http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: STATE  OF U.P.

       Vs.

RESPONDENT: KAPIL DEO AND ANOTHER

DATE OF JUDGMENT21/08/1991

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. KULDIP SINGH (J)

CITATION:  1991 AIR 2257            1991 SCR  (3) 692  1991 SCC  Supl.  (2) 170 JT 1991 (3)   482  1991 SCALE  (2)384

ACT:     Criminal Law: Indian Penal Code, 1960--Sections 302, 302 read  with  34  and 201 read with 34-Charge  of  murder  and causing   disappearance  of  evidence   thereof--Prosecution evidence as to offence of murder rejected--Accused acquitted of charge of murder--Whether could be convicted for  offence of causing disappearance of evidence of murder--Acquittal of one of the accused--Effect on co-accused.

HEADNOTE:     The  respondents in the two appeals were  charged  under Section  302, Section 302 read with Section 34  and  Section 201 read with Section 34 IPC for the murder of their  domes- tic help. and for causing disappearance of the commission of offence.     The  trial court acquitted all the four accused  of  the offence  under  Section  201 read with Section  34  IPC  but convicted one of them under Section 302 and the other  three for  the nffence under Section 302 read with Section 34  and sentenced  all of them to death. The High Court  upheld  the conviction of the accused under Section 302, but reduced his sentence to life imprisonment. It acquitted the other  three accused  of the offence under Section 302 read with  Section 34 IPC.     The  main accused, who was convicted under  Section  302 IPC,  appealed  to this Court against  his  conviction.  The State  also  flied an appeal before this Court  against  the acquittal  of’  two of the three accused for  offence  under Section 302 read with Section 34 IPC. Since the  respondents in  the State’s appeal could not be served by the  time  the appeals  came up for disposal’, this Court heard the  appeal of  the lone accused and taking into consideration the  evi- dence  which had bearing on the accused’s appeal  only,  al- lowed his appeal.     Subsequently,  the  State flied an  appeal  before  this Court against the trial court’s acquittal of the accused for the offence under Sec. 201 read with section 34 IPC. Dismissing the appeals, this Court, 693     HELD: 1. I The prosecution case collapsed so far as  one of  the accused, who was assigned the offensive part of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

