{"id":57221,"date":"2002-08-29T00:00:00","date_gmt":"2002-08-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lakshmi-ors-vs-state-of-u-p-on-29-august-2002"},"modified":"2015-04-08T20:21:47","modified_gmt":"2015-04-08T14:51:47","slug":"lakshmi-ors-vs-state-of-u-p-on-29-august-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lakshmi-ors-vs-state-of-u-p-on-29-august-2002","title":{"rendered":"Lakshmi & Ors vs State Of U.P on 29 August, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Lakshmi & Ors vs State Of U.P on 29 August, 2002<\/div>\n
Author: Y Sabharwal<\/div>\n
Bench: Y.K.Sabharwal, H.K. Sema.<\/div>\n
           CASE NO.:\nAppeal (crl.) 619  of  2000\n\n\n\nPETITIONER:\nLAKSHMI & ORS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U.P.\n\nDATE OF JUDGMENT:\t29\/08\/2002\n\nBENCH:\nY.K.Sabharwal & H.K. Sema.\n\n\n\n\nJUDGMENT:\n<\/pre>\n
Y.K. Sabharwal, J.\n<\/p>\n
\tThe first information report (FIR) was recorded on the statement of
\nSitaram father of deceased Ratan and Uncle of deceased Ramesh.
\nTherein the names of accused Roshan and his four sons Lakshmi,
\nBrahma, Kishan Chand and Shyam Sunder are mentioned.  The 6th
\naccused mentioned in the FIR is by description viz.  brother-in-law of
\nIshwar Chand.\n<\/p>\n
The FIR, inter alia, records that Ishwar Chand of the same village as
\nthe informant had been murdered. The murder had taken place in different
\nvillage, namely, Sondha, Police Station Modi Nagar, District Ghaziabad.
\nDeceased Ratan, Moolchand who is brother of Sitaram and other men
\naccompanied Brahma and Roshan to bring back the body of Ishwar.
\nIshwar was son of Roshan.  After the body of Ishwar had been brought
\nback to the village, when the villagers asked Roshan and his sons to
\nperform the funeral rights of Ishwar, they said that it would be performed
\nthe next day in the morning.  Brahma told Ratan that along with the body
\nof Ishwar, they would also burn the bodies of his murderer.  On this, Ratan
\ntold Brahma that first perform the ceremony of Ishwar.\tNext morning,
\nBrahma and Lakshmi called Ratan and Ramesh, took them into
\nconfidence and asked them to get ready for funeral ceremony and to carry
\ntheir revolver with them and also told them that they were also doing so as
\nthey were apprehending some danger.  Sitaram, Moolchand, Ratan,
\nRamesh and other villagers reached the cremation ground to attend the
\nfuneral of Ishwar.  The funeral pyre was prepared and fire was ignited by
\nShyam Sunder and the body started burning.  At this stage, when it was
\nabout 8.30 a.m., Brahma asked Ratan for his revolver which Ratan
\nrefused to give.  Roshan and ‘sala’ (brother-in-law) of Ishwar caught hold
\nof Ratan; Brahma fired with his rifle on the head of Ratan and Lakshmi
\nfired Ratan with the country-made pistol;  meantime  Kishan Chand and
\nShyam Sunder fired at Ramesh; there was pandemonium; all started
\nscreaming and shouting; Lakshmi removed revolver of Ratan.  Sitaram
\ntold him that these persons had always helped him and that is how he was
\nrepaying on which Brahma said that Ratan had got Ishwar murdered and
\nthey have taken revenge.  Further, it records that all these people took the
\ndead bodies of Ratan and Ramesh and put the said bodies on the pyre of
\nIshwar and these bodies also started burning.\n<\/p>\n
\tAfter the investigation, 8 persons were put to trial for offences under
\nSection 147, 148, 302, 149 and 201 IPC.\t Besides the aforesaid five
\nnamed persons and Dharamvir  brother-in-law of Ishwar, two other
\npersons who were put to trial were accused No.7 Shatrughan and
\naccused No.8 Baleshwar.\n<\/p>\n
\tTrial Court acquitted Shatrughan and Baleshwar.\t The remaining six
