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PETITIONER: BHUPPENDRA SINGH AND ORS

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT14/03/1991

BENCH: RAMASWAMI, V. (J) II BENCH: RAMASWAMI, V. (J) II AHMADI, A.M. (J) FATHIMA BEEVI, M. (J)

CITATION:  1991 AIR 1083            1991 SCR  (1) 856  1991 SCC  (2) 750        JT 1991 (1)   625  1991 SCALE  (1)437

ACT:      Indian  Panel  Code:  Death cause  by  rifle  shot-Body removed   and  burnt-Recoveries  made  from  the  place   of occurrence-Evidence  of  witness as to  place  of  occurance uniform-Prosecution  case  about  the  place  of  occurrence established.      Fire arms used-First shot by A 1 from the  rifle-Firing by  others followed -Whether first shot hit the forehead  of the  deceased and whether injury caused by that shot  caused his death- Evidence of witness that first shot was fired  by A1  is  consistent but it cannot be predicted  whether  this hit the deceased on his forehead and that injury caused  his death-Conviction  of A1 under section 302 I.P.C. altered  to one under section 307 I.P.C.

HEADNOTE:      Nineteen persons were tried by the Additional  District and  Session  Judge,  Khetri in S.T. No.  264  of  1973  for offences  under section 302/149, 201/149, 379/149,  147  and 148 for the incident that took place on 25.4.1972 in village Padaria  Tula  (UP) on the day of filing of  the  nomination papers  for  election for the post of  Pradhan  Gaon  Sabha, Tikhra  in  which fire arms were used by the  party  led  by Bhupendra  Singh accused no.l, who was also a candidate  for the  office of Pradhan of Gaon Sabha resulting in the  death on the spot of Gajendra Singh, one of the supporters of  the rival candidate Ram Sewak, P.W. 2.      The prosecution case is that both the rival  candidates with  their supporters had come to village Padaria  Tula  on the  morning of 25.4.1972 where nomination papers had to  be filed.  On  seeing  the  party  of  the  deceased  arriving, Bhupendra  Singh enquired from Ram Sewak (P.W.2) if  he  had come  to  file his nomination papers  against  him. Gajendra Singh   (deceased) intervened and  challengingly  told   the accused  no.  1  that  he  should  ask  him.  Following  the altercation that ensued, it is alleged that Bhupendra  Singh fired the first shot on the deceased followed by shooting by his  other associates and the deceased fell dead. The  party of Ram Sewak fled from the scene to escape the                                                        857

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attack. It is further alleged that the body of the  deceased was dragged by Gajendra Singh and his companions and carried by  them on a tractor-trolly belonging to A1 on  which  they had  come,  burnt it and ashes thrown in the  river  causing disappearance of the entire evidence.      The first Additional Judge acquitted all the charges on the   ground  that  there  are  many  infirmities   in   the prosecution case rendering its evidence unworthy of  belief. The  state  of  Uttar Pradesh preferred  appeal  before  the Lucknow  Bench of the Allahabad High Court. The  High  Court set  aside  the  acquittal  of  Bhupendra  Singh  (A1)   and convicted  him  for  offence under  section  302  I.P.C  and awarded  sentence  of Rigorous Imprisonment for life  ,  set aside  the  acquittal of A 4, 7, 8 in part,  convicted  them under  section 201 of I.P.C. and sentenced each of  them  to seven   years   Rigorous  Imprisonment   thereunder.   Their acquittal  under  other  charges was  confirmed.  Appeal  as against   rest   of  the     accused      was      dismissed altogether. A1, 4, 7 and 8 have thus come in appeal  against the judgement of the High Court.      In   party  allowing  the  appeal  setting  aside   the conviction of appellants 2 to 4 (A1, 7, 8) under section 201 I.P.  C.  , and altering the conviction of appellant  No.  1 (A1) from one under section 302 I.P. C. to one under section 307 I.P.C. and sentencing him to a term of 10 years rigorous imprisonment thereunder, this Court.      HELD:  The  evidence only established  that  the  first appellant shot at the deceased but it is not known where the bullet hit and whether that injury caused by the said bullet shot  caused  the death. Even in the case of shooting  by  a rifle unless the evidence shows the particular injury caused by  the same and that injury is sufficient to  cause  death, the  offence under section 302 I.P.C. could not be  said  to have been made out. In the circumstances, therefore, we  are unable to agree with the High Court that the first appellant is  guilty of offence under section 302 IPC  of causing  the death  of  Gajendra Singh. However we are of the  view  that while  the first appellant shot at the deceased there  could be no doubt that either he had the intention to kill him  or at  least he had the knowledge that the act could cause  the death. [863D-E]      We  consider  that  the offence would  come  under  the second  limb  or  second part of section  307,  IPC.  Though imprisonment for life also could be awarded as sentence  for such an offence, on the facts and circumstances we impose  a sentence  of  10 years rigorous imprisonment. We  alter  the conviction  under section 302, IPC to one under section  307 IPC  and  sentence  him  to a  term  of  10  years  rigorous imprisonment. [863G].                                                        858      So  far  as  the  offence  under  section  201  IPC  is concerned we have read the entire evidence carefully and the same  does  not  impress as to bring  home  the  offence  of screening the evidence. [863H,865H]

