& Ors Vs. State of U.P  Insc 344 (30 April 2004)
Balakrishnan & B.N.Srikrishna.
WITH CRIMINAL APPEAL NO. 1 OF 2004 Satyendra .. Appellant State of U.P. .. Respondent K.G.
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.
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.
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 deceased Rakesh and Prem to
the house of Hukum Singh and fired at them.
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.
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.
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.
of all the twelve accused persons were mentioned in the F.I. statement.
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.
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.
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
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.
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.
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 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.
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.
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.
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.
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.
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 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.
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
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.
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.
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 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.
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
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