\nwere convicted of the offences.\t It was held that the prosecution had
\nestablished that the said six accused had formed an unlawful assembly
\nwith the common object of committing murders of Ratan and Ramesh;
\nwhile Roshan and Dharamvir had no arms, the remaining four were armed
\nwith deadly weapons  gun and pistols; the murder was committed in the
\nfuneral ground with a view to take revenge by burning their dead bodies
\nalong with the dead body of Ishwar as accused thought that Ratan and
\nRamesh were responsible for committing murder of Ishwar.  For offence
\nunder Section 302 read with Section 149 IPC, imprisonment for life was
\nimposed on all the six besides other sentences for offences on which they
\nwere found guilty including rigorous imprisonment for three years for
\noffence under Section 201 read with Section 149 IPC.\n<\/p>\n
\tThree criminal appeals and one criminal revision were preferred
\nbefore the High Court challenging the judgment and order of the trial
\ncourt.\tOne appeal was filed by six accused challenging their conviction
\nand sentence.  Two appeals were filed by the State  in one appeal
\nacquittal of Shatrughan and Baleshwar was questioned and in the other
\nthe State prayed for enhancement of imprisonment for life imposed on
\nBrahma on the ground that he had committed murder while undergoing
\nlife imprisonment and, therefore, death penalty should have been imposed
\non him.\t Criminal revision was filed by the complainant praying for the
\nenhancement of sentence of the six accused persons.\n<\/p>\n
\tThe aforementioned appeals and revision petitions were disposed
\nof by a common judgment and order of the High Court.  Both the appeals
\nof the State and criminal revision were dismissed.  The criminal appeal
\nfiled by the accused persons was partly allowed.  The conviction and
\nsentence of Dharamvir was set aside.  The conviction and sentence of
\nRoshan for offence other than that under Section 201\/149 was set aside.
\nThe conviction of Roshan for offence under Section 201\/149 was
\nconverted to one under Section 201 IPC and sentence of three years
\nimposed on him by the trial court in respect of Section 201\/149 IPC was
\nconfirmed.  Conviction of other accused persons, namely, Brahma,
\nLakshmi, Shyam Sunder and Kishan Chand was in substance confirmed
\nwith the only modification that their conviction under Sections 302\/149 and
\n201\/149 was converted to one under Section 302 and Section 201 IPC
\nand sentences imposed by the trial court were maintained.  They were,
\nhowever, acquitted of charge under Section 148 IPC.\n<\/p>\n
\tIn these appeals, the judgment and order of the High Court has
\nbeen challenged.  Criminal appeal No.619\/2000 has been preferred by
\nLakshmi, Shyam Sunder and Kishan Chand challenging their conviction
\nand consequent sentence by the trial court as confirmed by the High Court
\nin the manner aforestated.  Criminal Appeal No.620\/2000 has been filed
\nby Roshan challenging his conviction and sentence for offence under
\nSection 201.  Special Leave Petitions filed by the State challenging the
\njudgment of High Court confirming the acquittal of Shatrughan and
\nBaleshwar and also the dismissal of the other criminal appeals that had
\nbeen filed by the State in the High Court seeking enhancement of
\nsentence of Brahma have already been dismissed.\t  The State has,
\nhowever, been granted leave only in respect of its challenge to the
\nacquittal of Roshan and Dharamvir (Criminal Appeal Nos.944-45\/2000).\n<\/p>\n
\tWe have heard Mr. P.P. Malhotra, in support of Criminal Appeal
\nNo.619\/2000, Mr. R.K. Shukla in support of Criminal Appeal No.620\/2000,
\nMr. Praveen Swarup for State in all the appeals, Mr. R.K. Shukla and D.K.