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION: Criminal  appeal  No. 512 of 1979.      From  the  Judgement and Order Dated 18.7.1979  of  the Allahabad High Court Crl. A No. 564 of 1974.      U.R.  Lalit, Sobhag Mal Jain, Sudhanshu Atreya, Ms.  P. Jain and S.K. Jain for the Appellants.      Vijay Bahuguna, Prashant Chaudhary and D. Bhandari (NP)

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for the Respondent.      The Judgement of the Court was delivered by      V.RAMASWAMI,  J.  The  four appellants  along  with  15 others  were charged for offences punishable  under  Section 302  read  with section 149 and also section 201  read  with section  149  and section 147 and 148 of  the  Indian  Penal Code. The charges were that they were members of an unlawful assembly,  in prosecution of the common object of namely  to deter Ram Sewak (PW2), from filing the nomination paper  for the  post  of Pradhan Gaon Sabha Tikhra and  to  commit  the murder of his associates including one Gajendra Singh  Yadav (deceased),   a   resident  of  village  Bibiapur   and   in furtherance  of that common object did commit the murder  of the  said Gajendra Singh Yadav and live cartrides  belonging to the deceased. They  were also charged that in furtherance of  the said common objects and knowing that the  murder  of the  said  Gajendra  Singh  was  punishable  with  death  or imprisonment  for life and caused the evidence of  the  said offence to disappear by scraping the blood stained earth  at the  scene of occurrence and burning it and taking away  the dead  body of Gajendra Singh and thereafter burning it  with the intention of screening  of evidence.      The first Additional District and Sessions Judge, Kheri in Sessions Trial No. 264 of 1973 acquitted all the  accused persons of all the charges on the ground that there are many infirmities  rendering the prosecution evidence unworthy  of belief. The State of Uttar Pradesh preferred Criminal Appeal No. 654 of 1974 before the Lucknow                                                        859 Bench of the Allahabad High Court. The High Court set  aside the acquittal of the first appellant Bhupendra Singh (1) and convicted  him for offence under section 302 of  the  Indian Penal Code and sentenced him to a term of life imprisonment. The  High Court also set aside the acquittal of the  second, third and fourth appellants (A4, 7 and 8) in part, convicted them under section 201, IPC and sentenced them to a term  of seven  years rigorous imprisonment under that  section.  The acquittal of the appellants under the remaining charges were confirmed.  The  High  court also  acquitted  the  other  15 appellants of all the charges.      The  prosecution  case was that the  deceased  and  Ram Sewak (PW2) who are residents of village Bibiapur  alongwith Tarun Kumar (PW1) son of the deceased, Ram Avtar Yadav (PW3) and their party people came to the village Padarial Tula  in a  bullock-cart on 25.4.1972 for the purpose of  filing  the nomination  papers  of Ram Sewak (PW2) for the  election  of Pradhan  of Gaon Sabha. they reached around 10.30  A.M.  the Mela  Maidan  near  the  compound  of  school-cum-temple  in village  Padaria  Tula. They left the bullock-cart  and  the bullocks  in  a  nearby place to the  west  of  the  eastern pathway  about  50  paces away from  the  school  where  the nomination  papers  had to be filed.  Bhupendra  Singh,  the first accused was also a candidate for the office of Pradhan of  Gaon Sabha. He had also come for filing  the  nomination along  with  the other accused who were his  supporters.  On seeing  the  party of the deceased  arrive  Bhupendra  Singh enquired  Ram  Sewak  (PW2), whether he  had  come  to  file nomination paper against him. At that time Gajenddra  Singh, deceased intervened and challengingly told the first accused that he should ask him. This resulted in verbal  altercation between  the  first  accused and  the  deceased.  The  first accused then fired a shot with his rifle at the deceased and on  receiving  the bullet injury the deceased  fell  on  the ground.  The  prosecution  case further was  the  six  other accused  had also guns and they also fired at the  deceased.