crime  of murder, is concerned, and he stands. acquitted  of the  charge.  of murder. It is he who was seen  cutting  the throat  of the deceased with a big knife, and escaping  from the scene of the occurrence, carrying a blood-stained  knife in his hand, and was sought to be apprehended by the eyewit- nesses and others collected there. When the evidence against him, occular as well as circumstantial, has cautiously  been weighed  by  this Court resulting in his  acquittal,  it  is difficult  to  convict the said accused  for  offence  under section 201 read with 34 IPC. [697D-F]     Duvvur  Dasratharammareddy v. State of  Andhra  Pradesh. [1971] 3 SCC 247, relied on.                 ’     1.2 As regards the other accused, on careful  considera- tion of the evidence and other material on record, a differ- ent view than the one taken by the Sessions Court cannot  he taken.  The trial court when grappling with the matter  took note  of the evidence Of the witnesses of recovery,  namely, P.Ws .5 and 11, wherefrom it was clear that a dead body  was found inside a bag kept in the trunk. That by itself was  of no consequence and at best gravely suspicious.. Its  finding was that a dead body in a bag put inside a-trunk was  recov- ered from a room of the house and further the part played by the  accused in the placing of the dead body in  that  trunk was evidently not proved. Their individual statement to P.W. 11  which alone, If at all admissible, does not  reveal  any disappearance  of evidence so as to screen the  offender  of murder. This state of evidence is insufficient to prove that two  of the respondents to have placed the dead body in  the trunk. Having regard to the evidence of P.Ws. 5 and 11 there is no reason to differ from the views expressed by the trial court  and which was a possible view. As regards the  fourth accused there is no evidence against her. [398F-H, 699A-D]      Vidya Sagar v. State of U.P., AIR 1977 SC 1116 at pages 11181119, referred to.     2. ’One of the circumstances which weighed in favour  of the  main accused, who was acquitted was that be  alone  was not  in  the house to he solely responsible for  the  murder when  committed and ’at that time  besides him therein  were said to be the two respondents. What has been spelled out in favour  of  that accused can with equal force apply  to  the case of the two respondents. If the so-called opportunity to likewise  commit  the crime was. ’available to the  two  re- spondents and not a circumstance to hold the accused who was acquitted, as one of the 694 inmates  of the house guilty, it can conversely be  said  in the  same  manner about the guilt of  the  two  respondents. Their being available in the house per se was not enough  to hold  them  guilty for the .of fence of  tie  murder.  Thus, there is no occassion to convict the two respondents for the offence  of  murder in view of the verdict of  acquittal  in favour  of the other accused. There was hardly any  evidence to connect the three  accused to the murder of the deceased, especially when the eye- witnesses account given by PWs 1 to 3 was not very reliable. Besides, from the circumstance that the  three accused were inside the house at flu time of  the murder,  it  could  not be inferred that  they  were  acces- sories  to  the crime before the occurrence took  place  nor could  it be inferred that the murder was committed in  fur- therance  of  the common intention of all.  In  the  circum- stances, the High Court was right in giving benefit of doubt to   the   three  accused  and  acquitting   them   of   the chaege of murder and accordingly thee respondents’ acquittal of the two respondents is maintained. [697H,698 A-E]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 579 of 1976 From the Judgement and order dated6.4.1971 of the Allahabad high Court in Criminal Appele No. 2393 of 1970 and  Referred No. 174 of 1970. .. WITH CRIMINAL APPEAL No. 99 of 1987.     Manoj  Swarup, Ms. Lalita Kohli, Ms. P.  Chaudhary.  and A.S. Pundir (N.P) for the Appellant. G. Prakash for the Respondents. The Judgment of the Court was delivered by            PUNCHHI J. These two Criminal Appeals have common roots  and are being disposed of together.-They have  arisen in the following circumstances: Vinod Kumar. aged  about 12 years  was a poor boy of Village Lar, ’District Deoria in the state of Uttar  Pradesh. He  is the  victim in the instant crime. On or about  July  1,1968, the said Vinod Kumar was employed by Kapil Deo accused as  a domestic help in his house at Village Lar Kapil Deo his wife Smt.  Sheo  Kumari,  his son vidya Sagar,  and  his  brother Rampati  were living togther in that house at  village  Lar. All the four are the accused involved herein. at about  4.00 p.m. on July 16, 1968 Vinod Kumar deceased and Vidya sagar 695 accused were playing with some other boys near the house  of Kapil  Deo Kapil ,Deo and Ramapati on arrival there  scolded the boys for playing there and took Vinod Kumar, servant and Vidya  Sagar, accused in the house asking the other boys  to scatter  away.  Those  boys included Mohan  Singh,  P.W.  1, Hridyanand,  P.W.  2 and Akhilanand, P.W. 3.  Despite  there being  asked to go away, still the boys resumed  their  play after  a while. They then heard the cry of Vinod  Kumar  and by  climbing a grilled window (jangla) of the house  of  the accused, they could see the crime being committed in another room of the house which had a door ajar making vision possi- ble.  Their  version was that they had seen  Kapil  Deo  and Ramapati  holding Vinod Kumar against the wall of  the  room and Vidya Sagar cutting the throat of Vinod Kumar with a big knife,  The  eye  witnesses raised an  alarm.  Vidya  Sagar, accused thereafter came out from the house while wearing  an underwear with a blood-stained knife in his hand and  there- after took to his heals. Smt. Sheo Kumari accused closed the doors  of  the  room and the window. In  the  meantime  some people  already assembled outside the house tried to  appre- hend Vidya Sagar accused but having failed to do so, one  of them  Mohan  Singh, P.W. 1 went to Police Station,  Lar  and lodged  the  First Information Report. After  the  necessary investigation  and collection of material, the four  accused were committed for trial to the court of Session at  Deoria, Uttar Pradesh.      At  the trial, all the four accused were charged  under section  302, section 302 read with section 34,  I.P.C.  and section  201.  read with section 34, I.P.C.  The  cause  for charge  under section 201  read with section 34  I.P.C.  was that  on  interrogation  made from Kapil  Deo  and  Ramapati accused they pointed out a trunk, in which the dead body  of Vinod Kumar was found contained in a gunny bag, in a room of their  house.  The trunk contained as well  a  blood-stained Pyjama of Vidya Sagar.      The  Trial  Judge vide his judgment dated  October  27, 1970  convicted  Vidya Sagar, accused for an  offence  under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

