bag.\n<\/p><\/blockquote>\n
\t      124<\/span><\/p>\n
\t      (34)The  next morning skull was taken  to\t a
\n\t      jungle  down the hill on Ranchi Patratru\tRoad
\n\t      by  Raj  Pal and Suresh on a  motor-cycle\t and
\n\t      thrown  there.  This fact was communicated  to
\n\t      Gurbachan Singh also.\n<\/p><\/blockquote>\n
\t      (35)The trunk portion of the body of  Urshia
\n\t      with the help of appellant Gurbachan, Raj\t Pal
\n\t      Sharma and Ram Sagar, PW 3, was concealed in a
\n\t      sceptic tank within the compound of the  house
\n\t      of  Suresh on the following evening  with\t the
\n\t      help  of\ta bamboo ladder\t and  the  appellant
\n\t      Gurbachan and approver Ram Sagar PW 3  brought
\n\t      20  kgs  of salt on the direction of  Raj\t Pal
\n\t      Sharma and poured the same in sceptic tank for
\n\t\t\t    speedy decomposition of the body.
\n\t      (36)Suresh had earlier decided to place  her
\n\t      trunk  portion in the box and keep it in\tsome
\n\t      train   for  which  a  box  was  prepared\t  by
\n\t      Gurbachan Singh with the help of approver PW 3
\n\t      but  that\t plan  was given up  as\t there\twere
\n\t      chances of detection.\n<\/p><\/blockquote>\n
\t      (37)Appellant Suresh gave false  information
\n\t      to his in-laws even after Urshia was  murdered
\n\t      by sending two letters dated 29-10-1983 and 3-
\n\t      11-1983  Exts.  23\/6  and\t 23\/7  stating\tthat
\n\t      henceforth only he would be writing letters to
\n\t      them  as Urshia was busy like a bee at  Dhulli
\n\t      farm  and\t was  not in  a\t position  to  write
\n\t      letters.\n<\/p><\/blockquote>\n
\t      (38)In  letter  dated  3-11-1983\tExt.  23\/7
\n\t      purporting  to have been written\tfrom  Ranchi
\n\t      house  while in fact on that date\t Suresh\t was
\n\t      staying in a hotel named Blue Heaven at Ranchi
\n\t      in  the  name  of\t S.  Saxena  mentioning\t his
\n\t      arrival  on 2-11-1983 and departure  on  5-11-
\n\t      1983 giving his address as 409, Defence Colony
\n\t      though he had no house in Defence Colony (vide
\n\t      Exts. 2\/9 and 4\/12).\n<\/p><\/blockquote>\n
\t      (39)In the letters Suresh not only tried\tto
\n\t      impress  upon  his  in-laws  that\t they\twere
\n\t      leading a very happy life and at the same time
\n\t      also  made  attempts  to\texplain\t the  sudden
\n\t      silence of Urshia by a improbable story.\t The
\n\t      said  letters also indicated  the\t pre-planned
\n\t      idea of Suresh in committing the murder of his
\n\t      two issues subsequently by informing them that
\n\t      Urshia was staying at Ranchi for about one and
\n\t      a\t half years and the children were  to  shift
\n\t      there  for studies.  This unusual\t information
\n\t      given by Suresh created a serious suspicion in
\n\t      the  mind of his in-laws and, therefore,\tthey
\n\t      directed their son Bineet Singh PW 69 to go to
\n\t      India and find out the welfare and whereabouts
\n\t      of  Urshia and her children.  The\t conduct  of
\n\t      Suresh  and  Gurbachan after  the\t arrival  of
\n\t      informant\t Bineet\t Singh PW 69 from  Libya  to
\n\t      make an enquiry about his sister and  children
\n\t      was  not only misleading but their  activities
\n\t      at every stage were conflicting and suspicious
\n\t      which  directly  suggested  that\tSuresh\t was
\n\t      deliberately  avoiding to divulge\t the  truth.<\/p><\/blockquote>\n
\t      The informant Bineet Singh PW 69 made  frantic
\n\t      enquiries\t about his sister at  Delhi,  Ranchi
\n\t      and  Dhulli  farm and from  different  sources
\n\t      came  to\tknow all the facts  leading  to\t the
\n\t\t\t    murder of his sister and, therefore, he  lodge
\nd
\n\t      the reports both at Ranchi and Delhi.\n<\/p>\n
\t      (40)When the investigation by Chutia  Police
\n\t      was found to be unsatisfactory, CBI took\tover
\n\t      the    charge   by   virtue   of\t  government
\n\t      notifications   and  during  the\t course\t  of
\n\t      investigation Raj Pal was arrested on 8-8-1984
\n\t      who made disclosure statement Ext. 32 as to
\n\t      125<\/span>
\n\t      how  Urshia was killed in one of the rooms  of
\n\t      the  Ranchi  House No. 936 and  her  head\t was
\n\t      severed and thrown in the jungle.\n<\/p>\n
\t      (41)Prior\t to  Raj Pal, Ram Sagar PW  3  was
\n\t      arrested\t and  made  confessional   statement
\n\t      leading to unearthing of the murders.\n<\/p>\n
\t      (42)On  the  disclosure  statement  made\tby
\n\t      appellant Raj Pal the head of Urshia, hair and
\n\t      jaw, etc. were seized at his instance from the
\n\t      forest as per seizure Ext. 33.\n<\/p>\n
\t      (43)The\texpert\t Dr  Harish   Chander\ton
\n\t      examination found a skull of a female aged  33
\n\t      years plus minus 5 years on either side  which
\n\t      fitted with the age of Urshia as it appears in
\n\t      her passport Ext. 25.\n<\/p>\n
\t      (44)From\t the   evidence\t on   record   the
\n\t      friendship  between  Suresh and  Gurbachan  is
\n\t      fully  established.   Suresh  was\t a   regular
\n\t      visitor of the shop of Gurbachan Singh and  he
\n\t      took  the help of his employees  in  preparing
\n\t      dandas, dagger for killing Urshia.\n<\/p>\n
\t      (45)The  active participation  of\t Gurbachan
\n\t      Singh  in\t executing  the plan  of  murder  by
\n\t      extending all sorts of help at each and  every
\n\t      stage  prove that he was an active partner  in
\n\t      the criminal conspiracy.\n<\/p>\n
\t      (46)The  removal\tof trunk portion  of  dead
\n\t      body of Urshia by Gurbachan to a hillock known
\n\t      as Khad gaddha and filling up the sceptic tank
\n\t      with morum, for disappearance of the  evidence
\n\t      of   murder  is  an  added   circumstance\t  to
\n\t      establish that he had all through taken active
\n\t      part.\n<\/p>\n
\t      (47)The conspiratory acts of the\tappellants
\n\t      are  established\tby the fact that  after\t the
\n\t      murder  of  Urshia they were in  contact\twith
\n\t      each  other for communicating developments  of
\n\t      offences\tcommitted and action of\t the  public
\n\t      and  police in that sequence.   Gurbachan\t had
\n\t      sent the approver PW 3 to Delhi to meet Suresh
\n\t      and  inform him that suspicion had  arisen  in
\n\t      the  vicinity and Chutia police was  searching
\n\t      Suresh  who was moving from hotel to hotel  in
\n\t      different names.\n<\/p>\n
\t      (48)Raj Pal Sharma was equally very close to
\n\t      Suresh from before otherwise he would not have
\n\t      taken  the  leading  part\t in  the  murder  of
\n\t      Urshia.  Raj Pal also went underground forcing
\n\t      Chutia  police  to move the  CJM,\t Ranchi,  on
\n\t      23-8-1984 for issuance of warrant against\t him
\n\t      leading to his arrest on 28-8-1984 by CBI in a
\n\t      border village of Delhi and Haryana.”\n<\/p>\n
77.  After going through the evidence and material on record
\nwe  are\t also satisfied that the  aforementioned  facts\t and
\ncircumstances found to be established by the trial court  as
\nwell  as  by  the  High Court are  well\t founded  and  fully
\nsupportable by evidence on record.  Since we find  ourselves
\nin agreement with the said conclusions the same do not\tcall
\nfor  any  interference\tby this Court  in  exercise  of\t our
\njurisdiction under Article 136 of the Constitution.\n<\/p>\n
78.  Learned counsel for the appellants, however,  contended
\nthat in a case where a witness identifies an accused who  is
\nnot  known  to\thim in the court for  the  first  time,\t his
\nstatement  is  not of any evidentiary  value  without  there
\nbeing a previous identification parade and as in the present
\ncase the appellant Raj Pal Sharma was quite stranger to\t the
\nwitnesses who for the first time identified him in the\tdock
\nwithout\t there\tbeing any  previous  identification  parade,
\ntheir evidence should not have been accepted with regard  to
\nthe factum that he was the person who came and stayed in the
\nhouse of Suresh Babri and took part in
\n126<\/span>
\nthe  alleged murder of Urshia and her two  children.   While
\nadvancing  these  arguments support was sought to  be  taken
\nfrom  the  decisions  in Kanan v. State\t of  Kerala<\/a>  11\t and
\nMohanlal  Gangaram Gehani v. State of Maharashtra 12.  There
\ncan  be no dispute with regard to the principles as  to\t the
\nevidence  relating to identification of a  stranger  accused
\ninvolved in any crime.\tIt is well settled that\t substantive
\nevidence  of  the witness is his evidence in the  court\t but
\nwhen  the  accused  person is not previously  known  to\t the
\nwitness concerned then identification of the accused by\t the
\nwitness soon after his arrest is of great importance because
\nit   furnishes\tan  assurance  that  the  investigation\t  is
\nproceeding   on\t right\tlines  in  addition  to\t  furnishing
\ncorroboration  of  the evidence to be given by\tthe  witness
\nlater in court at the trial.  From this point of view it  is
\na  matter  of great importance both  for  the  investigating
\nagency\tand  for the accused and a fortiori for\t the  proper
\nadministration\tof justice that such identification is\theld
\nwithout avoidable and unreasonable delay after the arrest of
\nthe  accused  and  that all the\t necessary  precautions\t and
\nsafeguards were effectively taken so that the  investigation
\nproceeds  on correct lines for punishing the  real  culprit.
