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CASE NO.: Appeal (crl.)  1221 of 1998

PETITIONER: Budhan Singh & Ors.                                              

RESPONDENT: State of Bihar                                                   

DATE OF JUDGMENT: 25/04/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T  

S.B. SINHA,  J :

       The Appellants have preferred this appeal being aggrieved by and  dissatisfied with the judgment and order of the High Court of Patna dated  24.2.1988 affirming the judgment of conviction and sentence dated 29th  November, 1986 passed by the Additional District and Sessions Judge, IV,  Patna in Sessions Trial No. 401 of 1981.   

       The basic fact of the matter is not in dispute.   

       A First Information Report was lodged by one Md. Saudagar on  14.1.1979 at about 9 p.m. in regard to an incident which is said to have taken  place at about 7 p.m. on the same day, alleging that when he along with his  co-villagers Syeduddin Nut (PW-2), Alauddin Nut (PW-3), Deo Nath  Paswan (PW-9) and Lakhan Paswan (since deceased) were returning from  Rajghat Mela, the accused Devi Dayal Singh, Mathura Singh, Sarjug Singh  and Chuta Singh met them at the Alang in Adpakhanda whereupon  Syeduddin asked the accused as regard their identity to which one of them  replied that he was his father.  Altercations and abuses thereafter followed.   Devi Dayal Singh and Sarjug Singh were said to be having countrymade  pistols with them.  Chuta Singh, subsequently named as Chandrika Singh,  allegedly had a rifle with him and Mathura Singh had a double barrel gun.   They threatened to shoot the informant and his companions whereafter they  ran towards their village Neora raising alarm Chor-Chor.  On hearing such  alarm, Mister Mian (deceased), brother of the informant and several other  villagers rushed whereupon Devi Dayal Singh allegedly ordered to fire shots  pursuant whereto four persons were said to have fired shots which hit the  deceased Mister Mian.  He fell on the agricultural field belonging to one  Jalandhar Singh.   

       The accused persons thereafter were said to have fled away.  The  deceased was brought on a cot to the village by Deo Nath Paswan (PW-9),  Md. Amanullah (PW-8), Jakiuddin (PW-7), Alauddin Nut (PW-3),  Amiruddin (PW-10) and others at about 8 p.m.  The accused persons  snatched away the deceased Mister Mian along with the cot at the point of  firearms whereupon people from village Shahpur including Mithila Sharan  Singh (PW-1) arrived.  An information is said to have been sent to the police  station by telephone from a nearby Christian Mission at about 8.15 p.m.  The  dead body of Mister Mian was recovered from an open field situated about  750 yards away from the place wherefrom he had allegedly been taken away  forcibly.   

       The learned Sessions Judge by reason of his judgment dated 29th  November, 1986 convicted Devi Dayal Singh, Mathura Singh and Sarjug  Singh for commission of an offence under Sections 302/34, 120B, 201 of the  Indian Penal Code and Section 27 of the Arms Act.  Chandrika Singh,

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however, was acquitted.  The Appellants \026 Rajendra Singh, Surendra Singh,  Jagdish Singh, Arjun Singh along with Ram Yad Singh, Bikku Singh and  Budhan Singh were, however, convicted only under Section 201 of the  Indian Penal Code and were sentenced to undergo five years rigorous  imprisonment.

       On an appeal preferred by the Appellants thereagainst, whereas the  conviction of all the accused persons were confirmed, the High Court  reduced the sentence from five years to two years in respect of those who  were found to be guilty only under Section 201 of the Indian Penal Code.   One of the accused persons, Budhan Singh, is said to have died.  He is not an  Appellant before us.  This Court dismissed the special leave petition of Devi  Dayal Singh, Sarjug Singh and Mathura Singh by an order dated 9.11.1998.

       Before the learned Trial Judge, the prosecution in order to prove its  case examined 12 witnesses whereas the defence examined 8 witnesses on  its behalf.

       Mr. Rakesh Taneja, learned counsel appearing on behalf of the  Appellants would submit that the learned Trial Court as also the High Court  committed a serious error in holding the Appellants guilty of commission of  an offence under Section 201 of the Indian Penal Code particularly in view  of the fact that they had not been charged under Section 120B thereof.  The  prosecution failed to show as to why they should commit the said offence.   The Appellants had no motive therefor.  There is furthermore nothing on  record to show that they had known that an offence has been committed.   The learned Trial Judge and for that matter the High Court did not record  any reason nor analysed the evidences adduced by the prosecution to arrive  at a finding that the ingredients of Section 201 of the Indian Penal Code  were proved.  Damage of standing crops itself is not a circumstance  whereupon both the Trial Court as also the High Court placed strong  reliance for arriving at the conclusion that they were guilty of commission of  an offence under Section 201 of the Indian Penal Code.

