Budhan
Singh & Ors Vs. State of Bihar [2006] Insc 230 (25 April 2006)
S.B.
Sinha & P.P. Naolekar 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, however, was acquitted. The Appellants 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. 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. 4. Whether the
alleged snatching away of Mister Mian's body in between Gonpura Mission in the
north and Hasanpura 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. 5. Whether the
plea of alibi of accused Surendra Singh is believable?
Point
No. 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 1, 2, 3, 7, 8 and 11 are the witnesses whereupon 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:
"The
prosecution has been able to prove the charge under Section 201of the Indian
Penal Code against the remaining accused appellant also and 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.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 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:
-
that an offence
has been committed;
-
that the accused
knew or had reason to believe the commission of such offence;
-
that with such
knowledge or belief he
-
caused any
evidence of the commission of that offence to disappear, or
-
gave any
information respecting that offence which he then knew or believed to be false;
-
that he did as
aforesaid, with the intention of screening the offender from legal punishment;
-
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.
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 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" 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 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.
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