\nIt would, in addition, be fair to the witness concerned also
\nwho was a stranger to the accused because in that event\t the
\nchances\t of  his memory fading away are reduced\t and  he  is
\nrequired  to  identify the alleged culprit at  the  earliest
\npossible  opportunity  after  the  occurrence.\t It  is\t  in
\nadopting this course alone that justice and fair play can be
\nassured\t both to the accused as well as to the\tprosecution.
\nBut  the  position may be different when the  accused  or  a
\nculprit\t who  stands trial had been seen not  once  but\t for
\nquite  a  number  of times at different point  of  time\t and
\nplaces\twhich  fact  may do away with the  necessity  of  TI
\nparade.\t In the present case as stated earlier the appellant
\nRaj  Pal Sharma approached Murari Lal PW1 with a  letter  of
\nSuresh\tin  pursuance of which Murri Lal  had  directed\t the
\nbungalow  gardener  Moolchand PW 24 to open  the  house\t and
\npermit\tRaj Pal Sharma to stay there.  Raj Pal\tSharma\tcame
\nand stayed in the Ranchi house in the last week of September
\nand continued to live there till 1-10-1983 when Suresh along
\nwith  Urshia arrived and stayed there.\tThus Murari Lal\t PW1
\nand  Moolchand Mali PW 24 had an opportunity to see Raj\t Pal
\nfor several days and it was not for the first time that they
\nsaw him in the court when they identified him to be the\t one
\nwho  took active part in the crime.  Similarly Shambhu\tNath
\nTiwari PW 7 who was running a tea stall at Chutia where\t Raj
\nPal used to take tea and other eatable articles for a number
\nof days and had no money to pay the charges but continued to
\nserve him with tea, etc., on the assurance of Murari Lal  PW
\n1 that the dues would be cleared by Suresh Bahri as Raj\t Pal
\nwas  a\tman  of Suresh.\t Moolchand Mali PW 24  also  had  an
\nopportunity  to see Raj Pal living in Chutia  house,  Ranchi
\nfor several days.  Similar is the case with other  witnesses
\nwho  had identified Raj Pal to be the person who had  stayed
\nin the house of Suresh Bahri.  Thus in view of this evidence
\nit cannot be said that the witnesses who identified Raj\t Pal
\nin  the\t court had seen him only once for a short  while  by
\nreason\tof which their evidence should not be accepted.\t  In
\nthe  case of Kanan 11 relied on by the learned\tcounsel\t for
\nthe  appellants\t the accused of that case was  seen  by\t the
\nidentifying  witness only once in the court and,  therefore,
\nin the absence of TI
\n11 (1979) 3 SCC 319: 1979 SCC (Cri) 621
\n12 (1982) 1 SCC 700: 1982 SCC (Cri) 334
\n127<\/span>
\nparade\tthe evidence was not accepted which is not the\tcase
\nbefore\tus.  Similar was the position in  Mohanlal  Gangaram
\nGehani12 wherein the witness who identified the accused\t for
\nthe  first  time  in  court did\t not  know  him\t before\t and
\ntherefore  in the absence of TI parade the evidence of\tthat
\nwitness\t was held valueless and unreliable.  In the  present
\ncase and in the facts and circumstances discussed above,  TI
\nparade\twas not necessary at all as the witnesses  had\tseen
\nthe  appellant Raj Pat Sharma continuously for several\tdays
\nand they had the opportunity of knowing and recognising\t him
\nsince before they made their statement in the court.\n<\/p>\n
79.  This  brings  us to the second leg of  the\t prosecution
\ncase  relating to the murder of two children, namely,  Richa
\nand   Saurabh  who  are\t alleged  to  be  murdered  on\t the
\nintervening  night  of 17-12-1983 and 18-12-1983  at  Dhulli
\nfarmhouse  of Suresh Bahri in conspiracy with the other\t two
\nappellants,  namely, Raj Pal Sharma and S. Gurbachan  Singh.
\nThis  episode of their plan commenced with two\tapplications
\nExt. 40 and Ext. 40\/1 made by the appellant Suresh on  5-12-
\n1983   to  the\tPrincipal,  Father  Agnel’s  School,   South
\nExtension,  New Delhi, stating that his children  Richa\t and
\nSaurabh\t will  not be attending the classes  from  5-12-1983
\ntill  the end of February 1984.\t To establish this fact\t the
\nprosecution  had examined the Principal of the\tsaid  school
\nShri  M.  Cawlih PW 33. He deposed that he  knew  Richa\t and
\nSaurabh\t well who were the students of his school.   Saurabh
\nwas  in\t 4th  standard and Richa was in\t 6th  standard.\t  He
\nfurther\t deposed  that the aforesaid two  applications\twere
\nmade  by  Suresh Chandra Bahri, father of the  two  children
\nnamed above.  The application about Richa Bahri was received
\nby  her class teacher named Sonia and the other\t application
\nrelating  to Saurabh Bahri was received by Mrs Randhawa\t and
\nhe recognized the endorsement and signatures made by the two
\nclass  teachers\t on  the aforesaid  two\t applications.\t The
\nPrincipal  of  the  school further  deposed  that  both\t the
\napplications were seized by CBI officials.  A copy book Ext.
\n1\/2  of\t Richa\tBahri  was also seized by  the\tCBI  in\t his
\npresence  and he had signed at pages 1, 2, 23 and 36 of\t the
\nsaid copy book.\t He also identified Richa in the  photograph
\nExt.1  and  Saurabh  in the photograph Ext.  1\/3.   He\talso
\nidentified the father and mother of the two children Saurabh
\nand  Richa in the photograph Ext. 1\/2.\tMrs George PW  34  a
\nteacher of Father Agnel School was also examined who was the
\nclass teacher of Richa when she was in 4th and 5th  standard
\nand  claimed  to be fully acquainted with  her\thandwriting.
\nShe  identified\t the handwriting of Richa in her  copy\tbook
\nfrom  pages 2 to 26 seized by CBI from the Principal of\t the
\nschool\tas she had seen the writings when the copy book\t was
\nsubmitted to her for correction and she had signed the\tsaid
\ncopy book at pages 5, 16, 20 and 23.  PW 34 also  identified
\nSaurabh\t  in  the  photograph  Ext.1  and  1\/3.\t  She\talso
\nidentified  Richa in the photograph Ext. 1\/1.  The  evidence
\nof  these  two\twitnesses was  halfheartedly  sought  to  be
\nchallenged by the counsel for the appellants as\t unreliable,
\na  mention of which is made only to be rejected as  both  of
\nthem are independent witnesses having no animus against\t any
\nof  the accused\/appellants.  Their evidence does not  suffer
\nfrom  any  infirmities and we find their  version  as  fully
\ntruthful.\n<\/p>\n
80.  The prosecution in order to establish further chain  of
\ncircumstances  in the murder of two children  examined\tDina
\nNath Sharma, PW 6 who knew Suresh Bahri since 1965 and\tboth
\nwere classmates.  He deposed that he
\n128<\/span>
\nfrequently visited the Delhi house of Suresh Bahri and\talso
\nused  to stay with him.\t He knew all the family\t members  of
\nSuresh\tBahri  including his wife and children.\t  Dina\tNath
\nstated\tthat  when he visited Delhi house of Suresh  in\t the
\nfirst  week  of\t December 1983 he saw the  two\tchildren  of
\nSuresh in Delhi house when Suresh had told him that he\twill
\ntake  his  children to Ranchi to get them  admitted  in\t any
\nschool there so that the children and their mother may\tlive
\ntogether.   PW 6 further deposed that Suresh Bahri left\t for
\nRanchi\thouse in the morning of 8-12-1983 in the  Ambassador
\ncar  along with his mother Santosh Bahri and  a\t maidservant
\nand one more person (identifying Raj Pal in the court to  be
\nthat   person).\t  Suresh  told\thim  that  his\tmother\t and
\nmaidservant  would  be going up to Basti (U.P.).  On  asking
\nabout  the  other man Suresh told him that he  was  a  motor
\nmechanic whom he had taken by way of precaution as he had to
\ncover a long journey.  He also stated that he had taken\t 3-4
\nbeddings besides other articles in the car.\n<\/p>\n
81.  Witness  Gopi Krishna PW 11 Manager of the Tourist\t Dak
\nBungalow,  Varanasi added further link to the incident.\t  He
\ndeposed that Suresh Bahri and Raj Pal Sharma along with\t the
\ntwo children had stayed at his bungalow on two days i.e. 13-
\n12-1983\t and  14-12-1983.  The Guest House Register  Ext.  8
\ncontained the entry about their stay on the aforesaid dates.