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The  other accused who were armed with lathis  and  ballams, physically  assaulted the deceased. Thereafter  the  accused dragged  the  deceased to a small mound on the west  of  the scene  of  occurence and then loaded the dead  body  on  the trolley  of a tractor belonging to the first accused,  which had been used by the accused to reach at the scene and which driven by the first accused and the deceased was taken away. All  the  accused got into the trolley and  shouting  loudly that  they are going to burn the body and throw its  remains in the water drove the tractor towards the north. PWs 1 to 6 are  stated  to  be  eye  witnesses  to  this  part  of  the occurrence.  PWs  7,8,9 and 10 are stated to have  seen  the first accused driving the tractor to                                                        860 which   the  trolley  was  attached  and  the  three   other appellants  and 15 or 16 more people sitting on the  tractor and going towards a revolt shouting that they are taking the body of Gajendra Singh and that the will be burnt and thrown into  the  river. PW 10 Lalji also claimed that he  saw  the burning of the dead body near the river and the ashes thrown in river suita. Tarun Kumar PW1 son of the deceased went  to his  village Bibiapur, wrote the report Ex. Ka. 1  and  gave the  first  information  report  before  the  Station  House Officer Thana Mira which is about 12 miles from the scene of occurrence  at 3.30 PM on that day. Rama Nand Tewari  (PW17) took up the investigation reached the scene of occurrence at 5.30  P.M.  and seized some blood stained earth at  a  point market  ‘A’  in  the plan and also some  ashes,  besides  55 pellets  wads,  teeth  and some buttons on  the  spot  under Mahazars  which were attested by Rajendra Prasad  (PW4)  and Durga  Prasad (PW5) and another. On the 27th  of the  April, 1972 he interrogated Asharfi (PW7), Chhotanney (PW8),  Reoti Prasad  (PW9)  and Lalji (PW10) and accompanied by  them  he reached  the  jungle at the outskirts of  village  Daulatpur where  he found burnt leaves near a Shisham tree. He  seized burnt earth, ashes and burnt pieces  of bones under recovery memo  in  the presence of Rajendra Prasad  (PW4)  and  Durga Prasad  (PW5). On the 14th of May, 1972 in Village Mudia  he interrogated  Ram  Autar (PW3), Ram Sewak  (PW2),  Gaua  Din (PW6) and others submitted the charge sheet on 4th December, 1972.      As   already  stated  the  charge  against  the   first appellant  was one under section 302 read with section  149, IPC  and the Trial Court had acquitted him of that  offence. The  High Court on appeal by the State while  setting  aside the  acquittal of the first appellant convicted him for  the substantive  offence  under section 302, IPC on  the  ground that  the  he  was the principal  offender;  that  his  shot resulted  in death of Gajendra Singh and the  other  accused persons to whom no specific part has been brought home  were entitled  to benefit of doubt. The High Court also  believed the  prosecution  case relating to the disposal of  body  by taking  it away from the scene of occurrence and burning  it and throwing the ashes in the river but held that PWs  7,8,9 and  10 speak of the appellants alone by name as  among  the persons  in the tractor and trolley and the names of  others were  not  mentioned  by them and therefore  set  aside  the acquittal in respect of the offence under section 201 of IPC in so far as the appellants are concerned and convicted them and  sentenced  them  a  term of  seven  years  of  rigorous imprisonment.  The  four  appellants have  filed  the  above criminal appeal against this conviction and sentence of  the High Court.                                                        861      There  could  be no doubt that an  occurrence  of  type