\nGarg for respondents in State appeals and Mr. O.P. Sharma for the
\ncomplainant.  Mr. Malhotra, on instructions, stated that Brahma died after
\nthe decision of the appeals by the High Court.\n<\/p>\n
We have with the assistance of learned counsel perused the
\nrelevant documents and the testimony of the witnesses.\tThe conviction of
\nthe accused persons is based on the testimony of eye-witnesses\tPW1
\nSitaram, PW2 Moolchand and PW5 Babu who have all deposed being
\npresent at the cremation ground when Ratan and Ramesh were shot and
\nthereafter thrown on the pyre of Ishwar.  PW1 is father of Ratan.  PW2 is
\nfather of deceased Ramesh.  PW1 and PW2 are brothers.  PW5 is
\nresident of the same village.  PW3, Smt. Usha is wife of Ratan Lal and is
\nsaid to have reached the cremation ground soon after the incident.  She
\nhas not been believed by the trial court as also by the High Court.  Her
\npresence at the cremation ground as claimed was doubted and on that
\nbasis, Shatrughan and Baleshwar were acquitted in absence of any
\nevidence to connect them with other accused.  We are also not placing
\nany reliance on Smt. Usha.\n<\/p>\n
The incident took place at 8.30 a.m.  The FIR on the statement of
\nPW1 was recorded at 10 a.m.  The FIR named six persons in the manner
\nearlier noticed.\n<\/p>\n
\tMr. Malhotra contended that the prosecution has failed to prove its
\ncase beyond reasonable doubt.  Learned counsel points out that despite
\nthe fact that according to the case of the prosecution four fire arms were
\nused for shooting Ratan and Ramesh, neither of the weapon was
\nrecovered nor the weapon which was allegedly removed from Ratan and
\nsaid to have been taken away by the accused was recovered nor any
\nbullet or pallet was recovered.\t The contention that has been more
\nstrenuously put forth by the learned counsel is that the two bodies have
\nnot been identified and also that their cause of death could not be
\nascertained.  Mr. Malhotra contends that in absence thereof, the
\nconviction could not be maintained.\n<\/p>\n
\tWe have perused the two post mortem examination reports\t one in
\nrespect of Ramesh and the other in respect of Ratan.  Both bodies had
\nbeen extensively burnt.\t They were burning for about two hours before
\nextraction from the burning pyre of Ishwar.  The report in respect of
\nRamesh reads as under :\n<\/p>\n
“The whole body except to external charred and
\nburnt except the middle part of the back.  Both the
\nupper extremities are absent at the level of the
\nshoulder Jts.  The bones of shoulder and both the
\nclavicles are visible and burnt.  Both the lower
\nextremities are absent at the level of lines r 2\/3.
\nThe bones exposed in it are burnt.  Face and
\nscalp is burnt.\t The scalp line is visible.  Ear,
\nNostrils, Eyes are not burnt.  Mouth is closed and
\ndiffered.  The abdomen Cavity is lapsed and
\nburnt, intestine and liver are visible.”\n<\/p>\n
\tThe report in respect of Ratan Lal reads as under :
\n“The whole body is externally burnt and charred
\nupper of the scull is absent.  Cr. Ear is lying burnt.
\nEar, nose & Eyes are burnt, Mouth Y 2 open and
\nin upper lateral. In lower to liver left lateral &
\ncrnisetoth are visible.\t Both the upper extreenitus
\nare absent at level of just below the elbow jt. and
\nthe both visible in it are burnt.  Both lever
\nextremities are absent at the level of the lower Y
\n2 of both the thighs.  The bones visible in it are
\nburnt.\tThe thorasic & abdomal cavity is exposed
\nnon-existent.  The vice are fully in it which are
\nburnt.”\n<\/p>\n
\tAs the bodies were extensively charred and burnt, the definite
\ncause of death could not be ascertained.  In respect of Ramesh, one gun
\nshot wound was stated to be visible.  The post mortem report in respect of
\nRatan does not state anything about any gun shot injury.
\n\tRegarding the identification of the two bodies, we perused Exhibit
\nK-2 prepared after the bodies from burning pyre were taken out as
\naforestated.  K-2 notices that the bodies have been taken out by putting
\nwater.\tThis document mentions that the bodies had been badly burnt and
\nhad no sign of identification except one was of heavy built up and other
\nwas of lightweight.  Ratan was identified by his wife and Ramesh by his
\nfather.\t The theory that Ratan was wearing a muffler and could be
\nidentified on that basis has not been believed by the trial court and the
\nHigh Court.  We do not propose to take a different view of that aspect.