section  302  I.P.C. and the remaining three  accused  under section  302 read with section 34 I.P.C. sentencing  all  of them  to death. He, however, acquitted all the four  accused of the offence under section 201 read with section 34 I.P.C.      On reference to the High Court for confirmation of  the death sentence as well as on appeal by all the accused,  the High court of Allahabad on April 6, 1971 upheld thee convic- tion  at vidya Sagar, accused for offence under section  302 I.P.C. reducing his sentence to 696 imprisonment  for  life. The remaining  three  accused  were acquitted of the charge under section 302 ’read with section 34 I.P.C.     The  matter  was brought to this Court by  Vidya  Sagar, accused  in  Criminal  Appeal No. 236 of  1971  against  the aforesaid  judgment  of the High Court. The State  of  Uttar Pradesh  as  well  filed Criminal Appeal  No.  579  of  1976 against  Kapil Deo and Ramapati, accused leaving aside  Smt. Sheo  Kumari, accused. That appeal on admission was  ordered to be heard with Criminal Appeal No. :236 of 1971  preferred by Vidya Sagar. Since respondents in Criminal Apeal No.  579 of  1976, being Kapil Deo and Ramapati, could not be  served by  the time when both the matters came up for  disposal  on 2.2-2-1977 before a bench of this Court, the appeal of Vidya Sagar  alone was heard and was allowed. The  evidence  which had bearing in the appeal of Vidya Sagar, accused alone  was scrutinised  and  opined upon. The High Court  On  its  part placing  no  reliance  on the eyewitnesses  had  upheld  the conviction  of Vidya Sagar, accused because of four  circum- stances  enumerated in judgment reported as Vidya  Sagar  v. State of U.P,, AIR 1977 SC 1116 at pages 1118-1119 and  this court, one by One, demolished all the circumstances conclud- ing as follows:               "It would thus appear- that the four pieces of               circumstantial evidence on which reliance  has               been  placed by the High Court for.  upholding               the conviction of appellant Vidya Sagar, could               not  be said to prove beyond reasonable  doubt               that  he committed the murder of  Vinod  Kumar               Those  circumstances do not answer  the  well-               established  test that where evidence is  cir-               cumstantial,  it must be consistent  with  the               sole hypothesis that the accused is guilty  of               the  crime  charged.  Moreover,  as  has  been               pointed  out, the High Court did  not  examine               the other evidence and circumstances  referred               to  above which had a bearing on the guilt  of               the appellant." We  would not like to burden this judgment with the  details of  those four circumstances since resort can be had to  the reported judgment. The end result was the acquittal of Vidya Sagar  accused. While disposing of the case, the Bench  took care  to observe that nothing in the said judgment be  taken to  have any bearing on the appeal of the State against  the acquittal of accused Kapil Deo and Ramapati. The bench  also observed  that  it  may, perhaps, require  in  that  appeal, examination  of the question whether by reason of  the  con- cealment  of  the dead body in the trunk those  two  persons could  or  could not be convicted under section  201  I.P.C. even  if  they  were not held guilty of  the  offence  under section 302 I.P.C. 697     Kapil Deo and Ramapati, accused-respondents in  Criminal Appeal  No.  579 of 1976 were served after a  long  laps  of time.  On  January 29, 1986, a bench of  this  Court  became

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

seisen  of  the matter. It perhaps was made aware  that  the acquittal  of  the accused-respondents by the  Trial  Judge, under  section 201 read with section 34 I.P.C. had not  been challenged by the State of U.P.. by filing an appeal against the acquittal before the High Court, which fact had specifi- cally  been taken note of by the High Court in its  judgment dated April 6, 1971. For that reason, the bench granted time to  the  State  of U.P. for filing  special  leave  petition against  the judgment of the learned Sessions Judge  acquit- ting  all the four accused-respondents of the  charge  under section 201 read with section 34 I.P.C. ordering at the same time that the said special leave petition when filed  should be  heard alongwith Criminal Appeal No. 579 of 1976. On  the filing  of such application leave was granted  and  Criminal Appeal’ No. 99 of 1977 as its product has been placed before us for disposal alongwith Criminal Appeal No. 579 of 1976.     We  have heard learned counsel for the parties and  have perused  the evidence and material on the record.  The  fact staring at us is that the prosecution case collapsed so  far as Vidya Sagar, accused iS concerned and he stands acquitted of  the charge of murder. It is to be borne in mind that  he prominently was assigned the offensive part of the crime  of murder.  It  is he who was seen cutting the  throat  of  the deceased  with a big knife. It is he who was  seen  escaping from  the scene of the occurrence carrying  a  blood-stained knife in his hand. It is he who was sought to be apprehended by  the eye-witnesses and others collected there.  When  the evidence against him, occular as well as circumstantial, has cautiously  been  weighed  by this Court  resulting  in  his acquittal, we find it difficult to convict the said  accused for  offence under section 201 read with section  34  I.P.C. This  COurt  though slightly in different  circumstances  in Duvvur  Dasratharammareddy v. State of Andhra Pradesh,  [197 1] 3 SCC 247, observed as follows:                         "  If the evidence relating  to  the               offence  of murder and disappearance  of  evi-               dence is the same and the case of the prosecu-               tion  regarding the Offence of murder  is  not               accepted,  it follows that the accused  cannot               be  convicted’ for the offence  under  Section               201, I.P.C." One  of the circumstances which weighed in favour  of  Vidya Sagar. accused was that he alone was not in the house to  be solely responsible for the murder when committed and at that time besides him therein 698 were  said to be Kapil Deo and Ramapati, accused.  What  has been  spelled  out in favour of Vidya Sagar can  with  equal force apply to the case of Kapil Deo and Ramapati,  accused. If  the so called opportunity to like-wise commit the  crime was  available to Kapil Deo and Ramapati and not  a  circum- stance  to  hold Vidya Sagar as one of the  inmates  of  the house  guilty, it can conversely be said in the same  manner about the guilt of Kapil Deo and Ramapati.Their being avail- able in the house per se was not enough to hold them  guilty for  the  offence of murder. Thus there is  no  occasion  to convict  Kapil  Deo  and  Ramapati,  accused-respondents  in Criminal Appeal No. 579 of 1976 for the offence of murder in view  of the verdict of acquittal in favour of Vidya  Sagar. The High Court itself had observed that there was hardly any evidence to connect Kapil Deo, Ramapati & Smt. Sheo  Kumari, accused  with the murder of Vinod Kumar especially when  the eye  witnesses  account given by P.Ws. 1 to 3 was  not  very reliable.  And further that from the circumstance  that  the aforesaid three accused were inside the house at the time of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

