STATE Vs. OM PRAKASH

JUDGEMENT

(1.) VISHNU Sahai, J. Seven persons namely Sunder, Kishun Dayal, Santoo, Om Prakash, Ram Prakash, Santosh Kumar and Rajesh Kumar were charged by the Sessions Judge, Sitapur for offences punishable under Section 302 read with Section 149 I. P. C. 323 read with Section 149 I. P. C. and 201 I. P. C. In addition Sunder, Kishun Dayal, Om Prakash, Santosh Kumar and Santoo alias Satram were charged for the offence punishable under Section 147 I. P. C. and Ram Prakash and Rajesh were charged for the offence punishable under Section 148 I. P. C. During the pendency of the trial three of them namely Sunder Lal, Kishun Dayal and Santoo died. Four of them namely Om Prakash, Ram Prakash, Santosh Kumar and Rajesh faced trial on the said charges. Ram Prakash, Santosh Kumar and Rajesh were acquitted by the Special Sessions Judge, Sitapur vide his order dated 16-2- 2001 on all the counts, but vide the said order Om Prakash was convicted and sentenced in the manner hereinafter : (i) Under Section 302 read with Section 34 of the I. P. C. to death and to pay a fine of Rs. 5,000. (ii) Under Section 323 read with Section 34 I. P. C. to undergo one year R. I. and to pay a fine of Rs. 500/- and one month's R. I. in default. (iii) Under Section 201 I. P. C. to undergo seven years R. I. and to pay a fine of Rs. 2,000/-, in default to undergo six month's R. I. Capital sentence No. 2 of 2001 arises out of the reference made by the trial Judge to this Court under Section 366 of the Cr. P. C. for confirmation of the death sentence of Om Prakash. Criminal Appeal No. 129 of 2001 has been preferred by Om Prakash against his convictions and sentences on the aforesaid three counts. He has also sent an appeal from jail viz. Criminal Appeal No. 318 of 2001. Since Capital Sentence No. 2 of 2001, Criminal Appeal No. 129 of 2001 and Criminal Appeal No. 318 of 2001 arise out of a common factual matrix and the same judgment, we are disposing them by one judgment.

(2.) SHORTLY stated the prosecution case runs as under : The informant Ram Asrey was the brother of the deceased Shivaji. About seven years prior to the incident Shivaji had eloped with Suman P. W. 2, daughter of the deceased accused Sunder. At the time of the incident Ram Asrey, Shivaji and Suman were living in village Anandi Purwa, hamlet of Arwa within the limits of Police Station Sakarna, District Sitapur. Since Shivaji had eloped with Suman, Suman's father Sunder, her uncle Krishna Dayal, her brothers Om Prakash, Ram Prakash and Santosh felt humiliated and started nursing a grudge and ill will against Shivaji. On 30-9-1992, at about 3 p. m. when Shivaji, Ram Asrey and Suman were at the house situated at village Anandi Purwa, co-accused Santoo came. Both Shivaji and Santoo started consuming liquor, thereafter Shivaji went away with Santoo. About an hour later, Ram Asrey and Suman heard noise and commotion. On hearing the same they rushed. When they reached near the northern door of Santoo, which was situated approximately at a distance of half kilometre from their house, they saw that accused Sunder, Krishna Dayal and appellant Om Prakash were assaulting Shivaji with lathis and co-accused Santoo was standing there with lathi. On account of fear Ram Asrey did not intervene. However, Shivaji's wife Suman did and was assaulted by Sunder and appellant Om Prakash with lathi. As a consequence of the assault, Shivaji became unconscious. Thereafter Sunder Lal and Santoo caught hold of Suman and Kishun Dayal and Om Prakash took Shivaji forcibly towards Birai Purwa on a Cycle. Suman was also taken to the said place. Near the culvert of Birai Purwa they found that co-accused Rajesh armed with Banka, co- accused Ram Prakash armed with Hansiya (sickle) and co-accused Santosh Kumar were standing there. At about 10 p. m. Shivaji, Suman and accused persons reached near Kiwani River. At that time Shivaji was made to lie down on a Dhoti. Thereafter appellant Om Prakash put up Banka on the neck of Shivaji took the Banka, which was in the hands of co-accused Rajesh and a sickle and severed the head of Shivaji. As a consequence thereof, blood started oozing out. Om Prakash drank the said blood. When Suman tried to raise cries, accused persons threatened to kill her. Thereafter they cut open the stomach of Shivaji and threw his body in Kiwani river. Thereafter they washed Hansiya and Banka from the water of the river and also washed the place of the incident with the water of the river. Then the accused persons took the head of Shivaji and Suman with them. Co-accused Sunder and Santoo took Suman to Badhianpurwa. Accused persons along with Suman and head of the deceased stopped there. They kept Suman for two days in Badhianpurwa. Thereafter, they took her to her sister's house in village Jamunapur and kept her there for two days. From there, one morning on the ploy of answering the call of nature, Suman escaped and came to her house situated in village Anandi Purwa, where she was residing with her husband and Ram Asrey at the time of the incident. On 6-10-1992 while Suman was going along with Ram Asrey, S. I. , Lalla Singh, P. W. 3 of Police Station Sakran, who was going via Tanser road to Kasbapur, met them. He took Suman to the police station and recorded her statement.

(3.) WE have already seen that on 6-10-1992 Suman was interrogated by S. I. Lalla Singh. On 7-10-1992 at the instance of Suman, he inspected the place where Shivaji had been killed and prepared its site plan. Thereafter he started searching for the corpse of Shivaji and took out the same from Kiwani river on 8- 10-1992. Suman identified it as that of her husband. Thereafter he sent the corpse for autopsy.