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CASE NO.: Appeal (crl.)  11-13 of 2004

PETITIONER: Sahdeo & Ors.

RESPONDENT: State of U.P.

DATE OF JUDGMENT: 30/04/2004

BENCH: K.G. Balakrishnan & B.N.Srikrishna.

JUDGMENT: J U D G M  E N T    

WITH

CRIMINAL APPEAL NO. 1 OF 2004

Satyendra                       ..      Appellant Vs. State of U.P.                   ..      Respondent

K.G. BALAKRISHNAN, J.

       Eleven accused were tried  by the  court of sessions, Muzaffarnagar, for  offences punishable under Sections 147, 148, 395, 397, 452 and  302 read  with  Section 149 IPC.   There were also charges against some of the accused under  Sections 25 and 27 of Arms Act.   After the trial,  the Sessions Judge convicted  five  accused for the offences punishable under Section 302 read with Section  149 IPC.    They were also convicted under  Sections 148 and 452 IPC and  under Sections 25 and 27 of the Arms Act.    Six accused were acquitted by the  Sessions Court.   The  five accused,  who were found guilty,  were sentenced to  death by the Sessions Court.  These accused filed an appeal before the High  Court of  Allahabad and the  State  also filed an appeal against the acquittal of  the other five accused.   The appeal preferred by the convicted accused was  dismissed.   However, the  State appeal  filed against the acquittal of the  five  accused  persons was  partly allowed  and  appellant  Satyendra  was found  guilty of the offences  punishable under  Section 302 read with Section 149 and  he was also sentenced to death by the High Court.  As regards the other five  accused who were convicted by the Sessions Court,   their sentence of death  was confirmed by the High Court.

       The  incident, which has given rise to the present appeals,  happened on   12.1.2000  at about 5.P.M.  on the outskirts  of village Bahadurpur.   PW-1  Brijesh  Kumar  and PW-2 Raj Bahadur  along with one Anil Kumar and eight  deceased persons had, on the fateful day,  gone to attend  a case  at  the  sessions court at Muzaffarnagar.    That sessions case was in respect of   the  death of one  Anand Pal,  who was murdered on 5.3.1999.      Deceased Padam  Singh,  Raj Pal Singh and  Sonu were accused in that case.   After the sessions  case was over,  all the now-deceased eight persons,  PW-1 and PW-2,  and Anil  Kumar boarded a bus to reach their village at  Bahadurpur.  When the bus  reached near the village Bahadurpur,   two Maruti cars and a motorcycle came  from behind and   stopped in front of the bus  to intercept the same.   The bus  was  stopped  and  all the twelve accused entered the bus.   Dharmendra @   Bittu and Subhash were armed with rifles.   Sahdeo, Chandraveer and Satyapal  were armed with guns.   Satyendra  and Parvinder were armed with revolvers.    As soon as these accused entered the bus, they  started  firing as a result of  which    Padam Singh, Jaiveer Singh,   Ashok,  Paran Pal and Sonu  died on the  spot.      PW-1 Brijesh  Kumar; PW-2 Raj Bahadur;  Rakesh and Prem managed  to get down from the bus and they ran for their  lives.   The accused chased the

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deceased  Rakesh and Prem  to the house of Hukum Singh and fired at  them.     Both Rakesh and  Prem  died at the  house of Hukum Singh.   PW-1 and PW-2  hid  themselves  and managed to escape.    Deceased Prem was shot at when  he was on the verandah of  Hukum Singh’s house whereas  Rakesh was inside a  room of that house and the door of that room was broke open  and he was killed.    The prosecution had alleged that the accused persons looted the house of  Hukum Singh  and some gold  & silver ornaments, silver coins and a  double  barrel gun were taken away from that  house.   The accused  persons  are the  sons, grand-sons and great grand-sons of one Data Ram and the deceased  persons are  the children  and grand children of Lila Pant.    Lila Pant and Data  Ram were the children of one Ganga Sahai.   It appears that there was a  long  standing  enmity  between these two groups of persons, though  they are the  lineal descendents of one common ancestor.

