Holding

The conviction under section 302 IPC was unsustainable and was altered to section 307 IPC, while the conviction under section 201 IPC was set aside.

Summary

On 25 April 1972, a political dispute in Padaria Tula, Uttar Pradesh, led Bhupendra Singh (appellant No.1) and his supporters to fire at Gajendra Singh, who later died. The trial court acquitted all accused, but the Allahabad High Court convicted Bhupendra Singh under section 302 IPC for murder and others under section 201 IPC for screening evidence. On appeal, the Supreme Court examined whether the prosecution proved that the bullet fired by Bhupendra Singh caused the death. It held that although the first shot was established, the specific injury causing death was not proved, so a murder conviction could not stand; however, the appellant’s intent or knowledge to cause death justified conviction under section 307 IPC. The Court also found the evidence insufficient to sustain the section 201 conviction and set it aside. Accordingly, the conviction was altered to section 307 IPC with a sentence of ten years’ rigorous imprisonment, and the appeal was partly allowed.

Issues considered

The prosecution proved that the first appellant fired at the deceased but not that the bullet caused the death, affecting the applicability of section 302 IPC.
Whether the appellant’s act constitutes an attempt to murder under section 307 IPC.
Whether the evidence establishes the offence of screening evidence under section 201 IPC.

Legislation cited

Indian Penal Code, 1860s. 149, s. 201, s. 302, s. 307

Subjects

murderattempt to murdersection 302 IPCsection 307 IPCsection 201 IPCevidencecorpus delictiscreening of evidencefirearmsappellate jurisdiction

Judgment

BHUPENDRA SINGH AND ORS.
A V.
STATE OF UTTAR PRADESH

MARCH 14, 1991

B [A.M. AHMADI, V. RAMASWAMI AND
FATHIMA BEEVI, JJ.]

Indian Penal Code: Death ca_use by rifle shot-Body removed·~
and burnt-Recoveries made from the place of occurrence-Evidence of
witnesses as to place of occurrence uniform-Prosecution case about the
place of occurrence established.
c
Fire arms used-First shot by Al 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
witnesses that first shot was fired by A 1 is consistant but it cannot be Y
D predicated whether this hit the deceased on his forehead and that injury
caused his death-Conviction of Alunder section 302 J.P.C. altered to
one under section 307 I. P. C.

Nineteen persons were tried by the Additional District and
Sessions Judge, Khetri in S. T. No. 264 of 1973 for offences under
E sections 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 tiling
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. 1, who was also a candidate for the office _...
of Pradhan of Gaon Sabha resulting in the death on the spot of
F Gajendra Singh, one of the supporters of the riv&) .~ndidate Ram
Sewak, P. W .2.

' The prosecution case is that both the rival candidates with their ',_;y'r
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
G of the deceased arriving, Bhupendra Singh enquired from Ram Sewak
(P. W .2) if he had come to file his nomination papers against h,im.
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
H fell dead. The. party of Ram Sewak fled from the scene to escape the

856
BHUPENDRA SINGH v. STATE OF UTTAR PRADESH. 857

~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 A
tractor-trolly belonging to Al on which they had come, burnt it and
ashes thrown in the river causing disappearance of the entire evidence.

The first Additional Session~ Judge acquitted all the accused of all
the charges on the ground that there are many intirmities in the prosecu- B
tion 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 (Al) 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 c
thereunder. Their acquittal under other charges was confirmed.
~ Appeal as against rest of the accused was dismissed altogether. AI, 4, 7
and 8 have thus come in appeal against the judgment of the High Court.

In partly allowing the appeal setting aside the conviction of appel- D
lants 2 to 4 (A4, 7, 8) under section 201 I.P.C., and altering the convic-
tion of appellant No. 1 (Al) from one under sedion 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 E
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 F
->.::'-High Court that the first appeHant is guilty of otTeuce 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)
G
\. We consider that the offence would come under the second limb or
~cond part of section 307, IPC. Though imprisonment for life also
could be awarded as sentence for i>ud1 an offt:nce, on the facts and
circumstances we impose a sentence of 10 years rigorous imprisonment.
We alter the cc:t'lvictfon un:kr section 302, IPC to one under section 307
IPC and sentence him to a term of 10 year rigorous imprisonment. [863G). H
858 SUPREME COURT REPORTS [ 1991] 1 S.C.R.

