REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 332-333 OF 2002

State of U.P. ..Appellant

Versus

Gajadhar Singh and Ors.   ..Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge  in  the  present  appeals  is  to  the  judgment  of  a  Division

Bench  of  the  Allahabad  High  Court  allowing  the  appeal  filed  by  the

respondents.  The  respondents  were  found  guilty  of  offence  punishable

under Sections 302, 307 read with Section 149 of the Indian Penal Code,

1860 (in short the ‘IPC’) by the trial Court. It is to be noted that two appeals

were  filed  before  the  High  Court  by  the  convicted  accused  persons.

Criminal  Appeal  No.2007/1997  was  preferred  by  Gajadhar  Singh

(respondent  No.1)  and  Criminal  Appeal  No.1963/1997  was  preferred  by

Janardan  Singh,  Sarvajit  Singh,  Suresh  Singh,  Umesh  Singh,  Mritunjai

Singh and Haribhan Chaudhury.  The High Court dismissed the appeal of

respondent No.1-Gajadhar but set aside the conviction so far as appellants

in the other appeal before it. However, so far as Gajadhar is concerned his

conviction in terms of Section 307 read with Section 149 IPC was altered

and he was convicted under Section 323 read with Section 149 IPC. So far

as other appellants are concerned their convictions under Section 302 and

307 both read with Section 149 IPC were set aside and instead they were

convicted under Section 323 read with Section 149 IPC.  The conviction

under Section 147 IPC was affirmed.  

2. Background facts in a nutshell are as follows:

The accused Gajadhar Singh and Umesh Singh are real brothers being

sons of Ram Vichar Singh while Sarvajit Singh accused is son of Janardan

Singh.  Janardan  Singh  is  the  first  cousin  of  Ram Vichar  Singh  as  their

fathers were real brothers.  The remaining two accused, namely, Mritunjai

Singh and Haribhan Chaudhury belonged to  their  group.  Janardan Singh

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was  earlier  the  Pradhan of  Gaon Sabha Bankara  Saiyed Bukhara.  In  the

election scheduled to be held in April, 1995, the office of Pradhan of the

said Gaon Sabha was reserved for a person belonging to backward caste.

Janardan Singh then set  up  Haribhan  Yadav (Chaudhary) while  Chandra

Bhan Singh (hereinafter referred to as ‘deceased’) set up Ramakant Yadav

as  candidate  for  the  office  of  Pradhan.  Janardan  Singh  himself  filed  his

nomination papers for the membership of Block Development Committee

while deceased Chandra Bhan Singh proposed the name of Shri Ram Bhar

for the said office. The election for the office of Pradhan commenced in the

morning of 7.4.1995 and the polling station was in the primary school of the

village.  Chandra  Bhan  Singh  was  also  the  polling  agent  of  Ramakant

Yadav.  Shortly  after  commencement  of  the  polling,  Janardan  Singh  and

some  persons  of  his  group  started  creating  disturbance  and  resorted  to

rowdism. Chandra Bhan Singh asked them not to create any disturbance and

to allow the poll to be conducted in a peaceful manner. Janardan Singh then

exhorted  his  companions  that  he  should  be  beaten.  Thereafter  Janardan

Singh and Sarvajit Singh each caught one hand of Chandra Bhan Singh and

Gajadhar Singh fired from a country made pistol upon him and the shot him

upon his chest. Shivji Yadav, Deedan Singh and Keshav rushed forward to

save him but the accused Suresh Singh Umesh Singh, Mritunjai Singh and

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Haribhan assaulted them with lathis.  Chandra Bhan Singh fell  clown and

died  on  the  spot.  The  injured  Keshav  Singh  Shivji  and  Deedan  Singh

thereafter went to the PHC Siyar where medical aid was given to them and

they  were  also  medically  examined.  Keshav  Singh  got  the  FIR  of  the

incident  scribed by Raghav Singh and lodged the same at  12.40  p.m. at

Police Station,  Ubhav which is at a distance of 4 miles from the place of

occurrence. Udai Bhan Singh (PW-6), clerk-constable, registered a case in

the general diary on the basis of the FIR lodged by Keshav Singh. Subhash

Chandra  Sonkar  (CW-2),  SI  Commended  investigation  of  the  case  and

immediately proceeded for the spot. The dead body of Chandra Bhan Singh

was  lying  in  front  of  the  building  of  primary school  in  village  Bankara

Saiyed  Bukhara.  He  found  blood  on  the  spot  and  collected  plain  and

bloodstained  earth  from there  and  prepared  its  recovery  memo.  He  also

prepared a site-plan with the assistance of Keshav Singh and his statement

under section 161 of the Code of Criminal Procedure, 1973 (in short  the

‘Code’) was also recorded by him. After completing other formalities, the

body was sealed and was sent for Post-mortem examination. Subsequently,

the investigation  was  handed over  to  T.P.  Nanda (P.W.7),  who recorded

statements of some others witnesses.  