       Based  on the information furnished  by PW-1, the Station House Officer  of  Sikhera Police Station recorded the F.I. statement  at 7.15 P.M. on 12.1.2000.    Names of all the twelve accused persons were mentioned in the F.I. statement.    PW-4 Vinod  Kumar Tewatia  took over the investigation.   He visited the place of  incident and took  necessary photographs.   On 12.1.2000 he seized  the empty  cartridges and two bullets from the bus.   From the house of Hukum Singh, one  live cartridge  of 315 bore  and one empty cartridge of  12 bore were also  recovered.   The  inquest over the dead bodies was held by Sub Inspector of  Police, S.P. Tyagi.   The bodies were  later  sent for post-mortem examination.    PW-3, Dr. V.C. Gupta conducted the post mortem examination.   There were  series of gun shot injuries on the bodies of the deceased persons.   Accused  Satyendra surrendered before the court and he was remanded to custody.    Based on his information, one country-made pistol and a hero honda motor-cycle  were recovered from a sugarcane field.  The other accused  were also arrested  and based on the statement of these accused persons, certain weapons of  offence were recovered.   One of the cars allegedly used by the accused was  also recovered.

       The conviction and sentence  entered against these appellants are  strongly  assailed by the appellants’ counsel on various grounds.    Senior  counsel,   Shri Sushil Kumar submitted that the prosecution could not produce  any satisfactory evidence to show that the incident happened as alleged by the  prosecution.     It was  argued that  the prosecution case that six  persons were  shot dead inside the bus is highly improbable and that failure of the prosecution  to produce cogent and convincing evidence to prove that the incident happened  in  the bus completely falsifies  the prosecution case.     It was pointed out that  neither the driver  nor the conductor of the bus was examined as a witness.   The   bus was not  recovered nor a proper ’mahzar’  prepared and it was contended  that   had the incident happened inside the bus, there would have been some fire  marks at  any part of the bus and that the prosecution suppressed  this material   evidence.   It was  also submitted that PW-1 and PW-2 deposed that there was  indiscriminate firing when the accused  were inside the bus and Shri Sushil  Kumar contended that had there been such a firing,  many other occupants of the  bus would probably have  sustained injuries as there were 30-40 other  passengers inside the bus at the time of the incident.

       The counsel for the State who supported the judgments of the sessions  court as well as the High Court  contended that the incident happened inside the  bus.

       At the outset we must observe that the investigation of this case was  hopelessly conducted.   The Investigating Officer did not prepare a proper scene   ’mahzar’ and as the occurrence happened inside the bus, the bus itself should  have been seized by the police to prove the prosecution case.   Some of the  witnesses were questioned by the police after a long lapse of time.   Many of the  relevant facts were not noted by the Investigating Officer.   We are also surprised  to note that the first information that is said to have been recorded on 12.1.2000  reached the Magistrate only on 18.1.2000.  PW-2, the eyewitness Raj  Bahadur  was questioned on 27.1.2000.     So also,  Hukum Singh, in whose house two  murders took place, was questioned either on 26th or 27th January, 2000.   The  Investigating Officer has not given reasonable explanation for this delay in