So for as the offence under section.201 IPC is concerned we have --..,J..
A read the entire evidence carefully and the same does not impress as to
bring home the offence of screening the evidence. [863H, 865H]

CRIMINAL APPELLATE JURISDICTION: Criminal appeal
No. 512 of 1979.
B
From the Judgment and Order Dated 18. 7 .1979 of the Allahabad
High Court in Cr!. A. No. 654 of 1974.

U .R. Lalit, Sob hag Mal Jain, Sudhanshu Atreya, Ms. P. Jain and
S.K. Jain for the Appellants. .___.._____:
c Vi jay Bahuguna, Prashant Chaudhary and D. Bhandari (NP) for
the Respondent.·

The Judgment of the Court was delivered by

D V.RAMASW AMI, 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, section 379 read
with section 149 and sections 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 (PW
E 2), 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 Ga jendra Singh Yadav and further committed rioting, theft of the
licensed gun of said Gajendra Singh Yadav and live cartridges belong-
F ing to the deceased. They were also charged that in furtherance of the
said common object and knowing that the murder of the said Gajendra ~
Singh was punishable with death or imprisonment for life had 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
G 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
H Pradesh preferred Criminal Appeal No. 654 of 1974 before the Luck-
BHUPENDRASINGHv. STATEOFUTTARPRADESH [RAMASWAMI,J.) 859

~ now Bench of the Allahabad High Court. The High Court set aside the
· acquittal of the first appellant Bhupendra Singh (A 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 (A 4, 7
and 8) in part, convicted them .under section 201, IPC and sentenced
them to a term of seven years rigorous imprisonment under that B
section. The acquittal ~f the appellants under the remaining charges
.)-- were confirmed. The High Court also acquitted the other 15 appellants
of all t)e charges .

.,,__) The prosecution case was that the deceased and Ram Sewak (PW
- 2) who are residents of village Bibiapur alongwith Tarun Kumar (PW
1) son of the deceased, Ram Avtar Yadav (PW 3) and their. party c
people came to the village Padaria Tula in a bullock-cart on 25.4.1972
for the purpose of filing the nomination papers of Ram Sewak (PW 2)
·~ 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 D
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 E
(PW 2), whether he had come to file a nomination paper against him.
At that time Gajendra Singh, deceased intervened and challengingly
told the first accused that he should ask him. This resulted in verble
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 F
, / further was that six other accused had also guns and they also fired at
"'" the deceased. 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
occurrence 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 G
reach at the scene and which was driven by the first accused and the
\.--/deceased was taken away. All the accused got foto the trolley and
shouting loudly that they are going to burn the body and throw its
remains in the water drove the tractor towardes the north. PWs 1 to 6
..lre 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 H
860 SUPREME COURT REPORTS [1991] 1 S.C.R.

A which the trolley was attached and the three o(ier appellants and 15 or
16 more people sitting on the tractor and going towards a revulet
shouting that they are taking the body of Gajendra Singh and that he
will be burnt and thrown into the river. PW IO Lalji also-claimed that
he saw the burning of the dead body near the river and the ashes
B thrown in river suita. Tarun Kumar (PW 1) son of the deceased went
to his village Bibiapur, wrote the report Ex. Ka. I. 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 P.M. on
that day. Rama Nand Tewari (PW 17) took up the investigation
reached the scene of occurrence at 5.30 P.M. and seized some blood
. stained earth at a point marked 'A' in the plan and also some ashes,
C besides 55 pellets wads, teeth and some buttons on the spot under
Mahazars which were attested by Rajendra prasad (PW 4) and Durga
prasad (PW 5) and another. On the 27th of the April, 1972 he inter-
rogated Asharfi (PW 7), Chhotanney (PW 8), Reoti Prasad (PW 9)
and Lalji (PW 10) and accompanied by them he reached the jungle at
D the outskirts of village Daultapur 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 (PW 4) and
Durga Prasad (PW 5). On the 14th of May, 1972 in Village Mudia he
interrogated Ram Autar (PW 3), Ram Sewak (PW 2), Gaua Din (PW
6) and others and submitted the charge sheet on 4th December, 1972.
E
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 ~n 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 he
F 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 ~Y.
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
G 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 imprison-
ment. The four appellants have filed the above criminal appeal against
H this conviction and sentence of the High Court.
BHUPENDRASINGH v. STATEOFUTTARPRADESH [RAMASWAMI,J.] 861

There could be no doubt that an occurrence of type spoken to' by A
~
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 pre-
mises at that place. Ramesh Chander Mishra (PW 15) the Sub Deputy
Inspector of Schools had been authorised to receive the nomination B
papers. He was assisted by the Gram Sewak Ram Verma (CW 1) and
~ Rajendra Prakash (PW 14) 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. PW 2 Ram Sewak as
i

