Case: State Of U.P Vs. Om Prakash

2. An FIR was lodged by the Complainant Lalta Prasad at the PS Bukhera, District Pilibhit, U.P. on 10th March, 2001 alleging that while he along with Hem Raj, Moti Ram Kundan, Shiv Charan Lal S/O Hai Shankar and his father Devi Ram were sitting at his crusher and celebrating the festival of Holi along with relatives and friends, the accused No. 7 Ram Swaroop S/O Hori Lal appeared there with the company of other accused carrying different types of arms and attacked them. The motive behind their attack was that about ten months prior to the incident, Imarati Devi, wife of accused No. 7 (Ram Swaroop) had contested and lost the election for the post of Gram Pradhan and Ram Swaroop (accused No. 7) had threatened the villagers to bear the brunt for not getting his wife elected to the post. He, therefore, wanted to take revenge on the villagers. Other accused who accompanied Ram Swaroop were Jagan Lal (accused No. 2) armed with a gun, Ram Bharosey (accused No. 32) carrying Pauniya, Ashok Kumar (accused No. 31), Kunwar Sen (accused no.26), Lala Ram (accused no.22) and Ram Swaroop s/o Dal Chand (accused no.2) all armed with Country made pistols. Pati Ram (accused no.12), Hori lal (accused no.28), Om Prakash (accused no.1), Ram Chandra (accused no.11), Bhagwan Swaroop (accused no.13) , Lalta Prasad (accused no.8), Bhagirathi (accused no.3), Budhsen (accused no.9), Baljeet (accused no.10) and Nanhey Lal (accused no.14) were armed with banka. Other accomplices were Dal Chand (accused no.29) armed with Suja, Shree Krishna (accused no.18), Mahesh (accused no.17), Dharamveer (juvenile), Lalman (accused no.15), Chetram (accused no.24), Kalicharan (accused no.23), Gaya Deen (juvenile, died during trial), Nanhoo Lal (accused no. 21), Kanhai Lal (accused no.27), Nokhey Lal S/O Ram Dayal (accused no.19) and Om Prakash (accused No. 16) who were carrying lathis in their hands.3. According to the complainant, Ram Swarup (accused No. 7) exhorted other accused to kill the complainant party. Out of fear, the complainant with his family and friends ran helter skelter to save their lives. The accused party chased them assaulted them indiscriminately and opened fire. When some of the members of the complainant party entered into a kothari (a small room in the field) to save themselves from the ruthless firing of accused party, the women accused Maya Devi (accused No. 4), Amriti Devi (accused No. 5) and Sunita Devi (accused No. 6) carrying kerosene oil with them, poured the same on the khaprail of the Kothari and Ram Swaroop (accused no. 7) set it ablaze from the front side and Uma Shankar (accused No. 34) set the fire from back side. Moti Ram, a victim, tried to jump from the roof of the Kothari but he was shot by Ram Swaroop (accused No. 7) resultantly he fell in the fire. Similarly, other victims Hem Raj, Chunni Lal and Mahendra Pal tried to come out of the Kothari, but they too were shot. When the accused left the place, the complainant found Mahendra Pal lyind dead in a drain, Moti Ram was lying in the Kothari in a burnt condition. The dead bodies of Hem Raj and Chunni Lal were found in the fields.4. Having registered the case, SHO P.K. Sharma (PW 14) rushed to the place of occurrence, recorded statements and prepared site plan. The police then recovered 3 empty cartridges, prepared recovery memo (Ext. Ka. 109), prepared inquest reports of the deceased, collected blood stained and plain earth and sent the bodies for postmortem. He then arrested the accused Dharamveer (juvenile), Maya Devi and Mahesh. Seven other accused Jangan Lal, Narain, Ram Bharose, Budhsen, Bhagirath, Baljeet and Nanhey Lal were also arrested immediately and weapons were recovered from their possession. On 17th March, 2001 police arrested seven more accused persons, namely, Lalman, Kali Charan, Gaya Deen, Nanhoo Lal, Kanhai Lal, Nokhey Lal and Rambhadur and lathis