SAHDEO AND ORS.versusSTATE OF U.P.

A                              SAHDEO AND ORS.
                                         V.

                                  STATE OF U.P.

                                 APRIL 30, 2004                                     (



B            [K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.]


         Penal Code, 1860-Sections 302, 149, 148 and 452-Evidence Act,
  1872-Sections 3 and 27-Accused persons armed with weapons intercepting
  a bus-Indiscriminate firing at deceased persons resulting in their death-
C Two of the deceased chased and killed thereafter. and two persons managed
  to escape-FJR lodged-Investigation conducted-Post mortem report showing
  only gun shot injuries on the bodies ofdeceased person-Deposition about the
  incident by those who managed to escape-Conviction of accused persons
  armed with fire arms and imposition ofdeath penalty-Order upheld by High
D Court-Acquittal ofaccused persons who were allegedly armed with lathis by
  trial court-However, High Court setting aside acquittal ofaccused S, convicted
  him and imposed death sentence-On appeal, held: Even though investigation
  conducted not satisfactory, evidence of those who managed to escape was
  clear and convincing with regard to the incident-FJR genuine and Investigating
  Officer not given opportunity to explain delay in sending FJR to the Magistrate
E -Common object of unlawful assembly clear from evidence- However, no
  evidence with regard to the overt acts by individual accused-Possibility of
  some armed with firearms but not had the occasion to use it though shared
  common object of unlawful assembly -Hence,. imposition of death sentence
  not justified-Conviction upheld on all counts and death sentence commuted
F to life imprisonment-Furthermore, it cannot be held that death sentence
  cannot be imposed in absence of various overt acts by individual accused-
  Recovery of country-made pistol and motor cycle made pursuant to the
  confessional statement made by accused S not satisfactorily proved since
  recovery purported to have been made when accused produced in the Court-
  Order of High Court not justified and accused S acquitted of all charges-
G Code of Criminal Procedure, 1973-Sections 154 and 366.

         There was enmity between two groups-accused persons and the
    deceased persons though they are the lineal descendents of one common
    ancestor. On the fateful day·deceased persons and PW-1 and PW-2 were

H                                       918




                                                                                        l
                         SAHDEO v. STATE OF U.P.                         919
   returning to their village by bus. Accused persons came in cars and          A
   motorcycle and intercepted the bus. They entered the bus armed with
  rifles, guns and revolvers and indiscriminately fired as a result of which
  five deceased persons died on the spot. Accused chased PW-1, PW_:-2, R
  and P to the house of H and fired at Rand P where they died. PW-1 and
  PW-2 hid themselves near the house of H and managed to escape. It is
  also alleged that the accused persons looted the house of H. FIR was lodged   B
. the same day. Names of all the accused were mentioned. Investigation was
  carried out. Postmortem was conducted and series of gun shot injuries
  were found on the bodies of the deceased persons. On the statement of
  appellant S, country made pistol and motor cycle were recovered and on
  the statement of other accused weapons, and car allegedly used by the         C
  accused were recovered. Eleven accused were charged under IPC and
  Arms Act. Sessions Judge convicted accused persons armed with fire arms
  under Section 302 read wTtW Section 149 IPC, Sections 148 and 452 IPC
  and under Sections 25 and 27 of Arms Act and imposed death sentence.
  However, the other accused persons who were allegedly armed with lathis,
  were acquitted including appellant S. Accused convicted by Sessions Judge     D
  filed an appeal. High Court dismissed their appeal and upheld their death
  sentence. State also filed appeal against acquittal of other accused. High
  Court convicted appellant S under Section 302 read with Section 149 and
  imposed death sentence. Hence the present appeals.
                                                                                E
      Appellant-accused contended that the prosecution could not produce
any satisfactory evidence to show that six persons were shot dead inside
the bus; that there were. no fire marks at any part of the bus and the
prosecution suppressed this material evidence; that the bus was not seized
nor a proper 'mahzar' was prepared; that the driver and the conductor
of the bus were not examined as witnesses, that PW-1 and PW 2 deposed           F
that the accused fired indiscriminately and as such many other occupants
of the bus would have sustained injuries; that the Magistrate received FIR
six days later and prosecution failed to explain the delay; that FIR must
have been concocted later after the inquest and postmortem examinations
were over; that either PW l or PW 2 could not give evidence as to which         G
appellant caused death of which deceased; that in the absence of clear and
convincing evidence regarding the complicity of the accused, death penalty
could not be imposed; and that High Court erred in setting aside the
acquittal of appellant S.