\nGopi  Krishna identified the appellants Suresh and  Raj\t Pal
\nSharma in the court and stated that Suresh had made the said
\nentry in the guest register.  It was shown in the said entry
\nthat  they were coming from Basti and were going  to  Ranchi
\nwhich fact lends support to the statement of Dina Nath PW  6
\nthat his mother and the maidservant would travel only up  to
\nBasti  and it was for this reason that only  the  appellants
\nSuresh, Raj Pal and the two children had stayed in the guest
\nhouse  on  13-12-1983 and 14-12-1983.  The entries  made  by
\nSuresh\tin his handwriting in the Guest House Register\twere
\ncompared  with\this  admitted writings\tby  the\t handwriting
\nexpert Shri S.C. Mittal PW 65 who found both the writings to
\nbe  in\tthe hand of Suresh.  After leaving Varanasi  in\t the
\nevening\t of 14-12-1983 the appellant Suresh, Raj  Pal  along
\nwith the two children proceeded further by car to Ranchi and
\nbefore\treaching Ranchi stayed in New Punjab Rest  House  at
\nDaltonganj,  as testified by its Proprietor S. Gurbax  Singh
\nPW  19 who deposed that in 1983-1984 the hotel was known  as
\nPunjab\tRest House but the name was subsequently changed  as
\nNew Punjab Rest House.\tThe witness stated that Suresh along
\nwith the two children and another person came and stayed  in
\nthe hotel on 15-12-1983 in Room No. 4 as per entry at Serial
\nNo.  576  of the Guest Register.  The entries in  the  Guest
\nRegister  were made by Richa Bahri which was also signed  by
\nSuresh.\t The number of passengers as given in the entry\t was
\nshown  as four coming from Delhi and going to  Ranchi.\t CBI
\nInspector Rajendra Singh, PW 82, seized the register of\t his
\nhotel.\tThe entries in the said register made in the writing
\nof Richa Bahri and her copy book were compared by the expert
\nS.C. Mittal PW 65 who opined that the writings and signature
\nof Richa in the Guest House Register fully tallied with\t her
\nwriting in the copy book of Father Agnel School as proved by
\nher class teacher, PW 34.\n<\/p>\n
82.  The  party\t of four i.e. Suresh, Raj Pal  and  the\t two
\nchildren  ultimately landed at Dhulli farm in the  afternoon
\non 16-12-1983 as testified by caretaker Gopi Mistry, PW\t 29,
\nof  Suresh on his Dhulli farmhouse and his son\tShiv  Nandan
\nLohare PW 60.  Both of them stated that their master  Suresh
\nalong with
\n129<\/span>
\nRaj Pal and the two children had arrived at Dhulli farmhouse
\nin  the\t afternoon of 16-12-1983 and stayed there  till\t the
\nmorning of 18-12-1983.\tBoth the witnesses also stated\tthat
\nabout  a fortnight before the arrival of Suresh\t and  party,
\nthe  appellant Gurbachan Singh had also come to Dhulli\tfarm
\nto make arrangement for some cots and chairs which were sent
\nby him from Ranchi in a bus.  Gopi Mistry also deposed\tthat
\nRaj  Pal  Sharma and two children stayed at  Dhulli  in\t the
\nnight  following 16-12-1983 and next day on  17-12-1983\t Raj
\nPal  went to Ranchi and came back with\tappellant  Gurbachan
\nSingh on a motorcycle but Gurbachan went away after about an
\nhour.\tIn  the night of 17-12-1983 all the four  took\tfood
\nprepared  by the wife of Gopi Mistry and then all  the\tfour
\nslept  in  one room at Dhulli farm.  Gopi  Mistry  proceeded
\nfurther\t to  state that on 11-12-1983 at about\tdawn  Suresh
\nhave a call to him and on hearing the call he, his wife\t and
\nhis  son Shiv Nandan woke up.  He came out and\tnoticed\t the
\ntwo  children  in the rear seat of the car in  the  sleeping
\nposition  fully covered with a quilt and only some parts  of
\ntheir  legs  alone were visible.  Suresh Bahri and  Raj\t Pal
\nwere  sitting in the front seat of the car and\tSuresh\ttold
\nhim  that they were going and if any one enquired about\t him
\nthey  be  told that he was not there and  then\tleft  Dhulli
\nfarm.\tShiv Nandan PW 60 the son of caretaker\tGopi  Mistry
\nalso  made  similar statement but further  added  that\twhen
\nSuresh and party was ready to leave at dawn on 18-12-1983 he
\ncame  and tried to look inside the car through\tthe  glasses
\nbut  the appellant Raj Pal shouted at him commanding him  to
\ngo away.\n<\/p>\n
83.  The evidence of these two witnesses PW 29 and PW 60 was
\nsought\tto  be\tassailed  by the  learned  counsel  for\t the
\nappellants  by\tpointing out some  minor  and  insignificant
\ncontradictions as also the statement of PW 60 that he  tried
\nto  look  inside  the car through the glasses  when  he\t was
\nshouted down and directed to be away by the appellant  which
\nstatement has not been made by his father PW 29.  We are not
\nimpressed  at  all  by these  arguments\t as  the  immaterial
\nomissions and contradictions have hardly any bearing on\t the
\nreliability  of\t these\ttwo  witnesses\twhose  evidence\t  is
\nconsistent on all material aspects and there is no reason at
\nall to discredit their testimony.\n<\/p>\n
84.  In the series of circumstances connecting the appellant
\nSuresh Bahri and Raj Pal with the murder of the two children
\nthe  prosecution has examined Vijay Kumar Asthana PW 12\t who
\nwas  the  Manager of Hotel India, Varanasi at  the  relevant
\ntime.\tAsthana deposed that Suresh had stayed in his  hotel
\non 18-121983 by making entry Ext. 4\/2 in his presence in the
\nGuest  Register Ext. 8\/1 at SI. No. 1448 at Page No.  25  in
\nhis  handwriting in the name of Mahesh Chandra\tGupta.\t The
\nsaid handwriting was compared with the specimen writing\t and
\nsignature  of  Suresh by the expert S.C. Mittal\t PW  65\t who
\nfound  the two writings having been made by the same  person
\nin  other words by Suresh.  The purpose of this evidence  is
\nto show that after leaving Dhulli farm at dawn on 18-12-1983
\nwhen on their return journey Suresh stayed in Hotel India at
\nVaranasi on 18-121983 there were only 2 persons i.e.  Suresh
\nhimself\t and  the  appellant  Raj Pal  Sharma  and  the\t two
\nchildren  were no longer in their company whose bodies\twere
\ndisposed  of somewhere on the way which would be clear\tfrom
\nthe evidence discussed hereinafter.\n<\/p>\n
85.Hiralal  PW\t36  is a  businessman  of  Samath,  District
\nBanaras\t who had gone to the bank of Varuna River on  20-12-
\n1983  at  about 8.00 a.m. to ease himself  when\t he  noticed
\ncrowd there.  He went and saw a gunny bag was
\n130<\/span>
\nfloating  in the water of Varuna River which was  taken\t out
\nand opened in the presence of persons present there.  In the
\nsaid bag dead body of a Hindu boy aged about 12\/13 years was
\nfound  having incised wounds in the neck.  In the  meanwhile
\none  Dr Mahendra Prasad PW 35 also arrived there who at\t his
\ninstance wrote a report which he took and lodged in  Sarnath
\nPolice Station in respect of the dead body.  On the basis of
\nhis  report  the  first\t information  report,  Ext.  13\t was
\nrecorded in the Police Station and Atma Nand Singh PW 46 In-
\ncharge,\t P.S.  Samath  went to the  bank  of  Varuna  River,
\nprepared  the panchnama of the dead body Ext. 14 and  seized
\nthe  gunny bag as per seizure memo Ext.\t 12.   Investigating
\nOfficer, PW 46 then called a photographer Ashok Kapoor PW 48
\nand  took  the photographs of the dead body of the  boy\t for
\npurpose of identification later.  Dr Bhargav PW 27 performed
\nan  autopsy over the dead body of the boy on 21-12-1983\t and
\nfound  two  incised  wounds on the  neck.   There  was\talso
\ncontusion  on  the chest and various other injuries  on\t his
\nperson\twhich  were ante-mortem in nature  caused  by  sharp
\nobject.\n<\/p>\n
86.  Here  it  may  be mentioned that  next  door  neighbour
\nMurari Lal PW 1, a family friend Dina Nath Sharma PW 6, Gopi
\nKrishna\t Asthana  PW 11, Manager of  Tourist  Dak  Bungalow,
\nVaranasi,  Gopi\t Mistry PW 29, the caretaker  of  Suresh  at
\nDhulli\tfarm,  Mrs George PW 34, a teacher of  Father  Agnel
\nSchool where the two children studied, Satvender Kant PW 41,
\na  close relative of Urshia Bahri and the  informant  Bineet
\nSingh PW 69 the brother of the deceased have all  identified
\nfrom  the  photographs that were taken by  the\tphotographer
\nAshok  Kapoor PW 48 to be the photographs of none  else\t but
\nSaurabh and thus there is overwhelming evidence to establish
\nthat  the dead body found floating in Varuna River was\tthat
\nof Saurabh.\n<\/p>\n
87.  However,  learned counsel for the appellants  referring
\nto  the\t statement of Dr Bhargav PW 27\tcontended  that\t the
\nprosecution  story that the two children were done to  death
\nin  the\t intervening night of 17-12-1983 and  18-12-1983  at
\nDhulli farm is not consistent with the medical evidence\t and
\non  the\t contrary it is falsified by  the  medical  evidence
\ninasmuch  as the dead body was found at about 8.00  a.m.  on
\n20-12-1983  but without any sign of decomposition  and\tonly
\nrigor  mortis  was present while putrefaction  starts  after
\nabout  24 hours of the death but the same was not  found  at
\nthe time of postmortem which was performed after 60 hours of
\nthe  alleged time of murder.  On that basis,  therefore,  it
\nwas  submitted that the dead body recovered was\t either\t not
\nthe dead body of Saurabh or the murder was not committed  in
\nthe intervening night of 17-12-1983 and 18-12-1983.  Learned
\ncounsel for the appellants further submitted that the doctor
\nhad  found that the stomach of the deceased was empty  while
\naccording  to the evidence of Gopi Mistry PW 29 and his\t son
\nShiv  Nandan Lohare PW 60 the two children had\tslept  after
\ntaking\ttheir  meals  in the  night  of\t 17-12-1983.   These
\narguments were advanced on the basis of some stray sentences
\nhere and there from the evidence of Dr Bhargav in isolation.