and ballams were recovered from them. On the next day, ten more accused including accused No. 7 (Ram Swaroop) were arrested and a 12 bore No. 4236 (gun) with three live cartridges were recovered from his possession. One 12 bore country made Pauniya and one live cartridge were reovered from Uma Shankar. A country made pistol and one live cartridge were recovered from the possession of Ashok Kumar. From the possession of Pati Ram, Ram Chandra, Bhagwat Swaroop and Lalta Prasad bankas were recovered. Lathis were recovered from Chet Ram, Om Prakash S/O Hira Lal. While accused Lala Ram was arrested on 20 th March, 2001, Ram Swaroop S/O Dal Chand, Kunwar Sen, Shree Krishna and Om Prakash S/O Mansha Ram surrendered in Court. Some more weapons were recovered at the instance of Ram Swaroop S/O Dalchand, Kunwar Sen and Shree Krishna. Charge-sheet (Ext. Ka. 120) was submitted after investigation and the case was committed to the Court of sessions.5. One juvenile accused, namely, Gayadin was stated to be dead and other accused Dharamvir was being tried by the Juvenile Court as he was also found to be Juvenile on the date of incident. The other accused were tried under Sections 302/149 IPC, Sections 148, 436/149 IPC, 307/149 IPC, 506 IPC, Section 7 of the Criminal Law Amendment Act and Section 4 read with Section 25 of the Arms Act. In order to prove its case, the prosecution examined 15 witnesses out of whom Lalta Prasad (PW 1), Leelawati (PW 2), Ved Prakash (PW 3) and Hari Shankar (PW 4) are ocular witnesses.6. Learned Trial Judge after full-fledged trial came to the conclusion that accused Ram Swarup, Jaganlal, Ram Bharose, Uma Shankar, Tulsi, Narayan, Ashok Kumar, Kunwarsen, Lalaram, Ram Swarup, Pati Ram, Hori Lal, Om Prakash S/O Mansharam, Ram Chandra, Bhagwat Swarup, Lalta Prasad, Bhagirath, Budh Sen, Baljit, Nanhe Lal, Dalchand, Sri Krishna, Mahesh, Dharamvir, Lalman, Chetram, Kalicharan, Gayadin, Nanhulal, Kanhailal, Nokhelal, Ram Bhadur, Om Prakash, Ram Swarup S/O Kanhai Lal, Smt. Maya Devi, Smt. Imrati Devi and Smt. Sunita Devi are guilty for the offences under Sections 147, 148, 436/149, 302/149, 307/149 and Section 506, IPC, Section 7 of the Criminal Law Amendment Act and Section 4 read with Section 25 of the Arms Act. They were accordingly sentenced with 2 years R.I. for the offence under Section 148 IPC, 10 years R.I. under Section 436/149 IPC, 10 years R.I. under Section 307/149 IPC, 2 years R.I. for the offence under Section 506 IPC, 6 months R.I. and one year R.I. for the offences punishable under Sections 7 of the Criminal Law Amendment Act and Section 4/25 of the Arms Act, respectively. Accused Ram Swarup S/O Horilal, Jagan, Pati Ram, Om Prakash S/O Mansha Ram, Ram Chandra, Bhagwat Swarup, Lalta Prasad, Bhagirath, Budhsen, Baljit, Nanhey Lal, Ram Swarup S/O Kanhai Lal were held guilty of the offence under Section 302/149, IPC. The trial Court thus imposed death penalty against those 12 accused. All the sentences awarded to the accused were however directed to run concurrently.7. Against their conviction and sentence, the accused approached the High Court in various Criminal Appeals while the State preferred Criminal Reference for confirmation of death sentence. The Division Bench of the High Court affirmed the conviction of the accused and upheld the sentence awarded by the Trial Court against all the accused except accused Nos. 1, 2, 3, 7, 8, 9, 10, 11, 12, 13, 14 and 20. The High Court modified the sentence of death to these accused (12 in number) to the imprisonment for life opining that the offence committed by them does not fall under the category of rarest of rare cases. Not satisfied with the judgment of the High Court, the State as well as accused filed appeals before this Court. While the State preferred its appeal for confirmation of death sentence against those 12 accused, the accused filed appeals against their conviction.

