U.P. Vs. Kapil Deo & Anr  INSC
203 (21 August 1991)
M.M. Punchhi, M.M. Kuldip Singh (J)
1991 AIR 2257 1991 SCR (3) 692 1991 SCC Supl. (2) 170 JT 1991 (3) 482 1991
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.
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
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.
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.
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.
the appeals, this Court, 693
1. I The prosecution case collapsed so far as one of the accused, who was
assigned the offensive part of the 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.  3 SCC 247, relied on. '
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.
'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.
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]
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.
APPEAL No. 99 of 1987.
Ms. Lalita Kohli, Ms. P. Chaudhary. and A.S. Pundir (N.P) for the Appellant.
for the Respondents.
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
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.
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.
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.
Trial Judge vide his judgment dated October 27, 1970 convicted Vidya Sagar,
accused for an offence under 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.
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
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.
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:
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 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.
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.
though slightly in different circumstances in Duvvur Dasratharammareddy v.
State of Andhra Pradesh, [197 1] 3 SCC 247, observed as
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.
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.
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 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.
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.
the foregoing reasons, we dismiss both the appeals Nos. 579 of 1976 and 99 of
Appeals dis- missed.