       The learned counsel appearing on behalf of the State, on the other  hand, supported the impugned judgment.

       The Trial Court inter alia framed the following points for its  consideration which are relevant for this case:

"Point No. \026 3 Whether the first place of  occurrence near the ’Alang’ in Adhapa ’Khandha’  and the manner of alleged shooting of Mister Mian  there by the accused persons and charges against  them u/s 302 & 302/34 have been satisfactorily  proved by the prosecution?

Point No. \026 4. Whether the alleged snatching away  of Mister Mian’s body in between Gonpura  Mission in the north and Hasanpura \026 Sahpur  village in the south by the side of Fulwari  Hasanpura Kutchi Road and the charge u/s 201  I.P.C. has been proved?

Point No. \026 5. Whether the plea of alibi of accused  Surendra Singh is believable?

Point No. \026 6. Whether the charge u/s 27 Arms Act  and the charge u/s 120 I.P.C. stand proved against  the accused persons?"

       The Trial Court took up the said points No. 3,4,5 and 6 together for  the purpose of appreciation of evidences adduced on behalf of the  prosecution.  PWs \026 1, 2, 3, 7, 8 and 11 are the witnesses whereupon

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reliance has been placed both by the Trial Court as also by the High Court.   

       PW-9 claimed to be an eye-witness.  His evidence, however, was not  found to be reliable.  He evidently was on inimical terms with the accused.   His conduct during the course of investigation raised a great deal of  suspicion as regard truthfulness or otherwise of his statements before the  court.   

       The learned Sessions Judge as also the High Court did not discuss in  details in regard to the second part of the occurrence for which the  Appellants herein have been convicted.  We would, thus, have considered  the question of their involvement having regard to the materials available on  records.   

       The Trial Court in its judgment merely observed:

"Now, the second part of the prosecution case and  the second place of occurrence is about two  kilometers north at Patela (the broader portion of  the Hasanpur Fulwari Kutcha road going north- south near Sahpur-Hasanpur village in the land of  one Ramyad Singh in which Tisi-Masuri were  growing lying adjacent east to the said road.  This  place is about four hundred yards south from  Gonpura Mission and about the same distance  north from village Sahpur-Hasanpur.  P.W.12 the  I.O. while giving details of the second place of  occurrence has also mentioned in para 8 to 10 that  towards east from the road as well as towards west  from the road the standing Wheat and Masuri  crops has been very much trampled.  All but  accused Devi Dayal Singh and Sudhansu Singh  have been named in Fardbeyans as persons who  snatched away the body of Mister Mian.  Here it  may be mentioned that the clear intention of the  accused persons had been in snatching away  Mister Mian to cause disappearance of the  evidence of his murder which has been committed  to their knowledge for screening themselves from  legal punishment.  According to the evidence of  the doctor P.W.4 the bullet injuries caused in his  chest was sufficient in ordinary course of nature to  cause his death.  Apart from that, there is no  evidence at all to show that they had any other  object than snatching away his body and throwing  it away clandestinely about four hundred yards  south from village Hasanpur in Mohanpur  Khandha.  The charge u/s 120 B gets proved only  against accused Devi Dayal and Mathura Singh  and Sarjug Singh, regarding making conspiracy to  commit murder of Mister Mian apart from the  offences u/s 302/34, 201 I.P.C. and 27 of the Arms  Act.  The remaining eight accused (except  Chandrika Singh and Sudhanshu Singh) can  however be held guilty only for the offence  punishable u/s 201 I.P.C."

       The findings of the High Court, on the other hand, on the said count  are as under:

"\005The prosecution has been able to prove the  charge under Section 201of the Indian Penal Code  against the remaining accused appellant also and

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they have been rightly convicted by the trial court  under section 201 of the Indian Penal Code..."