\nA reading of the full statement of Dr Bhargav PW 27 will  go
\nto  show  that\tthere  is absolutely  no  substance  in\t the
\naforementioned submissions.\n<\/p>\n
88.  So\t far as the identity of the dead body is  concerned,
\nwe  have already discussed above that there is\toverwhelming
\nevidence  to  show that it was the dead body of\t Saurabh  as
\nstated\tby  a  large number of witnesses  after\t seeing\t the
\nphotographs.   So  far as the question of  putrefaction\t and
\ndecomposition of the
\n131<\/span>
\ndead  body is concerned, it depends on various factors\tsuch
\nas  the season, place and the manner in which the dead\tbody
\nwas  kept besides other relative considerations.  A  perusal
\nof evidence of Dr Bhargav PW 27 would reveal that he clearly
\nstated\tthat putrefaction may take place even after 3  to  5
\ndays   if  the\tdead  body  remained  submerged\t in   water.
\nAdmittedly  the dead body of Saurabh was found\tfloating  in
\nVaruna\tRiver  in the morning of  20-12-1983.\tConsequently
\naccording  to  the evidence of Dr Bhargav  the\tprogress  of
\nputrefaction  or decomposition could not have  commenced  at
\nthe time when the dead body was recovered and postmortem was
\nconducted.   This circumstance, therefore, does\t not  render
\nthe prosecution story improbable or unreliable.\t The absence
\nof food at the time of postmortem of Saurabh is also not  of
\nmuch significance to render the prosecution story  doubtful.
\nThe presence or absence of food at the time of postmortem in
\nrelation  to the time of death is based on  various  factors
\nand  circumstances such as the type and nature of  the\tfood
\nconsumed, the time of taking the meal, the age of the person
\nconcerned and power and capacity of the person to digest the
\nfood.\tIn the present case there is no evidence  about\t the
\nexact time when the meals were taken by the children on\t the
\nnight of 17-12-1983 nor about the type or nature of the food
\nconsumed  by  them.  Saurabh was a young boy aged  about  12
\nyears  and he being a young and energetic boy, his power  of
\ndigestion must be assumed to be quick and strong, therefore,
\nif  the\t stomach at the time of postmortem was found  to  be
\nempty it was but natural.\n<\/p>\n
89.  The prosecution story with regard to the murder of\t the
\ntwo  children proceeds further by adding some more links  to
\nthe  circumstantial evidence against the appellants  in\t the
\nshape\tof  recovery  of  some\tincriminating  articles\t  on
\nPanchkoshi Road, near Nursery of Forest Department and\tsome
\nother places.  The Investigating Officer, Sarnath, Atma Nand
\nSingh  PW  46 stated that in the evening  of  27-12-1983  he
\nreceived  information from some persons that  some  articles
\nstained\t with  blood  were lying  at  Panchkoshi  Road\tnear
\nPaighambarpur  Village where the refuse is dumped.   PW\t 46,
\ntherefore,  rushed  there and in the presence  of  witnesses
\nseized\tbed sheet and a gadda which looked like a  quilt  by
\nseizure memo Ext. 5\/9.\tAt the same time he also learnt that
\nsome  articles were also lying near a Nursery of the  Forest
\nDepartment  at Asapur Road crossing.He,\t therefore,  visited
\nthat place also and seized two bloodstained bedsheets in the
\npresence of witnesses by seizure memo Ext. 5110.  All  these
\narticles  seized under seizure memo Exts. 5\/9 and 5\/10\twere
\nsent to the Central Forensic Science Laboratory, Delhi which
\nwere examined by Dr G.D. Gupta PW 53, a Senior Scientist who
\nfound  human  blood  on\t the quilt  and\t its  cover.   These
\narticles were further sent for examination by Serologist  Dr
\nP.K.  Bhatnagar PW 56 who as per his report Ext.  8\/4  found
\nthat the aforesaid articles contained blood group ‘B’.\n<\/p>\n
90.  It\t may  be noticed that when Atma Nand Singh,  PW\t 46,
\nPolice Officer Sarnath could not succeed in finding out\t the
\nidentity  of  the  dead\t body  of  the\tchild  he  got\t his
\nphotographs  published\tin  police gazette  as\twell  as  in
\nvarious\t newspapers but still nobody came forward  to  claim
\nthe body or to identify the child and, therefore, he made  a
\nfinal  report and closed the case but it appears  at  during
\nthe  investigation of the murder of Urshia and her  children
\nwhen the CBI Inspector Madan Lal PW 85 arrested Suresh Bahri
\non 31-7-1984 at Delhi
\n132<\/span>
\nwho appears to have made disclosure about his children\talso
\nand it was thereafter that the Government of India entrusted
\nthe  Sarnath case also to CBI by another notification  dated
\n14-9-1984  on  the  basis of which R.C. Case  No.  5\/84\t was
\nregistered by CBI and the CBI Inspector Rajendra Singh PW 82
\nwas entrusted with its investigation by him, a large  number
\nof  witnesses  were  examined  by  him\twho  identified\t the
\nphotographs as that of Saurabh.\n<\/p>\n
91.Though no trace of the dead body of Richa could be made
\nbut  in\t view of the  overwhelming  circumstantial  evidence
\nwhich  we  shall discuss hereinafter the same leads  to\t the
\nconclusion  that she also met the same fate as that  of\t her
\nbrother\t Saurabh at Dhulli farm in the intervening night  of
\n17-12-1983  and\t 18-12-1983 at the hands of  the  appellants
\nSuresh\tand Raj Pal Sharma.  It has already  been  discussed
\nthat  the two children were withdrawn from the Delhi  school
\non the pretext that they would be taken to Ranchi where they
\nwould  stay  with their mother and prosecute  their  further
\nstudies\t as is clear from the letters of Suresh\t written  to
\nhis in-laws, but the two appellants Suresh and Raj Pal\ttook
\nthem to Dhulli farm and after a short stay of one and a half
\nday  there both the appellants proceeded back to Delhi.\t  No
\nplausible  reason  is  discernible  as\tto  what  were\t the
\ncompelling reasons for the two appellants that after a\tlong
\njourney from Delhi to Dhulli farm, they thought of to return
\nback  to  Delhi only after a very short stay at\t Dhulli\t and
\nwithout\t even  visiting\t his  house at\tRanchi\tat  a  short
\ndistance of about 40 kms from Dhulli.  But the reason is not
\nfar  to seek, the purpose being to execute their plan to  do
\naway  with  the children in a lonely and secluded  place  so
\nthat  their dastardly and unholy act may not come  to  light
\nand  be\t not detected or suspected by anyone.\tAfter  their
\nwithdrawal from school on 5-12-1983 by the appellant  Suresh
\nhe  took  them to his South Extension residence,  Delhi\t and
\nthereafter  Suresh  left Delhi along with  the\tchildren  on
\n8-12-1983 and reached Dhulli farm in the afternoon of 16-12-
\n1983  via Basti, Varanasi and Daltonganj having their  halts
\nin  the hotels at two places as already\t discussed  earlier.