\nUnder these circumstances, it was strenuously contended that in view of
\nthis position of the bodies as is also clear from the post mortem reports,
\nthere was no proper, valid and legal identification and this discrepancy is
\nfatal to the case of the prosecution coupled with absence of proof of
\ncause of death.\n<\/p>\n
\tReferring to Exhibits K-5 and K-16, it was also sought to be
\ncontended that although PW6 Constable Natha Singh took the bodies
\nfrom Police Station at 6.30 p.m. for taking the bodies to the doctor for post
\nmortem reports, but the same were delivered for the post mortem at about
\n12 noon.  It was also pointed out that although PW1 was said to be
\npresent at the time of the preparation of inquest documents, but he was
\nnot a witness to the said documents which makes his presence at the
\ntime of the preparation of the documents doubtful.  Learned counsel
\nfurther pointed out that PW5 deposed that he only saw accused Brahma
\ncarrying the weapon and none else and as per aforesaid post mortem
\nreports, there was only one injury of gun and, thus, it is possible that only
\nBrahma had committed the offence and none else but the entire family
\nhas been implicated.  Some fault was sought to be found in the
\npreparation of the documents of investigation by the Police pointing out
\nthat the documents were prepared in pencil and that in some documents
\nthe first accused mentioned was Kishan Chand whereas in other
\ndocuments other accused was mentioned and on that basis investigation
\nwas challenged as tainted.\n<\/p>\n
\tUndoubtedly, the identification of the body, cause of death and
\nrecovery of weapon with which injury may have been inflicted on the
\ndeceased are some of the important factors to be established by the
\nprosecution in an ordinary given case to bring home the charge of offence
\nunder Section 302 IPC.\tThis, however, is not an inflexible rule.  It cannot
\nbe held as a general and broad proposition of law that where these
\naspects are not established, it would be fatal to the case of the
\nprosecution and in all cases and eventualities, it ought to result in the
\nacquittal of those who may be charged with the offence of murder.  It
\nwould depend on the facts and circumstances of each case.  A charge of
\nmurder may stand established against an accused even in absence of
\nidentification of body and cause of the death.\n<\/p>\n
\tThe present case falls under this latter category.  We would
\nassume in favour of the accused persons that the prosecution had failed
\nto conclusively prove as to which was the body of deceased Ratan and
\nwhich was that of Ramesh.  The trial court and the High Court, as earlier
\nnoticed, have disbelieved PW3 Usha wife of Ratan.  The theory of his
\nidentification from muffler has not been accepted.  It is also possible that
\nthe Police or the complainant thinking that identification of the dead
\nbodies would be one of the important aspects to be established may have
\nintroduced the theory of muffler.  The mere fact that in this regard, the
\ncase of the prosecution is not believed by itself does not lead to the
\nconclusion that the accused persons are to be let off when the charges
\nagainst them otherwise stand established on the basis of the other
\nreliable and trustworthy evidence.  Every faulty investigation or padding in
\nevidence cannot by itself lead to total demolition of prosecution case if it
\ncan otherwise stand ignoring these fallacies.\n<\/p>\n
Reverting to the present case, it has to be kept in view that it stands
\nfully established that Ramesh and Ratan and the accused persons were
\npresent at the cremation ground on the date and the time alleged by the
\nprosecution.  It has not been disputed and even otherwise stands
\nestablished that Ratan and Ramesh went with the dead body of Ishwar
\nChand to the cremation ground.\tRoshan in his statement under Section
\n313 Cr.P.C. also does not dispute the presence of PW5 Baburam in the
\nfuneral procession of Ishwar Chand.  Though some attempt was made in
\nthe trial court to dispute the presence of Roshan at the cremation ground
\nby taking a plea that it was not customary for the father to attend the
\ncremation of his son but rightly no such attempt was made before us.  It
\nstands fully established that Roshan and his sons  the accused persons
\nand Dharamvir were all present at the cremation ground.\t The factum of
\nthe murder of Ratan and Ramesh on the date and the time alleged has
\nalso been established and has rightly not been challenged by the
\ndefence.  Their case, however, was that the two deceased were shot by
\nsome unknown person.  The occurrence took place in the broad daylight
\nin the presence of so many persons who had accompanied the dead body
\nof Ishwar Chand to the cremation ground.  It also stands established that
\nthe two bodies were recovered from the funeral pyre of Ishwar Chand
\nafter they had been badly burnt for over two hours.\n<\/p>\n
\tIt was not and could not, under the circumstances of the case, be
\nthe plea of anyone that all the three persons died together and were
\ncremated together.  The facts and circumstances do not suggest any
\nsuch theory.  Further, even in case of all simultaneous cremations of
\npersons dying together, separate pyres are set up for individual dead
\nbodies and not one for three persons belonging to three families, i.e., one
\nson of Roshan, another son of Sitaram and another that of Moolchand.  A