      Respondent State contended that this is a ghastly incident in which       H
    920                      SUPREME COURT REP.ORTS [2004] SUPP. l S.C.R.

A eight persons were done to death, as such death penalty alone is the most
    appropriate punishment to be imposed.

          Disposin.g of the appeals, the Court

          HELD: 1.1. In the instant case, though the investigation conducted
B   by the prosecution was highly unsatisfactory, there is clear and convincing
    evidence of PW-1 and PW-2 to prove that the 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 and fired at them and also with regard to
    the incident that happ·ened in the house of H. Appellants closely knew the
C   deceased persons, PW-1 and PW-2. Some of the appellants entered the
    bus from ~he front door while the others from the rear door as such they
    could successfully prevent the deceased person'-' yom getting out of the
    bus. Since the victims were unarmed, it was easy for the appellants to
    overpower and shoot the deceased and the other' passengers mus!: have
D   been allowed to go out of the bus either at the time of inciden~ or
    immediately after the incident. Furthermore, the medical evidence shows
    that all the deceased persons had been fired at from a very close range.
                                                           [924-G-H; 925-A-B]

          1.2. The F.1 Statement contains only~ brief statement of events. If·
E   the F.I.R. h_ad 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, and the
    Investigating Officer was not given any opportunity to explain.
                                                                     [925-F-H]
F
         1.3. The accused persons knowing fully well that the deceased persons
  were travelling in that bus came in a group by using cars and motorcycle
  and intercepted the bus. They entered the bus and without giving any
  opportunity to the deceased persons to escape from the bus, killed _them
G on the spot. The common object of the unlawful assembly to kill the
  deceased persons is clearly spelt out fro·m the nature and circumstances
  of the evidence. However, there is no clear evidence that by the use of
  whose fire arm all the six deceased persons died. Investigating agency
  failed. to produce clear and distinct evidence to prove the actual overt acts
  of each of the accused. There was failure to examine the driver and
H conductor of the bus, failure to seize the bus and absence of proper
                      SAHDEO v. STATE OF U.P.                          921
'mahzar'. The Doctor who gave evidence, was not properly cross-examined       A
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 show that the firing may have been caused by 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,        B
though they fully shared the common object of the unlawful assembly.
Under such circumstances imposition of the death penalty on each of the
five appellants may not be justified. Conviction of A-1, A-4, A-5, A-7 and
A-10 is upheld on all counts but the death sentence is commuted to life
imprisonment. Furthermore, in the absence of various overt acts by
individual accused persons, it cannot be held that the accused persons are    C
not to be convicted under Section 302 read with Section 149 and death
penalty cannot be imposed. (928-B-C; 927-A-B]

      1.4. When the prosecution relied on the recovery of country-made
pistol and motorcycle pursuant to confessional statement made by
appellant ~. it should have produced satisfactory evidence to prove these     D,
recoveries for holding him guilty. The failure to prove the confessional
statement allegedly made by appellant S and the fact that on that
particular day there could not have been any recovery of these items at
his instance since he was produced in the court that day, throws serious
doubt on the prosecution case. Sessions Judge had taken a reasonable view     E
of the matter by acquitting S. High Court should not have set aside the
acquittal and convicted appellant S. Therefore, the conviction and sentence
of appellant S for the offence under Section 302 read with Section 149
IPC is set aside and he is acquitted of all the charges. (927-F-H; 928-A]

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 11-               F
13 of 2004.

      From the Judgment and Order dated 25.11.2003 of the High Court of
Judicature at Allahabad in Crl. Appeal. Nos. 1780, 1805 & 1810 of 2002
with Reference No: 2/2002 and Govt. Appeal No. 4026/2002.
                                                                              G
                                  WITH
     Criminal Appeal No. l of 2004.