\nThe  entries  of the said hotels indicated that\t there\twere
\nfour  persons\tappellants Suresh and Raj Pal  and  the\t two
\nchildren.  The fact that the two children were\taccompanying
\nthese  two appellants is fully established from the  entries
\nin Daltonganj hotel which were made and signed by Richa\t and
\nSaurabh.   The\tsaid entries are proved by the\topinion\t and
\nevidence   of  the  expert.   The  return  journey  of\t the
\nappellants Suresh and Raj Pal which commenced on  18-12-1983
\ntells  a different story that though the two  children\twere
\nshown  to  be fast asleep in the rear seat of  the  car\t but
\nthereafter the two children were not found accompanying them
\neither\tdead or alive on their onward journey as is  evident
\nfrom the entries made in different hotels in different names
\nby these two appellants and entries indicated that only\t two
\npersons had stayed in those hotels on the return journey and
\nobviously  so because the two children were already done  to
\ndeath and their bodies while proceeding to Delhi were thrown
\nin  Varuna  River,  the body of Saurabh\t having\t been  found
\nfloating while that of Richa appears to have been swept away
\nunnoticed to some unknown destination.\tThe articles  gadda,
\nquilt  and sheets stained with human blood which  were\talso
\nthrown\ton the way and the Serologist on  examination  found
\nblood group ‘B’ on the same the evidence in respect of which
\nhas already been discussed in detail earlier.\n<\/p>\n
92.There  is  yet  another  circumstance  which\t  deserves
\nnotice.\t  The two children were shown to be fast  asleep  in
\nthe rear seat of the car with their whole
\n133<\/span>
\nbody  covered  except  for a part of  their  legs  which  is
\nsomething  against  the normal conduct of children  of\tthat
\nage.   The two appellants had resumed their  return  journey
\nafter a short stay at Dhulli at dawn on 18-12-1983 when\t the
\ntwo children of the age they were, are not expected to sleep
\nbut  would  be excited to enjoy the trip in the\t company  of
\ntheir father.  This leads to a legitimate conclusion that in
\nfact  they were not alive but were dead whose  throats\twere
\ncut  as noticed by Dr Bhatnagar who conducted postmortem  on
\nthe  dead  body of Saurabh.  It is also surprising  to\tnote
\nthat Suresh Bahri and Raj Pal Sharma left Dhulli farm  early
\nin the morning of 18-12-1983 without any arrangement for the
\nbreakfast  or  tea  even for the children  while  all  these
\nfacilities  were available at Dhulli farm but all  this\t was
\nnot necessary because the children were no more alive.\n<\/p>\n
93.It  may  also  be pointed out that after  the  murder  of
\nUrshia\tand  thereafter\t the killings of  the  two  children
\nSuresh Bahri was running about place to place and staying in
\ndifferent  hotels to avoid his apprehension.  From  9-5-1984
\nto  17-5-1984 Suresh was staying in a hotel at Ghaziabad  in
\nthe  name of Mahesh Chand Gupta though Delhi is not even  an
\nhour’s\trun  from Ghaziabad.  When his\tmother\twithdrew  an
\namount\tof  Rs\t25,000\tfrom  the  State  Bank,\t Delhi\t and
\nTravellers  cheque worth Rs 25,000 was taken in the name  of
\nhis  maternal  uncle,  Y.D.  Arya  which  was  encashed\t  at
\nGhaziabad  on  10-5-1984  and  this  circuitous\t method\t was
\nadopted\t to  mislead the prosecution and at  the  same\ttime
\nprovide\t money\tto Suresh who was wandering  from  place  to
\nplace  in different hotels and needed money to go  to  Nepal
\naccording  to his plan and create false evidence in  support
\nof his defence plea which he had pre-planned in case he\t was
\napprehended by police.\tHere it may also be pointed out that
\nthe  appellant Suresh went to Kathmandu (Nepal) and  firstly
\nhe stayed in Kozy Hotel from 8-4-1984 to 29-4-1984 vide Ext.
\n4\/34  and thereafter from 15-5-1984 to 22-5-1984 vide  Exts.
\n4\/35  and 4\/36.\t It is interesting to note  that  thereafter
\nSuresh\tleft the hotel Kozy of Kathmandu and lodged  himself
\nin  a  private house obtained on rent only with\t a  view  to
\ncreate\tfalse  evidence\t for  sudden  disappearance  of\t his
\nchildren  at Kathmandu according to his plan with  which  he
\nhad  gone to Nepal because Suresh thought that his  ultimate
\napprehension  would be unavoidable as the Chutia police\t had
\nsubmitted a charge-sheet with regard to the murder of Urshia
\nagainst\t him in which he was shown absconding  accused.\t  In
\nfurtherance  of his plan to create evidence for his  defence
\nthe appellant Suresh made a false report Ext. 25\/1 to  Nepal
\nPolice\ton  10-8-1984  that his two  children  who  came  to
\nKathmandu  (Nepal) with him were missing while in fact\tthey
\nwere  already done to death on the nights of 17-12-1983\t and
\n18-12-1983.  This report on enquiry was found to be  totally
\nunfounded  and false as would be clear from the evidence  of
\nBasant\tKumar Lama PW 67 a Police Officer of  Nepal.   There
\ncould  be no reason to doubt the testimony of  Basant  Kumar
\nLama  PW  67 as he is totally a stranger  to  the  appellant
\nSuresh\thaving\tno axe to grind against him with a  view  to
\nfalsely\t implicate him.\t Though Suresh tried to be wiser  by
\nmaking\tthe  information  with Kathmandu  Police  about\t the
\nmissing\t of  his children only after shifting in  a  private
\nhouse  as  giving such a false information  from  the  hotel
\nwhere the number of the guest\/passenger is noted, would have
\nexposed\t him because in fact the children had not gone\twith
\nhim to Kathmandu.  But he proved himself only to be a wisest
\nfool in doing so.\n<\/p>\n
134<\/span><\/p>\n
94.The\ttotality  of all  the  aforementioned  circumstances
\ncomplete  the  chain  which lead to  the  only\tirresistible
\nconclusion  that the three appellants before us had  hatched
\nthe conspiracy to commit the murder of the two children also
\nin  the\t same way as their mother Urshia was killed  and  in
\nprosecution  of their said plan they executed it  at  Dhulli
\nfarm.\n<\/p>\n
95.Learned  counsel appearing for the  appellants  Gurbachan
\nSingh  and Raj Pal Sharma contended that there is no  direct
\nand   legal  evidence  against\tthe  appellants\t for   their
\ninvolvement  in the alleged conspiracy and that in any\tcase
\nthere is no factual evidence against the appellant Gurbachan
\nSingh  about  his  actual participation in  the\t crime\tand,
\ntherefore,  the conviction under Sections 302\/120-B  of\t the
\nPenal Code in his case is bad in law and unsustainable.\n<\/p>\n
96.In  the above context we may refer to the  provisions  of
\nSection\t 120-A\tof  the\t Indian\t Penal\tCode  which  defines
\ncriminal  conspiracy.\tIt provides that when  two  or\tmore
\npersons agree to do, or cause to be done, (1) an illegal act
\nor  (2) an act which is not illegal by illegal\tmeans,\tsuch
\nagreement is designated a criminal conspiracy; provided that
\nno agreement except an agreement to commit an offence  shall
\namount\tto criminal conspiracy unless some act\tbesides\t the
\nagreement  is done by one or more parties to such  agreement
\nin   pursuance\tthereof.   Thus,  a  cursory  look  to\t the
\nprovisions  contained  in  Section  120-A  reveals  that   a
\ncriminal  conspiracy envisages an agreement between  two  or
\nmore  persons  to commit an illegal act or an act  which  by
\nitself\tmay not be illegal but the same is done or  executed
\nby  illegal  means.  Thus the essential\t ingredient  of\t the
\noffence of criminal conspiracy is the agreement to commit an
\noffence.    In\t a   case  where  the\tagreement   is\t for
\naccomplishment\tof  an act which by  itself  constitutes  an
\noffence, then in that event no overt act is necessary to  be
\nproved\tby the prosecution because in such a fact  situation
\ncriminal  conspiracy  is  established  by  proving  such  an
\nagreement.  In other words, where the conspiracy alleged  is
\nwith  regard to commission of a serious crime of the  nature
\nas  contemplated in Section 120-B read with the\t proviso  to
\nsub-section  (2) of Section 120-A of the IPC, then  in\tthat
\nevent  mere  proof of an agreement between the\taccused\t for
\ncommission of such a crime alone is enough to bring about  a
\nconviction  under Section 120-B and the proof of  any  overt
\nact  by\t the  accused or by any one of\tthem  would  not  be
\nnecessary.   The  provisions  in such  a  situation  do\t not
\nrequire\t that  each and every person who is a party  to\t the
\nconspiracy must do some overt act towards the fulfilment  of
\nthe object of conspiracy, the essential ingredient being  an
\nagreement  between the conspirators to commit the crime\t and
\nif  these requirements and ingredients are  established\t the
\nact  would  fall  within  the  trapping\t of  the  provisions
\ncontained  in  Section 120-B since from its  very  nature  a
\nconspiracy  must  be  conceived\t and  hatched  in   complete
\nsecrecy,   because  otherwise  the  whole  purpose  may\t  be
\nfrustrated  and\t it is common experience  and  goes  without
\nsaying\tthat  only in very rare cases one  may\tcome  across
\ndirect evidence of a criminal conspiracy to commit any crime
\nand  in\t most  of the cases it is  only\t the  circumstantial
\nevidence  which is available from which an inference  giving
\nrise  to the conclusion of an agreement between two or\tmore
\npersons to commit an offence may be legitimately drawn.\t The
\nobservations made by this Court in Noor Mohd.  Mohd
\n135<\/span>
\nYusuf  Momin  v. State of Maharashtra13 may be\tquoted\twith
\nadvantage which read as under: (AIR headnote)
\n\t      “Criminal\t  conspiracy  differs\tfrom   other
\n\t      offences\tin  that mere agreement is  made  an