                Section 201 of the Indian Penal Code reads as under:

"201. Causing disappearance of evidence of  offence, or giving false information to screen  offender.\027Whoever, 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 be false, [if a capital offence] shall, if the offence which  he knows or believes to have been committed is  punishable with death, be punished with  imprisonment of either description for a term  which may extend to seven years, and shall also  be liable to fine; [if punishable with imprisonment for life] and if  the offence is punishable with imprisonment for  life, or with imprisonment which may extend to  ten years, shall be punished with imprisonment  of either description for a term which may extend  to three years, and shall also be liable to fine; [if punishable with less than ten years’  imprisonment] and if the offence is punishable  with imprisonment for any term not extending to  ten years, shall be punished with imprisonment  of the description provided for the offence, for a  term which may extend to one-fourth part of the  longest term of the imprisonment provided for  the offence, or with fine, or with both."

       Whereas Sections 193 to 195 of the Indian Penal Code are aimed at  the offence of procuring conviction of an innocent person by false evidence,  Section 201 is intended to reach positive acts on the part of an accused who  intend to screening of a guilty person from punishment.   

       The ingredients of Section 201 of the Indian Penal Code are as under:

(1)     that an offence has been committed; (2)     that the accused knew or had reason to believe the commission of  such offence;  (3)     that with such knowledge or belief he \026  (a)     caused any evidence of the commission of that offence to  disappear, or (b)     gave any information respecting that offence which he then knew  or believed to be false; (4)     that he did as aforesaid, with the intention of screening the  offender from legal punishment; (5)     if the charge be of an aggravated form, as in the present case, it  must be proved further that the offence in respect of which the  accused did as in (3) and (4) was punishable with death, or with  imprisonment for life or imprisonment extending to ten years.

       It is not in dispute that the deceased Mister Mian had been injured.   Whether he was dead at that point of time or not is of not much importance  inasmuch when the second incident took place an offence had already been  committed.

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       The question, however, would be as to whether the Appellants before  us had the requisite knowledge of the commission of the said offence or they  had a reason to believe that an offence had been committed.   

       Both the learned Trial Judge as also the High Court arrived at a  finding of fact that such an offence had been committed.  The commission of  the offence relates to snatching away of Mister Mian along with the cot at  the point of firearms.

       Mithila Sharan Singh is PW-1.  He belonged to village Mauza  Shahpur within the police station of Phulwari.  He was present at the time of  occurrence.  He in his evidence, as regard the second part of the occurrence  categorically stated that Rajendra Singh was armed with rifle, Jagdish Singh  and Arjun Singh were carrying the cot and Surendra Singh was seen with a  gun.  He is although said to be an interested witness, there is nothing to show  that he in relation to the second incident would implicate the Appellants  falsely.  His presence is not disputed, as against him also a case was  registered by the accused.  He was arrested by the Superintendent of Police  on the same day.

       PW-2 is Syeduddin Nut.  He also named all the four Appellants.  He  categorically stated that the Appellants and others came from the western  ridge of the field and rounded them up.  In relation to the first part of the  incident also, his statement has been believed by both the courts.  In the  cross-examination, he categorically stated that all the persons named by him  including the Appellants herein were those who had taken possession of the  injured person forcibly.   

       PW-7 in his deposition stated:

"When we reached towards north ahead of  Shahpur village taking injured Mister, Chandrika  Singh, Bakhauri Singh, Budhan Singh, Sarjug  Singh, Mathura Singh, Ramyad Singh, Rajendra  Singh, Surendra Singh, Jagdish Singh, Arjun  Singh, Bikku Singh, Sudhamsu Singh and 3 to 4  unknown persons appeared suddenly and rounded  us up.  Mathura Singh was armed with the gun.   Surendra was armed with the rifle, Rajindra was  armed with pistol  and Chandrika was armed with  country made pistol.  They threatened us.  They  took possession of the cot forcibly on which we  were carrying the injured Mister and told us to run  away otherwise they would shoot us.  They had  taken away the cot with injured Mister.  They  carried the cot with injured Mister.  They carried  the cot with injured Mister towards the west  Khandha.  Saudagar and Amiruddin were having  torch in their hands.  It was moonlit night.  It was  quarter to eight.  I had recognized the accused  persons in the light of moonlit and the light of  torch."   

       In his cross-examination, he categorically stated that although they  had not been assaulted, but were threatened.  According to him, the  Appellants and others took the cot away from their shoulders.   