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questioning the material witnesses.   The prosecution also failed to produce all  material witnesses.   Only seven witnesses were examined on the side of the  prosecution.   In a case of this serious nature, failure of the police to produce the  best evidence before the court casts serious reflection on the system itself that is  followed in investigation of criminal cases in the State.   A case of this serious  nature which resulted in the death of eight persons and the death sentence of six  persons should have been conducted with more circumspection and  seriousness.                  Though the investigation conducted bv the prosecution was highly  unsatisfactory, there is convincing evidence to prove that these appellants were  responsible for causing the death of eight persons.   PW-1 and PW-2 deposed  that all the deceased persons were inside the bus when the accused persons  armed with weapons got into the bus.   Three of the deceased persons were  sitting on the seat just behind the driver’s seat and the other three persons were  sitting 2-3 seats behind the front seat.    The deceased persons were closely  known to the appellants.  Some of the appellants entered the bus through the  front door while the others entered through the rear door.     The appellants thus  could successfully prevent the deceased persons from getting out of the bus.    The medical evidence shows that all the deceased persons had been fired at  from a very close range.   Since the victims were  unarmed and the appellants  were fully armed with  fire-arms,   it was easy  for the appellants to overpower  and shoot the deceased and the other passengers must have been allowed to   go out of the bus either at the time of incident or immediately after the incident.    The evidence of PW-1 and PW-2 in this regard is clear and convincing.    It is  pertinent to note  that  PW-2 Raj Bahadur was not even cross-examined in detail  to challenge the veracity of his evidence.    He deposed  in clear terms  that the  accused persons entered the bus and started firing and that all the six persons  received injuries  in the bus.    As regards the incident that happened in the  house of  Hukum Singh in which the deaths of Rakesh and  Prem were caused,     the evidence of PW-1 and PW-2 is satisfactory and convincing.   These two  witnesses  deposed that they were  chased by the accused  and they managed  to escape by hiding themselves in a house nearer to the house of Hukum Singh  and there was no dispute regarding the identity of these appellants.   PW-1 and  PW-2 were known to them for a long period and  they are distantly related also.

       The counsel for the  appellants  seriously contended that the  First  Information Report was received by the  Magistrate only on 18.1.2000 and the  prosecution did not explain the six days delay in sending the F.I.R. to the court.     It is important to note that the Investigating Officer was not asked to explain how  the delay occurred in sending the F.I.R. to the Magistrate.   The counsel further  contended that the F.I.R.  must  have been concocted  later after the inquest and  post mortem examinations were over.   It was submitted that the delay in sending  the F.I.R. to the Magistrate enabled the prosecution to cook up  a  false case  against the appellants.     We are not inclined to accept this contention for the  reason that the F.I. Statement contains only a brief statement of events.  If the  F.I.R. had been prepared later after the inquest  and post  mortem were over,  many more matters could have been incorporated in  the F.I.R.    The absence of  any further details in the F.I.R. shows   its genuineness and the delay   probably  would have happened due to some other reason,   which the Investigating Officer  was not given any opportunity to explain.  Lastly, the counsel for the appellants  submitted that either PW-1  or PW-2 could not  give any evidence as to  which  appellant caused the death of which  deceased and the absence of evidence  regarding the overt acts  allegedly made by these appellants showed that  many  of these appellants were not party to the unlawful assembly.   This plea also  cannot be accepted.   The trial court as well as the High Court convicted those  accused persons who were armed with fire-arms.   There were no other injuries  found on the dead bodies  of the  deceased  person  having either been caused  by a  ’Lathi’  or other blunt weapon.   Therefore, those who were allegedly armed   with ’Lathis’ were acquitted by  the sessions court and their acquittal was  confirmed by the High Court.   As regards the nature of the unlawful assembly,  there is clear evidence to the  effect that all of them came in a group  by using  cars  and a motor-cycle and  intercepted  the bus.     Knowing fully well that the  deceased persons   were travelling in that bus,  the appellants entered the bus  and  without giving any opportunity to the deceased  persons to escape from the

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bus,  killed them on  the spot.    The   common object of the unlawful assembly  is  clearly spelt out from the nature and circumstances of the evidence.