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spoken  to by the prosecution witnesses had taken  place  at the Mela Maidan, Padaria Tula, 25.4.1972 was the date  fixed for filing nomination papers for the election of Pradhan  of the Gaon Sabha comprising Padaria Tula. The place where  the nomination papers had to be filed is the school premises  at the  place.  Ramesh  Chander Mishra (PW15)  the  Sub  Deputy Inspector  of  Schools had been authorised  to  receive  the nomination  papers. He was assisted by the Gram Sewak  Verma (CW1)  and  Rajendra Prakash (PW14) among others.  They  had stated  in their evidence that they were inside  the  school premises  and that around 10.30 A. M. they heard  gun  shots near  the school. PW2 Ram Sewak as also the first  appellant Bhupendra  Singh  had come there to  file  their  nomination papers  along  with other party  people.  The  investigating officer  had  made  certain  recoveries from  the  scene  of occurrence  along with bullock-cart and the two bullocks  in which the deceased and his party had come to the sense.  The evidence of PWs 1 to 6 are also uniform that the  occurrence had  taken  place at that place. We  can  therefore,  safely assume that the  incident took place at the Mela Maidan near the  compound of School-cum- temple in Village Padaria  Tula as stated by the prosecution. It is true that the pieces  of burnt  bones  recovered from the place where  the  body  was stated to have been burnt were set to the Serologist but  he was  unable to tender any opinion regarding origin, sex  and age. Though, it was contended by the learned counsel for the appellants that the prosecution had not established that any such  occurrence  had  taken place  that  morning  and  that Gajendra  Singh had fallen the victim in such  occurence  we are  unable  to  agree with the  learned  counsel  that  the occurrence  had not taken place at all that  Gajendra  Singh had  not been proved to have been killed. There could be  no doubt  that  corpus  delieti could  be  established  by  the prosecution  through  direct evidence and that is  what  the prosecution  had done in this case in the  circumstances  we are  of the view that the prosecution had  established  that there  was  an occurence at 10.30 A.M. on 25.4.1972  at  the place  mentioned by the prosecution in which Gajendra  Singh had fallen a victim and died.      Mr.  Lalit, learned counsel for the appellants took  us through   the  entire  evidence  and  contended   that   the prosecution had not established the complicity of the  first appellant  for murder and the appellants for the offence  of screening the evidence punishable under section 201, IPC.      In  the FIR, Tarun Kumar (PW1) had mentioned the  names of the four appellants and the presence of PWs 2 to 6 at the scene of                                                        862 occurence. All these eye witnesses had uniformly stated that they  saw only Bhupendra Singh firing at the deceased  which brought  him  down  to the ground and  stated  further  that immediately  on  hearing  the first shot they  ran  and  hid themselves  behind  the dilapidated wall of the  temple  and they had heard only 6 and 7 shots thereafter. They have  not attributed  over  acts  to any of  the  accused  other  than Bhupendra  Singh,  the  first  appellant.  It  is  in  those circumstances, the High Court confirmed the acquittal of all the accused other then Bhupendra Singh of the offence  under section  302  read with section 149, IPC. PWs 3  to  6  have stated  in their evidence that during the course  of  verbal altercation between the first accused and the deceased,  the first  accused shot Gajendra Singh with rifle on  the  fore- head.  On the basis of that shooting with the rifle  on  the fore-head   the  first  appellant  was  convicted  for   the substantial  offence  of murder under section  392  IPC  and

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sentenced to life imprisonment.      In the FIR though Tarun Kumar, PW1 has stated that  the first appellant fired at his father first, he had not stated that  the bullet hit fore-head bringing down its  father  to the ground. It is stated in the FIR:           "Bhupender then, first of all, fired on my father;           along  with, all other started firing.  My  father           then fell down as a result of attack by fire-arms;           then  others  with  lathis  and  ballams   started           assaulting.  From there, I noticed that  Bhupender           Singh and his companions carried the dead body  of           my  father,  along with his gun, in  his  tractor-           trolley towards Karmapura."      Thus though an overt act had been assigned to the first appellant in the FIR it had not been stated where the bullet shot  hit  the  deceased.  It is true  that  in  their  oral evidence PWs 3 to 6 have assigned the first shooting to  the first  appellant  but their evidence relating  to  the  shot hitting at the fore-head could not be accepted for more than one  reason.  As  already stated, PW1,  first  went  to  his village  Bibiapur  from the scene of occurrence  at  Padaria Tula,  prepared the FIR in his house and then delivered  the same  at 3.30 P.M. at the Police Station. In spite of  time- gap  and  his  being  with  deceased  at  the  time  of  the occurrence he had not specifically stated that the first aim of  the first appellant hit the fore-head of  the  deceased. the  names  of  PWs  2 to 6 are given  in  the  FIR  itself. However,  PWs  3 and 6 were examined  by  the  Investigating Officer  only  on  14th  of  May  and  no  explanation   was forthcoming                                                        863 as to why they were not examined earlier. PWs1 and 2 did not say in their oral evidence that the shot aimed by the  first appellant hit the fore-head of the deceased. PWs 3,4,5 and 6 gave the evidence to the effect that the first rifle shot of the  appellant hit the deceased on his fore-head.  But  this part of the statement we are unable to believe because  PW1, Tarun  Kumar had not confirmed this either in the FIR or  in his evidence as PW1. This was also not stated by PW2 in  his evidence  or during investigation as seen from the  evidence of PW17 the investigation officer. PWs 3 and 6 were examined by  PW17  only after 20 days i.e. on the 14th of  May,  1972 though  their  names  were  mentioned in  the  FIR.  In  the circumstances the contention of the learned counsel for  the appellants  that  the possibility of an improvement  in  the case  to implicate A-1 for a substantive offence  cannot  be ruled out. While we could accept the case of the prosecution trying  to establish corpus delicti through the evidence  of PWs 1 to 6 we could not accept the evidence in so far as  it not  known  where  the bullet hit and  whether  that  injury caused  by the same and that injury is sufficient  to  cause death,  the offence under section 302 IPC could not be  said to  have been made out. In the circumstances, therefore,  we are  unable  to  agree with the High Court  that  the  first appellant  is  guilty of offence under section  302  IPC  of causing the death of Gajendra Singh. However, we are of  the view  that  while the first appellant shot at  the  deceased there could be no doubt that either he had the intention  to kill him or at least he had the knowledge that the act could cause the death.      All the witnesses also say that the shot by A-1 brought down the deceased to the ground. There could, therefore,  be no doubt that the shot had caused some hurt or injury  could have caused the death. In the circumstances we consider that the offence would come under the second limb or second  part