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After  completion  of  investigation  charge  sheet  was  filed.  As  the

accused persons pleaded innocence, trial was held.  

Prosecution  examined  seven  witnesses  including  the  three  eye

witnesses.  The accused examined one witness  in support  of their  plea of

innocence.  As per the directions of the Court three persons were examined

as court  witnesses.   The learned Sessions Judge believed the case of the

prosecution and convicted and sentenced the accused as noted above.  

Before the High Court in the appeals, the primary stand was that the

prosecution evidence was not reliable. The High Court did not accept the

stand. The High Court held that it was established beyond any shadow of

doubt that Gajadhar had fired upon the deceased Chandra Bhan at 7.45 a.m.

on 7.4.1995 in front of the building of the primary school which resulted in

his  death.  So far as  other  accused persons are concerned the High Court

noticed that the evidence was insufficient. The High Court, therefore, was

not inclined to believe that part of the prosecution case wherein the role of

catching hands of the deceased was assigned to the accused Janardan and

Sarvajit Singh. So far as remaining four accused persons are concerned the

High  Court  noted  that  they  allegedly  did  not  cause  any  injury  to  the

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deceased. They were armed with lathis but they did not assault the deceased.

They  were  alleged  to  have  caused  injuries  to  three  persons,  but  all  the

injuries caused by them were found to be simple in nature. In that view of

the matter the High Court found that the common object of the assembly

was not to commit the murder of the deceased and it was the solitary act of

Gajadhar  Singh  which  resulted  in  his  death.  So  far  as  conviction  under

Section 307 read with Section 149 IPC is concerned after referring to the

nature of injuries sustained by three injured it  was held that  Section 307

read  with  Section  149  IPC  had  no  application  and  instead  appropriate

conviction  would  be  under  Section  323  read  with  Section  149  IPC.

Accordingly, it altered the conviction.  

3. In support of the appeals, learned counsel for the appellant submitted

that  the  accused  persons  had caused  injuries.  The  evidence  of  PWs had

clearly established the accusations and, therefore, the High Court should not

have altered the conviction as was done by the trial Court.  

4. Learned counsel for the respondents on the other hand supported the

judgment.  

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5. It is to be noted that conviction of Gajadhar for offence punishable

under Section 302 read with Section 149 IPC has  been affirmed and the

conviction for offence in terms of Section 307 read with Section 149 IPC

has been altered. The appeal  filed by the State of U.P. so far as accused

Gajadhar-respondent  No.1  is  concerned  appears  to  be  without  any

substance.  So far as other accused persons are concerned, the High Court

has in great detail referred to the evidence and directed acquittal of the other

accused persons.  

6. The  evidence  on  record  clearly  established  that  the  pistol  was

concealed and was not visible to anyone.  The High Court rightly noted that

the evidence adduced by the prosecution did not establish that remaining

accused persons had any knowledge that Gajadhar was carrying a country

made pistol or that he would go to shoot the deceased. The testimony of

PW-2 shows that Janardan was initially asking the voters not to caste vote

for Ramakant Yadav but to vote for  his candidate and subsequently he had

resorted to rowdism  in order to disturb the voting process so that Ramakant

Yadav may not win the election and that  simple injuries  were caused by

blunt weapon to three persons. Therefore, as rightly observed by the High

Court the common object of the assembly was not to commit the murder of

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Chandra Bhan Singh and it was the solitary act of Gajadhar. PW-2 had also

stated that he had not seen the lathis or country made pistol in the hands of

any of the accused persons at the time when Janardan was disturbing the

voters and was asking them not to caste vote in favour of Ramakant Yadav.

PW-4 i.e. Constable on duty had also stated that there was fight between the

parties regarding disturbance in voting.   

7. In  view  of  the  aforesaid  factual  position,  we  are  not  inclined  to

interfere in these appeals which are accordingly dismissed.        

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, February 11, 2009

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