the murder it could not be inferred that they were  accesso- ries to the crime before the occurrence took place nor could it be inferred that the murder was committed in  furtherance of  the common intention of all. On this basis, these  three accused were given the benefit of doubt and acquitted of the charge of murder and the view of the High Court, appears  to us  to be correct. The acquittal of Kapil Deo and  Ramapati, respondents in Criminal Appeal No. 579 of 1976 thus must  be and is hereby maintained, dismissing the Criminal Appeal No. 579 of 1976.     With  regard  to Criminal Appeal-No. 99 of 1987,  it  is significant to notice that the Government had not filed  any appeal against the order of acquittal of the accused of  the charge  under section 201 read with section 34  I.P.C.  even though  room had been kept in these proceedings  to  examine the  question whether the accused could be  convicted  under section  201  read with section 34 I.P.C. Still  on  careful consideration  of the evidence and other material on  record we  are not pursuaded to take a different view than the  one taken  by the Court of Session Section 201  I.P.C.  provides that  whoever, knowing or having reason to believe  that  an offence  has  been  committed, causes any  evidence  of  the commission of that offence to disappear, with the  intention of  screening  the offender from legal punishment,  or  with that intention gives any information respecting the  offence which he knows or believes to he false, shall suffer impris- onments of the kind, mentioned in the three sub-portions  of the  provision,  in the circumstances suggested.  The  Trial Judge  when graplling with the matter took note of the  evi- dence of the witnesses of recovery, namely, Chander 699 Shekhar, P.W. 5 and Sub-Inspector, Markandey Singh, P.W.  11 wherefrom  it was clear that a dead body was found inside  a bag kept in the trunk. That by itself was of no  consequence and at best gravely suspicious. Its finding was that a  dead body  in a bag put inside a trunk was recovered from a  room of  the house and further the part played by the accused  in the placing of the dead body in that trunk was evidently not proved.  Their  individual statement to  P.W.  11  Markandey Singh  "1  have kept the dead body, could  give  it",  which alone,  if at all admissible, but not holding so,  does  not reveal  any  disappearance of evidence so as to  screen  the offender  of murder. This state of evidence is  insufficient to  prove the accused Kapil Deo and Ramapati to have  placed the dead body in the trunk. We see no reason to.differ  from the  views  expressed by the Trial Judge, and  which  was  a possible  view,  having regard to the  evidence  of  Chander Shekhar  and  Markandey Singh, P.Ws. Besides  the  ratio  in Duvvur Dasratharamrnareddy’s case (supra) too comes in  ’aid of  the  accused-respondents  so as to  merit  dismissal  of Criminal Appeal No. 99 of 1987 as relating to them. There is no  evidence against Sheo Kumari accused of any  kind  worth discussing.     For  the foregoing reasons, we dismiss both the  appeals Nos. 579 of 1976 and 99 of 1987. N.P.V.                                        Appeals   dis- missed. 700