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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