As regards the sentence of death imposed on five accused persons by the  sessions court,  which was confirmed by the appellate court,  the counsel  for the  appellants,  Shri Sushil Kumar submitted that in the absence of clear and  convincing evidence regarding the  complicity of the accused, these appellants  could not be visited  with the death penalty,  while the counsel for the State   submitted that  this is a ghastly incident in which eight persons were done to  death and  the death penalty alone  is the most appropriate punishment to be  imposed.   Though it is  proved that there was an unlawful assembly and the  common object of that unlawful assembly was to kill the deceased persons,   there  is    another aspect of the matter   inasmuch as  there is no clear  evidence  by the use of whose  fire-arm all the six deceased  persons  died  as a result of    firing  in the bus .   It is also pertinent to note that the  investigating  agency   failed to produce clear and distinct evidence to prove the actual overt acts of  each of the accused.   The  failure to examine the driver and conductor of bus,   the failure to seize the bus and the absence of a  proper ’mahzar’,    are all  lapses on the part of investigating agency.  Moreover,  the doctor  who gave  evidence before the court was not properly cross-examined regarding the nature  of the injuries.     Some more details  could have been collected as to   how the  incident might have happened inside the bus.   These facts are pointed out to  show that the  firing may have been caused by the assailants even while they  were  still standing  on the   footboard  of the bus and some of the appellants  may not, in fact,  have had an occasion to use the fire-arm, though they fully  shared the common object of the unlawful assembly.  Imposition of the death  penalty on  each of the five appellants may not be justified under such  circumstances.    We take this view in view of the peculiar circumstances of the  case and it should not  be understood  to  mean  that the accused persons are   not to be convicted under Section 302 read with Section 149 and the death  penalty cannot be imposed in the absence of  various overt acts  by   individual  accused persons.   In view of the nature and circumstances of the case, we   commute the death sentence imposed on A-1 Sahdeo,  A-4 Subhash, A-5  Chandraveer, A-7 Satyapal and A-10 Parvinder to imprisonment for life.

       Criminal Appeal No. 1  of 2004  is filed by accused Satyendra who was  acquitted by the  sessions court,  but  subsequently  convicted  by  the High  Court and found  guilty of the offence punishable under Section 302 read  with  Section 149 IPC  and also Sections 148 and 452 IPC and  sentenced  to death.    Shri S. Muralidhar, Advocate, appearing on behalf of this appellant submitted that  the High Court seriously erred in reversing his acquittal.   The acquittal of this  appellant by the sessions court was based on the reason that the recovery of a  country-made pistol  and a motor-cycle  pursuant to  his alleged confession was   not  satisfactorily proved.    The Sessions Judge found  that   the recovery of the  motor-cycle and the country-made pistol was purported to have been  done on  22.1.2000.   The Sessions Judge had noticed that on 22.1.2000, appellant  Satyendra was produced in the court and that there could not have been any  recovery as alleged by the prosecution.   The prosecution could not prove that  appellant Satyendra had made any confessional statement.   This aspect was  considered at length in paragraph 54 of the sessions court judgment.   The High  Court did not attach any importance to this aspect of the case and reversed the  acquittal on the ground that the prosecution evidence showed that appellant  Satyendra also was armed with a weapon and he came on the motor-cycle   along with Parvinder and since Parvinder was found guilty and convicted,  appellant Satyendra should also have been found guilty of the offence under  Section 302 read with Section 149 IPC.

       When the prosecution relied on the recovery of two important items,  namely, the country-made pistol and  the motor-cycle, it should  have produced  satisfactory evidence to  prove these recoveries.   The failure to produce the  confessional statement allegedly made by  appellant Satyendra and the fact that  on that particular day there could not have been any recovery of these items at  his instance, are important circumstances which throw serious doubt on the  prosecution case.     The Sessions Judge  had taken a reasonable view of the  matter.    The High Court should not have reversed the acquittal and convicted

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appellant Satyendra  for the offence punishable  under Section 302 read with  Section 149.   Therefore, we set aside the  conviction and sentence of  the  appellant, Satyendra, for the offence under Section 302 read with Section 149  IPC and Sections 148, and 452 IPC.   He is acquitted of all the charges.

       In the result, the appeals preferred by A-1 Sahdeo, A-4 Subhash, A-5  Chandraveer, A-7 Satyapal and A-10 Parvinder are partly allowed and their  conviction on all the counts is confirmed.     However,   the sentence of death  penalty imposed  on  them  for the offence punishable under Section 302 read  with Section 149 is commuted to imprisonment for life.  The Criminal Appeal No.  1 of 2004 filed by Satyendra is allowed and he is acquitted of all the charges  framed against him and the sentence imposed on him is set aside.   He  is   directed to be released forthwith,  if not required in any other case.