     Sushi! Kumar, S. Muralidhar (A.C), Y.P. Singh, C. Siddharth, Mukesh
K. Sharma, Sandeep Singh, S.S. Pahwa, K.P. Singh, Deo Raj Pawar, Debasis
Misra, Mohit Mathur, Sagar Dawar, Vivek Kumar and P.N. Puri for the           H
    922                       SUPREME COURT REPORTS (2004] SUPP. l S.C.R.

A Appellants.
        ' Pramod Swarup, Ms. Pareena Swarup and Praveen Swarup for the
    Respondent.

          The Judgment of the Court was delivered by
B
           K.G. BALAKRISHNAN, J. Even accused were tried by the court of
    sessions, Muzaffamagar, 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
C   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
D   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
E   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-I
  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
F court at Muzaffamagar. 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 Bahadurpur. When the bus r_eached near the
G 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,
H Jaiveer Singh, Ashok, Paran Pal and Sonu died on the spot. PW- I Brijesh
             SAHDEO v. STATE OF U.P. [BALAKRISHNAN, J.)                     923
 Kumar; PW-2 Raj Bahadur; Rakesh and Prem managed to get down from the              A
 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. Both Rakesh and Prem
 died at the house of Hukum Singh. PW- I 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              B
 and the door of that room was broken and he was killed. The prosecution had
 alleged that the accused persons looted the house of Hukum Singh and some
 gold and silver ornaments, silver coins and a double barrel gun were taken
 away from that house. The accused persons are the sons, grandsons 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       cj
 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-I, the Station House Officer
  ofSikhera Police Station recorded the F.I. statement at 7.15 P.M. on 12.1.2000.   D
  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 cartridge$ 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          E
  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 postmortem
  examination. PW-3, Dr. V.C. Gupta conducted the postmortem examination.
  There wer~ 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       F
  motorcycle were recovered from a sugarcane field. The other accused were
· also arrested and based ~n 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    G
assailed by the appellants' counsel on various grounds. Senior counsel, Shri
Sushi! 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              H
    924                       SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A prosecution to produce cogent and corivincing 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' preparkd and
    it was contended that had the incident happened inside the bus, there would        f
    have been some fire marks at any part of the bus and that the prosecution
B   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 Sushi! 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.
c         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
D 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
E   recorded on 12.1.2000, reached thP, 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 giveJ\ reasonable
    explanation for this delay in questioning the material witnesses. The
F   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
G   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-I and PW-2
    deposed that _all the deceased persons were inside the bus when the accused
H
             SAHDEO v. STATE OF U.P. [BALAKRISHNAN, J.]                    925

persons armed with weapons got into the bus. Three of the deceased persons A
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 B
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- I and PW-2 in this regard is clear and C
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 D
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.                                                E
      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.l.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 F
counsel further contended that the F.I.R. must have been concocted later after
the inquest and postmortem 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 G
of events. If the F.1.R. had been prepared later after the inquest and postmortem
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 co-tild not give H
    926                       SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A 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.         <
B   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 motorcycle and intercepted the
C   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.

D         As regards the sentence of death imposed on five accused persons by
    the sessions court, which was confirmed by the appeHate court, the counsel
    for the appellants, Shri Sushi! 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
E   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
F   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
G   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
H   shared the common object of the unlawful assembly. Imposition ofthe death
                     SAHDEO v. STATE OF U.P. [BALAKRISHNAN, J.)                   927

        penalty on each of the five appellants may not be justified under such            A
        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          B
        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. l 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            C
        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       D
        recovery of the motorcycle 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                 E
        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 motorcycle along with Parvinder and since
        Parvinder was found guilty and convicted, appellant Satyendra should also         F
        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 motorcycle, it should have produced
        satisfactory evidence· to prove these recoveries. The failure to produce the      G
        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
    I
/       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   H
    928                      SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A 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
B   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
C   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.

    N.J.                                                  Appeals disposed of.