\n\t      offence even if no step is taken to carry\t out
\n\t      that   agreement.\t  Though  there\t  is   close
\n\t      association of conspiracy with incitement\t and
\n\t      abetment\tthe substantive offence of  criminal
\n\t      conspiracy is somewhat wider in amplitude than
\n\t      abetment\tby  conspiracy\tas  contemplated  by
\n\t      Section  107 IPC.\t A conspiracy from its\tvery
\n\t      nature is generally hatched in secret.  It is,
\n\t      therefore, extremely rare that direct evidence
\n\t      in proof of conspiracy can be forthcoming from
\n\t      wholly  disinterested quarters or\t from  utter
\n\t      strangers.  But, like other offences, criminal
\n\t      conspiracy  can  be proved  by  circumstantial
\n\t      evidence.\t  Indeed,  in most  cases  proof  of
\n\t      conspiracy  is largely inferential though\t the
\n\t      inference\t must  be founded  on  solid  facts.\n<\/p>\n
\t      Surrounding  circumstances and antecedent\t and
\n\t      subsequent   conduct,  among  other   factors,
\n\t      constitute relevant material.  In fact because
\n\t      of the difficulties in having direct  evidence
\n\t      of criminal conspiracy, once reasonable ground
\n\t      is  shown\t for  believing\t that  two  or\tmore
\n\t      persons  have conspired to commit\t an  offence
\n\t      then  anything  done  by\tanyone\tof  them  in
\n\t      reference to their common intention after\t the
\n\t      same is entertained becomes, according to\t the
\n\t      law  of  evidence, relevant for  proving\tboth
\n\t      conspiracy and the offences committed pursuant
\n\t      thereto.”\n<\/p>\n
Similar view was also reiterated by this Court in V.C Shukla
\nv. State (Delhi Admn.)14.\n<\/p>\n
97.Although  we\t have  already\tdiscussed  the\tfacts  and
\ncircumstances  appearing  against the  appellants  Gurbachan
\nSingh and Raj Pal Sharma indicating their direct involvement
\nin  the conspiracy of murder of Urshia and her two  children
\nyet at the risk of repetition we shall in brief re-state the
\nsame.\t It   is  evidently  clear  from   the\t series\t  of
\ncircumstances  established by the prosecution and  discussed
\nby us in the foregoing paras that the main brain behind\t the
\nconspiracy who masterminded the plan for the killings of the
\nthree  innocent\t lives is the appellant\t Suresh\t Bahri,\t the
\nunworthy  husband of Urshia and a brute cruel father of\t the
\ntwo   unfortunate   children,  who  approached\t the   other
\nappellants  Gurbachan Singh and Raj Pal Sharma for  help  in
\nthe  commission\t of the said ghastly crime by  winning\tover
\ntheir  favour  on  account  of\this  friendship\t and   close
\nassociation  with them and as such it appears that they\t had
\nno   hesitation\t  in  extending\t their\thelping\t  hands\t  by
\nconstituting   themselves   as\tmembers\t of   the   criminal
\nconspiracy  hatched by Suresh Bahri.  No doubt there  is  no
\ndirect evidence about the conspiracy and as said earlier  it
\nis  seldom available.  But the trial court has catalogued  a
\nlarge  number of circumstances against the appellants  which
\nhave also been accepted by the High Court and in our opinion
\nrightly so.  The two courts below have noticed the movements
\nand  activities\t of appellants Gurbachan Singh and  Raj\t Pal
\nSharma\tat the instance of appellant Suresh right  from\t the
\nbeginning  and long before the murder of Urshia, their\tacts
\nin  arranging  the preparation of a danda, sharpening  of  a
\ndagger,\t preparation of batalies and wooden box, dumping  of
\ndead body of Urshia in
\n13  (1970) 1 SCC 696, 699: 1970 SCC (Cri) 274: AIR  1971  SC
\n885, 886
\n14  (1980)  2  SCC 665: 1980 SCC (Cri) 561,  sub  bom  State
\n(Delhi Admn.) v. VC Shukla, AIR 1980 SC 1382
\n136<\/span>
\nsceptic\t tank  and taking it out again and dumping it  in  a
\nhillock\t at Khad gaddha.  The appellant Raj Pal\t arrives  at
\nRanchi\tin  the last week of September 1983  and  stayed  in
\nRanchi House No. 936 of Suresh Bahri till arrival of  Suresh
\nand his deceased wife Urshia on 1-10-1983 and thereafter his
\nmovements at Ranchi itself till she was done to death on  11\n<\/p>\n
-10-1983 in one of the rooms of the house when appellant Raj
\nPal  Sharma  was  also seen moving about from  one  room  to
\nanother\t wearing  only underwear and having  a\tbloodstained
\ndagger\tin  his hand.  Raj Pal accompanied Suresh  while  he
\nleft Delhi in the ambassador car along with the two children
\nfor Dhulli farm where the party stayed on 16-12-1983 and 17-
\n12-1983 and left Dhulli farm at dawn on 18-12-1983 with\t the
\ndead bodies of the two children, throwing the dead bodies in
\nVaruna\tRiver on their way back to Delhi.  All\tthese  facts
\nclearly\t borne out mainly from the statement of PW 1, PW  2,
\nPW  4,\tPW 6, PW 11, PW 19, PW 29, PW 31 and PW\t 60  besides
\nother  evidence\t that  there was not only  an  agreement  to
\ncommit\tthe  alleged  murders but  the\tappellants  in\tfact
\ncommitted  overt  acts also for fulfilment of  their  object
\nwhich  is  eloquently evident from  the\t evidence  discussed
\nabove.\tAll these facts and circumstances without the  least
\nhesitation  lead  to the only irresistible  conclusion\tthat
\nthey were active members of the agreement who had hatched  a
\nconspiracy to eliminate all the three members of the  family
\nof Suresh and thus actually executed their plan.\n<\/p>\n
98.The\t aforementioned\t  facts\t and   circumstances   fully
\nestablish the offence under Sections 302\/120-B of the  Penal
\nCode  against  the appellants Gurbachan Singh  and  Raj\t Pal
\nSharma\t also  and  there  is  hardly\tanything   deserving
\ninterference  with  the view taken by the two  courts  below
\nafter  a detailed and elaborate discussion of  the  evidence
\nand   material\ton  record.   We,  therefore,  confirm\t the
\nconclusions recorded by the two courts below as well as\t the
\nconvictions of the appellants under Sections 302,  302\/120-B
\nand 201 of the Penal Code.\n<\/p>\n
99.Shri\t Sushil\t Kumar,\t learned  senior  counsel   lastly
\ncontended  that the prosecution kept away for  reasons\tbest
\nknown  to  it the disclosure statement running in  22  pages
\nalleged\t to have been made by the appellant Suresh Bahri  on
\n1-8-1984 before Metropolitan Magistrate, Delhi for which not
\nonly  the  adverse  inference has to be\t drawn\tagainst\t the
\nprosecution  but it vitiated the whole trial.  He  submitted
\nthat  when the appellant Suresh Bahri was arrested on  31-7-
\n1984  and  on  1-8-1984\t produced  before  the\tMetropolitan
\nMagistrate  he had made a statement running in 22  pages  as
\nmentioned in the remand order itself dated 1-8-1982 and also
\nin  his application for grant of bail.\tThat  statement\t has
\nnot been produced by the prosecution for reasons best  known
\nto  it.\t In our considered opinion there is no force in\t the
\nargument.  If actually ;appellant Suresh Bahri had made\t any
\ndisclosure statement it was within his special knowledge  as
\nto  what he had stated in those alleged 22 pages but he\t did
\nnot  divulge  anything in this connection in  his  statement
\nrecorded  under\t Section 313 CrPC as to the nature  of\tthat
\nstatement,  when  he was questioned whether he\thad  to\t say
\nanything  else.\t  Yet learned counsel wants us\tto  draw  an
\nadverse inference against the prosecution.  Learned  counsel
\ndid  not elaborate as to what adverse inference ought to  be
\ndrawn and how and in what manner withholding of the  alleged
\nstatement  could vitiate the trial.  Not only this  but\t the
\nlearned\t counsel appearing for the accused appellant  Suresh
\nat the trial did not put any question
\n137<\/span>
\neven  to the Investigating Officer, Chutia  Police  Station,
\nRaghuvir  Singh,  PW  59, Rajendra Singh, or to\t PW  82\t and
\nMadanlal, PW 85, the CBI Inspectors or any other prosecution
\nwitnesses  about the alleged statement.\t A mere\t mention  in
\nthe  remand  order or bail application does  not  by  itself
\nprove the recording of any statement as alleged without\t any
\nfurther\t evidence  and material being placed  on  record  in
\nsupport\t of  it.   In these facts and  circumstances  it  is
\ndifficult  for\tus to hold that Suresh Bahri  had  made\t any
\ndisclosure statement or if it was so made it would result in
\nvitiating the whole trial.\n<\/p>\n
100. Lastly all the learned counsel appearing for the  three
\nappellants  made  vigorous efforts to persuade us  that\t the
\nevidence  and  circumstances  of the  present  case  do\t not
\njustify\t the extreme penalty of death sentence to the  three
\nappellants or any of them as there is no evidence as to\t the
\nmanner in which the three persons were done to death.\n<\/p>\n
101. It may be noticed that since about the last two decades
\nthere has been throughout the civilized world, a great\tdeal
\nof anguished concern about what sentences be given to  those
\nconvicted  of  crimes.\t It  is also  felt  that  crime\t and
\npunishment have a moral dimension of considerable complexity
\nthat must guide sentencing in any enlightened society.\t The
\ncriticism  of  judicial sentencing has raised  its  head  in
\nvarious\t forms\t that  it is  inequitable  as  evidenced  by
\ndesperate  sentences; that it is ineffective; or that it  is
\nunfair\tbeing either inadequate or in some cases harsh.\t  It
\nhas  been  often  expressed that  there\t is  a\tconsiderable
\ndisparity  in sentencing an accused found to be\t guilty\t for
\nsome  offence.\tThis sentencing variation is bound to  occur
\nbecause of the varying degrees of seriousness in the offence
\nand\/or\tvarying\t characteristics of  the  offender  himself.