Reasoning:
14. Prosecution story is highly improbable for another reason that the `motive has not been established beyond doubt to justify the sentences awarded to the accused. It is a sound presumption that every criminal act is done with a motive. The entire incident had occurred on the spur of moment involving many villagers running helter skelter fanatically out of fear of gunshots in which process some of the villagers got injured. In such a situation, it is not possible for anyone to take note of what exactly had happened. Considering the chaotic situation in which the alleged incident was occurred, it is ludicrous and inconceivable that a detailed report could be filed with the police by 8.10 p.m. on the same day that too when the police station is situated at about 7 = kilometers from the place of occurrence. Hence the prosecution story is totally unbelievable.From the depositions of prosecution witnesses, it is evident that all the accused are interrelated to each other forming a strong group heavily armed with deadly weapons and attacked the victims to retaliate their defeat in the village elections. The plea taken by the accused that it is difficult to identify the accused at the spot when there was participation of about 35 persons in the crime as alleged, cannot be accepted for the reason that admittedly the incident occurred at 5.00 p.m. in the month of March in sufficient light and undisputedly, the accused and the victims know each other very well. Lalta Prasad (PW 1), Lilawati (PW 2), Hari Shankar (PW 4) are injured eyewitnesses whose depositions were corroborated with the evidence of Ved Prakash (PW 3), another independent eyewitness. These witnesses in clear and categorical terms explained the way in which the accused persons committed the murder of Mahender Pal, Hem Raj, Chunni Lal, Moti Ram and Kundan Lal and caused injuries to Ganga Ram, Devi Ram, Kishori Devi and Attar Kali. Thus the presence of witnesses at the time of occurrence and identification of accused by the victims cannot be disputed.22. The statements of prosecution witnesses corroborated by the medical evidence assessed with the facts and circumstances of the case, we find no reason to disbelieve the participation of the accused in the criminal offence of killing five villagers besides causing injuries to several others. The recovery of deadly weapons from the possession of the accused strongly affirms the role played by each of them in the deadly act. We, therefore, see no reason to interfere with the judgments of the Courts below as far as the conviction of the accused is concerned, and we are of the considered opinion that the prosecution proved the guilt of the accused beyond all reasonable doubts. In the result, the appeals preferred by the accused against their conviction stand dismissed and accordingly, the issue is answered.It is settled proposition of law that imposing sentence of death penalty is an exception and it should be awarded only in the rarest of the rare cases. Under the old Criminal Procedure Code, ample discretion was given to the Courts to pass death sentence as a general rule and the alternative sentence of life could be awarded only in exceptional circumstances and that too after recording special reasons for making the departure from the general rule. The Code of Criminal Procedure, 1973 has reversed the said rule. Sentence of imprisonment for life is now the rule and capital sentence is an exception. It has also made obligatory on the Courts to record special reasons, if ultimately, death sentence is to be awarded.As far as the motive of the accused is concerned, the prosecution has alleged that to take revenge on the villagers for not casting their votes in favour of the wife of accused No. 7 who had lost the election, the accused party attacked the victims. It has come on record that the incident took place on 10 th March, 2001 and the elections to the post of Gram Pradhan were held much before the date of occurrence i.e. about ten months before the date of incident. Considering the long time gap between the time of elections and the date of incident, it cannot conveniently be said that the accused attacked the victims with the clear motive of taking revenge for not voting in their favour in the elections.34. The question of magnitude of the offence raised by the learned Additional Advocate General for affording death penalty to the accused, it was a clash between two groups of a village and cannot be ascribed it as enormous in proportion. In a criminal trial when the prosecution seeks to make out a case for imposition of death sentence, the prosecution undoubtedly has to discharge a very onerous burden. The prosecution must discharge this burden by demonstrating the existence of aggravating circumstances and the consequential absence of mitigating circumstances. In discharging such burden, the prosecution has to not only establish its case beyond all reasonable doubt, but also has to prove the commission of the crime and the aggravating circumstances leading to an inference that the case falls within the category of "the rarest of the rare cases", warranting imposition of death penalty.35. However, so far as the sentence part is concerned, the death penalty is now confined to the narrowest region in view of the law referred to hereinabove. We have no hesitation to say that the accused indulged themselves in acts of the most gruesome nature. At the same, it is to be borne in mind that the accused were on a rampage and running berserk with the only sense triggered by the thrust of avenge. The brutality of the murder must be seen along with all mitigating factors in order to come to the conclusion whether the case falls within the ambit of the rarest of the rare cases. Though the incriminating circumstances proved by the prosecution unmistakably and unerringly lead to the guilt of the appellant/accused, but having regard to the observation made by this Court in Machhi Singhs case, after balancing all the mitigating and aggravating circumstances of the case, we are of the view that this case does not fall under the category of the rarest of the rare cases. Further the repetition of such criminal acts at their hands making the society further vulnerable are also not apparent. There is a ray of hope for their reformation and rehabilitation. Hence, we find no fault in the impugned judgment that the case does not fall within the ratio of rarest of rare cases as envisaged by this Court. While considering the nature of offence we are of the considered opinion that the accused can be awarded a lesser punishment than death penalty. Therefore, in our view, the High Court was right in modifying the death sentence awarded by the Trial Judge to that of imprisonment for life.