       PW-8 is Md. Amanullah.  He was brother-in-law of the deceased  Mister Mian.  He also in his deposition named the Appellants.  According to  him, after the cot of Mister Mian was taken away, they fled from the place of  occurrence out of fear.   

       PW-11 is Saudagar Mian.  The said witness also named the  Appellants herein.  According to him, the accused came and told them to

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leave the cot otherwise would be shot at.  Thereafter, they took away the cot  in which Mister Mian was lying.  The accused had abused them.  His  presence is also not disputed as against him also a first information report  was lodged.

       From the conspectus of events, as noticed hereinbefore, and the  manner in which the Appellants are said to have taken part in the  commission of crime, there cannot be any doubt that they had the requisite  knowledge about the commission of an offence.  The very fact that an  injured person was being carried out to the hospital in a cot and the  Appellants not only assisted the main accused persons in snatching away the  cot, two of them carried the cot themselves and two others were armed with  firearms clearly establishes their knowledge about commission or the  likelihood of offence.

       We may at this juncture notice the decisions relied upon by the  learned counsel for the Appellant.

       In Nathu and another v. State of U.P. [AIR 1979 SC 1245], the  accused, only on the basis of a presumption that they were brothers and,  thus, presumably had knowledge about the murder of deceased by her  husband were found guilty for commission of an offence under Section 201  of the Indian Penal Code.  Such is not the case here.

       In Ram Saran Mahto and Another v. State of Bihar [(1999) 9 SCC  486] only the dead body of the deceased was recovered from the well  situated in the compound of the Appellants’ marital home and that the  cremation was hurried through, was although held to be giving rise to  suspicion, the same circumstance being isolated and unconcatenated with  any other circumstance, they were found to be not guilty.  

       In Wattan Singh and Others v. State of Punjab [(2004) 3 SCC 700],  following Palvinder Kaur v. State of Punjab [AIR 1952 SC 354], this Court  held:

"This Court in Palvinder Kaur v. State of Punjab  has held that in order to establish the charge under  Section 201 IPC, it is essential to prove that an  offence has been committed; mere suspicion that it  has been committed is not sufficient. It has to be  proved that the accused knew or had reason to  believe that such offence had been committed, and  with the requisite knowledge and with the intent to  screen the offender from legal punishment caused  the evidence thereof to disappear or gave false  information respecting such offence knowing or  having reason to believe the same to be false\005"

       In that case also, there was no proof about the knowledge of the  accused as regard commission of an offence and only because they were  present at the cremation ground was not found to be sufficient for arriving at  a conclusion that they were guilty of commission of an offence under  Section 201 of the Indian Penal Code.

       In Rajbir Singh v. State of U.P. & Anr. [JT 2006 (3) SC 372], it is  stated:

"The prosecution case that one of the accused  handed over his rifle to Akhilesh Chauhan  (respondent no. 2) and thereafter he ran away from  the scene of occurrence prima facie shows  commission of an offence under Section 201 IPC.   Since two persons have been killed there should be  separate and distinct charge for each murder  besides the charge under Section 3(2)(v)SC/ST

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Act.  The charges framed against the accused who  are alleged to have restored to firing should be  amended accordingly."

       The learned Trial Judge as also the High Court in their respective  judgments dealt with the second stage of the occurrence, along with the first  stage.  Each of the contentions raised before the learned Trial Judge as also  the High Court on behalf of the Appellants and other accused persons had  specifically been dealt with.  We, however, wish that the judgments of the  courts below were a bit more elaborate.  The High Court has also considered  the contention that some of the prosecution witnesses including PW-1 had  enmity with the accused persons.   

       In view of the concurrent finding of fact by both the Courts, we are of  the opinion that no case has been made out for exercising of this Court’s  jurisdiction under Article 136 of the Constitution of India.

       It is, however, not in dispute that all the Appellants before us are aged  more than 70 years.  Rajendra Singh had been in custody for about five  months.  Surendra Singh is said to have been in custody for about three  months fifteen days.  Jagdish Singh was in custody about seven months  whereas Arjun Singh was in custody for about four months.  Having regard  to the fact that all the Appellants before us are above 70 years of age and  furthermore in view of the fact that as they were not connected with the first  part of the occurrence, in our considered view, interest of justice would be  subserved if they are sentenced to the period already undergone by them.   The Appellants are on bail.  They shall be discharged from their bail bonds.   The appeal is allowed in part and to the extent mentioned hereinbefore.