\ngreat stress was laid by Mr. Malhotra that it could not be said as to which
\nwas the body of Ratan and which was that of Ramesh and that it was not
\npossible to identify the said bodies on the basis that one of them was of
\nheavy built up.\t We would assume that it was so.  The assumption that
\nbodies could not be identified, as contended, on the contextual facts,
\nwould make no difference.  Keeping in view the manner in which Ratan
\nand Ramesh were killed and put on the pyre of Ishwar Chand, it would
\nhardly make any difference as to which out of them was the body of
\nRatan and which was that of Ramesh.\n<\/p>\n
\tThe reasons given above would equally apply to the absence of
\ncause of death.\t The bodies had been extensively burnt and for that
\nreason, it could not be ascertained whether the cause of death was
\nshooting or burning.  That also explains non-recovery of the pallets which
\nwould have lost in the burning pyre.  The fact that the investigating team
\nwas not vigilant and did not take the trouble of searching pallets in the
\npyre would not be destructive of the prosecution case when it has been
\notherwise proved.  It is not open to the accused persons to first make an
\nattempt to destroy the evidence by throwing the two in fire and then
\ncontending that they are entitled to be acquitted for want of proof of
\nidentification of bodies and cause of death.  There is unimpeachable
\nevidence of PW1, PW2 and PW5 as to the manner in which the accused
\npersons shot Ratan and Ramesh and threw them in the burning pyre of
\nIshwar Chand.  The FIR was recorded within about an hour and half
\nnaming Roshan and his sons and brother-in-law of Ishwar Chand as
\naccused and also narrating the manner of committing the crime.\tOnce we
\nbelieve PW1, PW2 and PW5, the aspect whether one gun shot wound
\nentry on the body of Ramesh could be found while there was no exit
\nentries or no gun shot injury was found on the body of Ratan, would be of
\nno importance.\tAs already stated, all this was a result of extensively
\nburning of the bodies.\n<\/p>\n
\tThe accused persons were absconding and surrendered nearly
\nthree months after the commission of the crime.\t  That explains the non-
\nrecovery of the weapons which is of no effect on the case.  There is also
\nno substance in the other minor points sought to be urged and noticed
\nhereinbefore including the point regarding the timing of taking of the
\nbodies by the Constable for post mortem or the preparation of some of
\nthe documents by the Police in pencil and mentioning of name of some or
\nthe other as the first accused in some documents or PW1 not being the
\nwitness to inquest documents.  Regarding the contention that PW5 only
\nsaw Brahma carrying weapon and none else, it has to be borne in mind
\nthat Brahma was carrying double barrel gun whereas others were
\ncarrying revolver and country-made pistol which obviously had to be in
\nthe pocket and not demonstrated outside.  We are unable to accept the
\ncontention that only Brahma may have committed the offence and others
\nwere falsely implicated.\n<\/p>\n
\tNow, dealing with the criminal appeal filed by Roshan (Criminal
\nAppeal No.620\/2000) challenging his conviction under Section 201 IPC
\nand criminal appeals filed by the State (Criminal Appeal Nos.944-
\n45\/2000) challenging the acquittal by the High Court of Dharamvir of all
\nthe charges and of Roshan of charge of murder, the factors that have
\nprevailed with the High Court for their acquittal are two  (1) Absence of
\nthe name of Dharamvir in the FIR; and (2) Not believing the prosecution
\ncase that Dharamvir and Roshan caught hold of Ratan and then he was
\nshot by Brahma and Lakshmi.  The High Court has, however, found that
\nthere is definite and consistent evidence that Roshan joined hands with
\nother accused persons in throwing Ratan and Ramesh on the funeral
\npyre.  In respect of Dharamvir and Roshan, the High Court has this to
\nsay :\n<\/p>\n
“The name of Dharamveer was not indicated
\nalthough the complainant knew him thoroughly.
\nThe role of Dharamveer is only to the extent of
\ncatching hold of Ratan.\t The other man who
\ncaught hold of Ratan was Roshan.  According to
\nthe initial story, these two persons embraced
\nRatan from behind (‘kauli bhar liya’).\tSensing the
\ndifficulty that two persons at the same time may
\nnot embrace a person from behind, the story was
\nchanged to catching hold by each, by one hand of
\nRatan.\tIt was argued on behalf of the defence
\nthat when every thing was pre-planned and when
\nshooting was done from a very close range, there
\nwas no necessity for any person to catch hold of
\nRatan.\tIt was argued on behalf of the State that
\nRatan was armed, it was necessary to catch hold
\nof him by his hands.  The fact that Ratan was
\narmed goes against the theory of catching hold,
\nas Taran in that case could have tried to free
\nhimself and to use his arms against the persons
\ncatching hold of him.  Moreover, when he was
\nwithin the range of fire, the story of catching hold
\nfrom behind or even catching hold by hand, does
\nnot appeal to reason.  One of those persons who
\ncaught hold was not named and his name had
\ncome only during evidence.  The story so far this
\naspect is concerned appears to be doubtful.”\n<\/p>\n
\tAs already stated, Roshan got benefit of doubt for the charge under
\nSection 302\/149 but was convicted for offence under Section 201 IPC.