\nMoreover,  since  no  two  offences  or\t offenders  can\t  be
\nidentical  the charge or label of variation as disparity  in
\nsentencing  necessarily\t involves  a  value-based  judgment,
\ni.e.,  disparity  to one person may be\ta  simply  justified
\nvariation  to  another.\t It is only when  such\ta  variation
\ntakes the form of different sentences for similar  offenders
\ncommitting  similar  offences  that it can  be\tsaid  to  be
\ndisparate sentencing.\n<\/p>\n
102.It appears that it was to minimise these  considerations
\nindicating  the areas of imposition of\tpenalties  including
\nthe extreme penalty of death that the Legislature introduced
\nsub-sections  (3)  and\t(4) in Section 354 of  the  Code  of
\nCriminal Procedure in the new Code of 1973.  Sub-section (3)
\ncontemplates   that  when  conviction  is  for\tan   offence
\npunishable   with   death  or  in   the\t  alternative,\t the
\nimprisonment  for life or imprisonment for a term of  years,
\nthe  judgment  shall  state the\t reasons  for  the  sentence
\nawarded, and, in the case of sentence of death, the  special
\nreasons\t for such sentence (emphasis supplied).\t Thus,\tsub-
\nsection\t (3)  of  Section  354 lays down  that\tin  case  of
\nsentence  of death the judgment shall state special  reasons
\nfor such sentence.  This gives an impression that in the new
\nCode  of  Criminal Procedure the emphasis is that  the\tlife
\nimprisonment for the offence of murder is the rule and death
\nsentence an exception to be resorted to for special  reasons
\nto  be\trecorded  in  the  judgment.   For  these   reasons,
\ntherefore,  as\tfar  as\t the extreme  penalty  of  death  is
\nconcerned   the\t sentencing  discretion\t of  the  court\t  is
\ncircumscribed  within the parameters of a formula laid\tdown
\nby  this  Court in Bachan Singh case15 as well\tas  in\tsome
\nother subsequent decisions that
\n15  Bachan Singh v. State of Punjab, (1980) 2 SCC 684:\t1980
\nSCC (Cri) 580
\n138<\/span>
\nthe extreme penalty should not be inflicted except in rarest
\nof  the rare cases and on the four principles,\tnamely,\t (1)
\nthe extreme penalty of death may not be inflicted except  in
\ncases  of  extreme culpability, (2) before  opting  for\t the
\ndeath  penalty\tthe circumstances of the  offender  be\talso
\ntaken into consideration along with the circumstances of the
\ncrime,\t(3)  life  imprisonment is the rule  and  the  death
\nsentence  is an exception.  In other words,  death  sentence
\nhas to be imposed only while life imprisonment appears to be
\naltogether  inadequate\tpunishment  having  regard  to\t the
\nrelevant circumstances of the crime and (4) aggravating\t and
\nmitigating circumstances have to be given full weightage and
\nthe  balance  has to be struck between the  aggravating\t and
\nmitigating circumstances before the option of the punishment
\nhas  to\t be  exercised.\t  The  Supreme\tCourt  affirmed\t the
\naforesaid  principles laid down in Bachan Singh case15 in  a
\nsubsequent  decision  also  in\tMachhi\tSingh  v.  State  of
\nPunjab16  by  maintaining the sentence of death\t imposed  on
\nMachhi\tSingh  who had killed Biban Bai and her\t three\tsons
\nwith firearm.\n<\/p>\n
103.In\tDhananjoy Chatterjee v. State of W.B.<\/a> 17 one  of  us
\n(Dr Anand, J.) who was a member of the Bench which delivered
\nthe  judgment,\tspeaking  for  the  Court  crystallised\t the
\nprinciples  governing the criminal sentencing by the  courts
\nin  view  of  the changed legislative  policy  contained  in
\nSection 354(3) CrPC and in para 14 of the report observed as
\nfollows: (SCC p. 239, para 14)
\n\t      “In  recent  years,  the\trising\tcrime\trate
\n\t      particularly  violent crime against women\t has
\n\t      made  the criminal sentencing by the courts  a
\n\t      subject of concern.  Today there are  admitted
\n\t      disparities.   Some criminals get\t very  harsh
\n\t      sentences while many receive grossly different
\n\t      sentence\tfor an essentially equivalent  crime
\n\t      and   a  shockingly  large  number   even\t  go
\n\t      unpunished,  thereby encouraging the  criminal
\n\t      and  in the ultimate making justice suffer  by
\n\t      weakening\t  the  system’s\t  credibility.\t  Of
\n\t      course, it is not possible to lay down any cut
\n\t      and  dry\tformula relating  to  imposition  of
\n\t      sentence\tbut the object of sentencing  should
\n\t      be   to  see  that  the  crime  does  not\t  go
\n\t      unpunished and the victim of crime as also the
\n\t      society has the satisfaction that justice\t has
\n\t      been done to it.\tIn imposing sentences in the
\n\t      absence  of specific legislation, Judges\tmust
\n\t      consider\t variety   of  factors\t and   after
\n\t      considering  all those factors and  taking  an
\n\t      overall view of the situation, impose sentence
\n\t      which they consider to be an appropriate\tone.
\n\t      Aggravating  factors  cannot  be\tignored\t and
\n\t      similarly\t mitigating circumstances have\talso
\n\t      to be taken into consideration.”\n<\/p>\n
\t      In  the  said  report  it\t has  been   further
\n\t      observed in para 15 as follows: (SCC p. 239)
\n\t      “In our opinion, the measure of punishment  in
\n\t      a given case must depend upon the atrocity  of
\n\t      the crime; the conduct of the criminal and the
\n\t      defenceless  and\tunprotected  state  of\t the
\n\t      victim.  Imposition of appropriate  punishment
\n\t      is  the manner in which the courts respond  to
\n\t      the  society’s  cry for  justice\tagainst\t the
\n\t      criminals.  Justice demands that courts should
\n\t      impose punishment befitting the crime so\tthat
\n\t      the  courts reflect public abhorrence  of\t the
\n\t      crime.  The courts must not only keep in\tview
\n\t      the rights of the
\n\t      16  (1983) 3 SCC 470: 1983 SCC (Cri) 681\t AIR
\n\t      1983 SC 957
\n\t      17  (1994) 2 SCC 220: 1994 SCC (Cri)  358\t nJT
\n\t      (1994) 1 SC 33
\n\t      139<\/span>
\n\t      criminal\tbut  also rights of  the  victim  of
\n\t\t\t    crime   and\t  the  society\t at   large while
\n\t      considering    imposition\t   of\t appropriate
\n\t      punishment.”\n<\/p>\n
104.Having  regard  to the principles  formulated  by  this
\nCourt\tdiscussed   above,  we\thave   given   our   anxious
\nconsideration to the question of sentence to the  appellants
\nand  have also examined in depth and with great concern\t the
\nfacts and circumstances of the present case and the  reasons
\nassigned  by the two courts below for awarding\tthe  extreme
\npenalty of death to the three appellants before us.  At\t the
\ncost  of repetition we may recall that the appellant  Suresh
\nhad  strong motive and entertained some\t grievances  against
\nhis wife Urshia because she had made up her mind to  dispose
\nof  Ranchi  house  and migrate to  America  along  with\t her
\nchildren with the sale proceeds against the wishes of Suresh
\nand, therefore, to put an end to her life, Suresh planned  a
\nlong-drawn plot and hatched a conspiracy with the appellants
\nGurbachan  Singh  and Raj Pal Sharma for execution  of\tthis
\nplan.  Urshia not even having an inkling of the evil designs
\nand hidden unholy intentions of her husband accompanied\t him
\nfrom  Delhi to Ranchi on 1-10-1983 with a view\tto  finalise
\nthe deal of house and execute the sale deed.  But  according
\nto  the\t pre-plan she was done to death in  the\t intervening
\nnight  of 10- 10- 1983 and 11-10-1983 and she could not\t see
\nthe  light of 11-10-1983 when sale deed was to be  executed.