-
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
c
with bullock-cart and the two bullocks in which the deceased and his
party had come to the scene. 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 D
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 sent 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 E
that Gajendra Singh had fallen the victim in such occurrence we are

- unable to agree with the learned counsel that the occurrence had not
taken ·place at all and 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 F
v the view that the prosecution had established that there was an occur-
rence at 10.30 A.M. on 25.4.1972 at the place mentioned by the pro-
secution 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· estab- G
lished the complicity of the first appellant for murder and the appel-
·~
lants for the offence of screening the evidence punishable under
section 201, IPC.

In the FIR, Tarun Kumar (PW 1) had mentioned the names of
the four appellants and the presence of PWs 2 to 6 at the scene of H
862 SUPREME COURT REPORTS (1991) 1 S.C.R.

occurrence. All these· eye witnesses had uniformly stated that they saw
A
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 arid 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
B 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 set:tion 302 read with section 149, IPC. PWs 3 to 6 .~ \

have stated in their evidence that during the course of verbal alterca-
tion between the first accused and the deceased, the first accused shot .1
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 con-
c victed for the substantial offence of murder under section 302 IPC and
sentenced to life imprisonment.

In the FIR though Tarun Kumar, PW 1, has stated that the first Yr
appellant fired at his father first, he had not stated that the bullet hit
D 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 him, all other started firing. My father then fell down
as a result of attack by fire-arms; then others with lathis
E and ballams started assaulting. Seeing this incident, I ran
towards the temple to save my life. 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.""

F 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, PW 1, first went to his village Bibiapur from
G 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
H Investigating Officer only on 14th of May and no explanation was forth-
BHUPENDRASINGHv. STATEOFUTIARPRADESH[RAMASWAMI,J.] 863
....
~··
coming as to why they were not examined earlier. PWs 1and2 did not
A
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 PW 1, Tarun Kumar had not confirmed this either in the FIR
or in his evidence as PW 1. This was also not stated by PW 2 in his B
~ evidence or during investigation as seen from the evidence of PW 17
the investigation officer. PWs 3 and 6 were examined by PW 17 only
after 20 days i.e. on the 14th of May, 1972 th(\ugh their names were
mentioned in the FIR. In the circumstances the contention of the
___...-
- learned counsel for the appellants that the possibility of an improve-
ment 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
c
'--"'( n.ot accept the evidence in so far as it referred to the bullet shot hitting
on the fore-head of the deceased. 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 D
the death. Even in the case of shooting by a rifle unless the evidence
show that particular injury caused by the same and that injury is suffi-
cient 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. E
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 F
~-
', deceased to the ground. There could, therefore, be no doubt that the
shot had cause~ some hurt or injury though we could not predicate
what was the nature of the injury and whether that injury could have
caused the death. In the circumstances 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 G
\.-_ 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 a term of 10 years rigorous imprisonment.

So far as the offence under section 201 IPC is concerned the H
864 SUPREME COURT REPORTS [ 1991] 1 S.C.R.

A 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
B prosecution tried to establish that the accused were carrying body of
Gajendra Singh in the trolley from the statement of PW 7 who said . -4...c
that Chet Ram one of ~he persons who was travelling in the trolley
along with other and who is now dead was saying or shouting that:

"Ga jender Singh had been killed and he would be roasted
and eaten and thrown in the river."
c
And the statement of PW 3 that:

"the people sitting the trolley were talking amongst
themselves and uttering the words 'today we have killed
D and brought a lion'."

But PWs 7 and 8 had not given any such version to PW 17 in their
statements during investigation. PW 9 turned hostile and his evidence
is also worth nothing. PW 10 had stated that Chet Rani said:

E "We have killed Gajendra Singh and brought him on this
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
F 15 or 20 people were travelling in the trolley of a tractor driven by the
first accused 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 and 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
G Chet Ram and no other name. Further though he stated to be a neigh-
bour 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
H analysis and the report of the serologist was that it was not possible to
BHUPENDRASINGH v. STATEOFUTTARPRADESH [RAMASWAMI,J.] 865

~· give any opinion regarding the origin, sex and age. The report had not A
even stated that they were humau 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. B

~
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 bail bonds of appellants 2, 3 and 4 are cancelled.
The first appellant is directed to surrender.

R.N.J. Appeal partly allowed.