\nThe High Court said that :\n<\/p>\n
“The story of catching hold of Ratan by this
\nDharamveer and Roshan has been changed from
\nthe FIR stage to the trial stage and when
\neverything was settled according to the
\nprosecution story, there was no reason for
\ncatching hold of Ratan and the story is not only
\ncontradictory at two different stages, it appears
\nimprobable also as Ratan having an arm with
\nhim, does not offer any resistance, however, short
\nthe period might have been of that alleged
\nconfinement.  There is no other evidence of
\nparticipation of Roshan in the killing of Ramesh
\nand Ratan.  Dharamveer, therefore, must be
\ngiven the benefit of doubt for all the charges
\nagainst him while Roshan gets a benefit of doubt
\nso far the charge under section 302\/149 as also
\nunder section 147 is concerned.\t There is,
\nhowever, definite and consistent evidence that he
\nhad joined hands with the other accused persons
\nin throwing the dead bodies of Ratan and
\nRamesh on the funeral pyre.  A plea was taken by
\nRoshan that customarily, in their religion, the
\nfather does not attend the cremation of his son.
\nThe overwhelming evidence regarding his
\npresence and participation in disposing of the
\ndead body\/injured body of Ratan and Ramesh
\nsuggests falsehood of this plea.  Roshan although
\nentitled for acquittal of charges under section 147
\nand 302\/149 IPC may not escape the charge
\nunder section 201 IPC.”\n<\/p>\n
\tThe evidence clearly demonstrates that none of the aforesaid two
\nfactors are justified.\tFirstly,  in the FIR recorded on the statement of PW1
\nSitaram, it is stated that Roshan and ‘sala’ (brother-in-law) of Ishwar
\nChand caught hold of Ratan who was fired with rifle on the head by
\nBrahma and by country-made pistol by Lakshmi.  Sitaram also states in
\nthe FIR that he can recognize the brother-in-law of Ishwar Chand on
\nseeing him.  It further notices that all of them threw the dead bodies on
\nthe pyre of Ishwar Chand.  In evidence, PW1 has stated that he was
\nperplexed and could not remember at that time the name of Dharamvir.
\nPW1 has deposed that when Ratan refused to handover his revolver to
\nBrahma, Roshan caught hold of Ratan from one side while Dharamvir
\ntook him in his grip from the other side and within no time Brahma fired
\nhis gun on his head while Lakshmi opened fire from his revolver.  Dealing
\nwith the catching of Ratan by Roshan and Dharamvir, the trial court said :
\n“In this connection it was pointed out on  behalf of
\ndefence that in the report (Ext.Ka.1) (PW1) has
\nstated that Roshan and the brother-in-law of
\nIshwar Chand (Dharamvir) clasped (Koli Bharli)
\nRatan.\tBut now in his statement (PW1) said that
\nRoshan caught him from one side, while
\nDharamvir caught him from the other side.  I think
\nthe word “koli” also means taking in the grip.\tThis
\ndifference of wordings is immaterial.  The fact is
\nthe same.  So there is no difference or
\ncontradiction in the statement of PW1 or of any
\nother witness on  this point.  ‘Koli Bharna’ also
\nmeans catching hold of the person from both the
\nsides.\tAt the same point it may be pointed out
\nthat it was argued on behalf of the defence that
\nthe theory of clapping or (Koli Bharna) is most
\nimprobable and unnatural.  The case of the
\nprosecution is that Roshan and Dharamvir caught
\nhold of Ratan, while Brahma and Lakshmi opened
\ntheir fires on him.  It was contended that this
\nposition is highly improbable, because there was
\nevery risk of causing injury to Roshan and
\nDharamvir as well.  In that position the accused
\nwould not open fire on their own companions.  In
\nthis connection 1961 Criminal Law Journal page
\n396 was cited on behalf of the defence.\t But in
\nthe instant case there was a reason for this
\nclapping or catching hold of Ratan by Roshan and
\nDharamvir.  It has come in evidence that Ratan
\nwas also armed with a Revolver which was
\nhanging around his neck.  In that position there