\nThe  evidence  discussed  above shows that  her\t murder\t was
\ncommitted  in  an extremely, brutal,  gruesome,\t diabolical,
\nrevolting  and dastardly manner so as to arouse intense\t and
\nextreme\t  indignation  of  the\tsociety.   The\tvictim\t was
\nsubjected  to  inhuman\tacts of torture\t and  cruelty  while
\ncausing her murder as her body was truncated into two  parts
\nin a devilish style evincing total depravity simply to\tgain
\ncontrol\t over the property.  Having been not satisfied\twith
\nthe killing of his wife Suresh Bahri was further  determined
\nto kill his innocent two children at Dhulli farm making them
\nbelieve that they were being taken on a pleasure trip to the
\nfarm  and then after they were done to death  by  inflicting
\nsevere\tinjuries on neck and other parts of the\t body  threw
\ntheir\tdead   bodies  in  the\tVaruna\t river\t having\t  no
\nconsideration  for the human life and that too for  his\t own
\nflesh\tand  blood.   Suresh  Bahri  may  be   having\tsome
\ndifferences  with his wife with regard to the sale of  house
\nand  her idea about settlement with the children at  America
\nbut  he certainly had no grievance or even any remote  cause
\nagainst his innocent minor children who could never conceive
\nthat their father who was their guardian of the first degree
\nwas taking them to Dhulli farm for committing their gruesome
\nmurder.\n<\/p>\n
105.The cold-blooded cruel murder of the innocent  children
\nby none else but by their own real father shows the enormous
\nproportion  with which it was committed\t eliminating  almost
\nall  members  of  the family.  We  have\t given\tour  serious
\nthoughts  and  consideration  and  posed  the  question\t  to
\nourselves  whether  there could be still a worse  case\tthan
\nthis where a husband could hatch a 7\tconspiracy and\tkill
\nhis  wife  in a most callous and ghastly fashion as  in\t the
\npresent case only on a trifling matter which could have been
\nsorted out in an amicable manner for which no effort appears
\nto  have  been\tmade  by Suresh.   Not\tonly  this  but\t the
\nappellant  Suresh  became thirsty of the blood\tof  his\t own
\nchildren  for absolutely no fault of theirs.  In  the  facts
\nand circumstances discussed above, in our opinion, so far as
\nSuresh\tBahri is concerned, the rule of the rarest  of\trare
\ncases has to be applied as the present case falls within the
\ncategory   of  the  rarest  of\trare  cases  and   for\t the
\nperpetration of the crime of the
\n140<\/span>
\nnature\tdiscussed above there could be no other\t proper\t and
\nadequate sentence except the sentence of death as there\t are
\nno  mitigating circumstances whatsoever.  Having  regard  to
\nall  the facts and circumstances of the present case as\t far
\nas  Suresh  Bahri  is concerned there is no  cause  for\t any
\ninterference  in the view taken by the two courts  below  in
\nawarding  the death sentence to him.  We, therefore,  affirm
\nthe  conviction and sentence of death awarded to  Suresh  by
\nthe  High  Court.  In the event of the\texecution  of  death
\nsentence, the sentence awarded under Section 201 of the\t IPC
\nshall remain only of academic interest.\n<\/p>\n
106.As\tfar as the question of sentence to  the\t appellants
\nGurbachan  Singh  and Raj Pal Sharma is\t concerned,  we\t may
\nstate  that there is convincing and conclusive evidence\t for
\ntheir  involvement and active participation in the  criminal
\nconspiracy with Suresh to do away with the three members  of
\nhis family.  But from the evidence on record as discussed by
\nus  in\tthe earlier part of this judgment it is\t clear\tthat
\nGurbachan Singh had reached the house of Suresh at Ranchi in
\nthe  fateful evening of 10- 10-1983 when Urshia was  already
\ndone  to  death by the appellant Suresh Bahri  and  Raj\t Pal
\nSharma,\t when Raj Pal Sharma was seen wearing  an  underwear
\nholding\t a dagger in his hand and cleaning the blood in\t the
\nroom with cotton.  From the evidence it is, therefore, clear
\nthat  Gurbachan\t was  not a party to the  actual  murder  of
\nUrshia\talthough  he was an active member of the  party\t who
\nhatched\t the conspiracy to kill her.  Similarly it  is\talso
\nclear  from  the  evidence that we  have  discussed  in\t the
\nearlier\t part of this judgment that though  Gurbachan  Singh
\nrendered assistance in sending the cot and chairs to  Dhulli
\nfarm  and sharpening the dagger and batalies for the  murder
\nof two children but he in fact was not present on 17-12-1983
\nand  18-12n-1983 at Dhulli farm when the two  children\twere
\ndone  to death by the appellants Suresh and Raj Pal  Sharma.
\nIn  these  facts  and circumstances,  in  our  opinion,\t the
\nappellant  Gurbachan  Singh  does not  deserve\tthe  extreme
\npenalty\t of death but the adequate sentence for the part  he
\nplayed\twould be life sentence.\t We, therefore, commute\t his
\nsentence of death into that of life sentence and modify\t the
\njudgment of the two courts below accordingly to that extent.\n<\/p>\n
107.This  brings  us  to the question  of  sentence  to\t be
\nawarded to the appellant Raj Pal Sharma.  There is no  doubt
\nthat there is ample evidence for his active participation in
\nthe  murder  of\t Urshia\t as well as in\tthe  murder  of\t two
\nchildren  but the prosecution evidence is silent  about\t the
\nactual part that he played in the two murders and the manner
\nin which he acted in the said killings.\t It is difficult  to
\ntake  a\t definite  view\t that the part\the  played  in\tsaid
\nkillings  was  cruel  and callous or it\t was  the  appellant
\nSuresh\talone  who took the leading part and did  the  whole
\nthing by himself while the appellant Raj Pal Sharma assisted
\nhim in one or the other manner.\t In such a situation, in our
\nopinion,  it  would  not be proper to  inflict\tthe  extreme
\npenalty of death to Raj Pal Sharma also but in the facts and
\ncircumstances of the case the sentence of life\timprisonment
\nwill  be just and proper sentence.  We,\t therefore,  commute
\nhis  sentence  of  death  also\tinto  a\t sentence  for\tlife
\nimprisonment  and  modify the judgments of  the\t two  courts
\nbelow accordingly.\n<\/p>\n
108.In the result Criminal Appeal No. 329 of 1992  entitled
\nSuresh\tChandra Bahri v. State of Bihar<\/a> fails and is  hereby
\ndismissed.   The conviction and sentences awarded to him  by
\nthe two courts below are affirmed.  The Criminal Appeal\t No.
\n159 of 1992 entitled Gurbachan Singh v. State of Bihar and
\n141<\/span>
\nCriminal  Appeal No. 160 of 1992 entitled Raj Pal Sharma  v.
\nState  of  Bihar  are hereby partly allowed  to\t the  extent
\nindicated above.  The conviction of the appellants Gurbachan
\nSingh under Sections 302\/120-B and 201 as well as conviction
\nof appellant and Raj Pal Sharma under Sections 302, 302\/120-
\nB and 201 of the Penal Code are maintained but the  sentence
\nof  death  awarded  to\tboth of\t them  under  Sections\t302,
\n302\/120-B  is  set aside and instead they are  sentenced  to
\nlife  imprisonment.   Their sentence under  Section  201  is
\nmaintained.  All the sentences shall run concurrently.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Suresh Chandra Bahri vs State Of Bihar on 13 July, 1994 Equivalent citations: 1994 AIR 2420, 1995 SCC Supl. (1) 80 Author: F Uddin Bench: Faizan Uddin (J) 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-118500","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSuresh Chandra Bahri vs State Of Bihar on 13 July, 1994 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/suresh-chandra-bahri-vs-state-of-bihar-on-13-july-1994\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Suresh Chandra Bahri vs State Of Bihar on 13 July, 1994 - 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