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of section 307, IPC. Though imprisonment for life also could be awarded as sentence for such an offence on the facts  and circumstances  we  impose a sentence of  10  years  rigorous imprisonment.  Accordingly  we alter  the  conviction  under section  302, IPC as one under section 307 IPC and  sentence him to term of 10 years rigorous imprisonment.      So  far  as  the  offence  under  section  201  IPC  is concerned  the                                                        864 prosecution  relied upon the evidence of PWs 7,8,9  and  10. The evidence of PWs 7,8 and 9 only go to show that they  had seen  15 to 20 people sitting in the trolley of the  tractor driven by the first accused. They have referred to the names of  the  appellants  among the 20 people  who  were  in  the trolley. However, none of them had stated that they had seen the body of Gajendra Singh alive or dead in the trolley. The prosecution  tried  to  establish  that  the  accused   were carrying  body  of Gajendra Singh in the  trolley  from  the statement  of PW7 who said the Chet Ram one of  the  persons who  was travelling in the trolley along with other and  who is now dead was saying or shouting that:           "Gajender  Singh  had  been killed  and  he  would           roasted and eaten and thrown in the river."      And the statement of PW3 that:           "The  people  sitting  the  trolley  were  talking           amongst  themselves and uttering the words  ‘today           we have killed and brought a lion’"      But PWs 7 and 8 had not given any such version to  PW17 in  their  statements  during  investigation.  PW  9  turned hostile  and his evidence is also worth nothing. PW  10  had stated that Chet Ram said:           "We have killed Gajendra Singh and brought him  on           his tractor why you have come here". and then he ran about 250 steps towards the  east and  stood there  but the version given in the statement before  PW  17 was  different. This evidence can be relied on only for  the purpose  of  showing  that  about  15  or  20  people   were travelling  in the trolley of a tractor driven by the  first accursed  which was going towards the river.  This  evidence does  not bring home the offence of screening the  evidence. Of  course  PW 10 said that the body was burnt  with  wooden pieces and grass after it was all burnt Chet Ram, who is now dead,  collected the whole residual ashes and threw them  in the Sutia rivulet. he mentioned the name of Chet Ram and  no other  name. Further though he sated to be neighbour of  Ram Sewak  PW 2 and Ram Sewak and himself used to meet  everyday he  did not tell PW 2 about the burning of the body  of  the appellants. This witness also belongs to the Ahir  community which is the community of the deceased Gajendra Singh  also. It appears that only the bones stated to have been recovered were  sent  for  chemical analysis and  the  report  of  the serologist was that it was not possible to                                                        865 give  any  opinion regarding the origin, sex  and  age.  The report  had  not  even stated that they  were  human  bones. Though PW 10 had stated that there were with him two  others at  the  time  and PW 17 had taken PW 10 and  the  said  two others  also to the place where the body was stated to  have been  burnt,  they had not been examined. We have  read  the evidence carefully and the evidence also does not impress us that he is telling the truth.      In  the  result  we set aside  the  conviction  of  the appellants  under  section 201, IPC. The conviction  of  the first appellant is modified into one under section 307,  IPC and  we sentence him to 10 years rigorous imprisonment.  The

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bail bonds of appellants 2,3 and 4 are cancelled. The  first appellant is directed to surrender. R.N.J.                             Appeal partly allowed.                                                        866