\nwas every possibility of Ratan’s opening fire on
\nthe accused in case he saw the accused aiming
\ntowards him.  In order to render Ratan unable to
\nuse his arm he was caught hold of by Roshan
\nand Dharamvir making him quite helpless to be
\nused as a target of the fires of Brahma and
\nLakshmi.  Moreover, to avoid risk of injuries on
\nthe persons of Roshan and Dharamvir, Lakshmi
\nand Brahma fired their fire arms on Ratan by
\nplacing the barrels of their fire arms on the very
\nperson of Ratan.  Fixing by putting the weapons
\non the head of Ratan itself shows that it was
\nprecaution to avoid any injury to Roshan and
\nDharamvir who were controlling Ratan.  So this
\nwas quite natural process in the circumstances of
\nthe case.  As there were other persons also
\nincluding the accused near Ratan and Ramesh,
\nthe letter were fired at them very close.\n<\/p>\n
According to PW1 the fires were shot
\ninstantaneously in a short while.  Ramesh was
\nshot at the same moment by Shyam Sunder and
\nKishan Chand.”\n<\/p>\n
\tWe have minutely examined the evidence.\t By no stretch of
\nreasoning, any fault could be found with the aforenoted finding of the trial
\ncourt.\tBy adopting a wholly erroneous approach, the High Court held that
\nthe role of Dharamvir was only to the extent of catching hold of Ratan or
\nfor coming to the conclusion that there was no such need or that there
\nwas any change of the story.  Clearly, there is consistency right from the
\nstage of recording of FIR as to the manner of commission of crime and
\nupto the stage of deposition by PW1 corroborated by other eye-witnesses
\nPW2 and PW5.  From the evidence, it is fully established that deceased
\nRatan had to be immobilized as he was carrying in his neck his revolver;
\nhe was immobilized by catching hold of by Roshan and Dharamvir which
\nfacilitated his shooting by Brahma and Lakshmi and Roshan and
\nDharamvir with others threw him on the pyre of Ishwar.\tRoshan and
\nDharamvir had been charged for offence under Section 302\/149 IPC.
\nThe prosecution has fully established its case against them as well.  We
\nare unable to sustain the acquittal of Dharamvir of the charges under
\nSections 302\/149 and 201\/149 IPC of which he was convicted and
\nconsequently sentenced by the trial court.  Similarly, we are also unable
\nto sustain the acquittal of Roshan of charge under Section 302\/149 IPC.\n<\/p>\n
\tIn view of the aforesaid discussion, we dismiss the appeal (Criminal
\nAppeal No.620\/2000) of Roshan Lal and also Criminal Appeal
\nNo.619\/2000 of the other accused and allow the appeals of the State
\n(Criminal Appeal Nos.944-45 of 2000) and set aside the impugned
\njudgment and order and restore that of the trial court holding Roshan and
\nDharamvir guilty as aforesaid for offences under Section 302\/149 IPC and
\nSection 201\/149 IPC and consequently sentencing them as well.  We
\nrestore the judgment and order of the trial court in respect of Roshan and
\nDharamvir also and to that extent allow the appeals of the State.  In this
\nview, Roshan and Dharamvir shall be taken into custody to undergo the
\nremaining part of their sentences.\n<\/p>\n
\tAll the appeals are disposed of accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Lakshmi & Ors vs State Of U.P on 29 August, 2002 Author: Y Sabharwal Bench: Y.K.Sabharwal, H.K. Sema. CASE NO.: Appeal (crl.) 619 of 2000 PETITIONER: LAKSHMI & ORS. Vs. RESPONDENT: STATE OF U.P. DATE OF JUDGMENT: 29\/08\/2002 BENCH: Y.K.Sabharwal & H.K. Sema. JUDGMENT: Y.K. Sabharwal, J. The first information report […]<\/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-57221","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nLakshmi & Ors vs State Of U.P on 29 August, 2002 - 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\/lakshmi-ors-vs-state-of-u-p-on-29-august-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lakshmi & Ors vs State Of U.P on 29 August, 2002 - 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