2004 Supreme(SC) 592

2004(3) Supreme 529
SUPREME COURT OF INDIA
(From Allahabad High Court)
K.G. Balakrishnan & B.N. Srikrishna, JJ.
Sahdeo & Ors. -Appellants
versus
State of U.P. -Respondent
Criminal Appeal Nos. 11-13 of 2004
With
Criminal Appeal No. 1 of 2004
Decided on 30-4-2004
Counsel for the Parties :
For the Appellants : Sushil Kumar, Sr. Advocate, S. Muralidhar, Advocate (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 Advocates.
For the Respondent : Pramod Swarup, Ms. Pareena Swarup and Praveen Swarup Advocates.

Headnote:(i) Indian Penal Code, 1860-Sections 147, 148, 395, 397, 452 and 302 r/w 149-Out of eleven accused tried under, five were convicted by Sessions Court and conviction was upheld in appeal-Appeal-Eight deceased persons with PW1 and PW2 along with one person, after attending a murder trial in Sessions Court were returning in bus-Accused-appellants armed with, fire-arms intercepted the bus, boarded it and fired at deceased-Six persons died in the bus and two were chased and killed in a house-PW 1 and PW 2 hid themselves and managed to escape-Serious lapses on part of Investigating Officer as bus in which incident of murder took place was not seized nor its driver and conductor were examined-Though incident happened on 12.1.2000 but eye witnesses were questioned on 27.1.2000-FIR recorded on 12.1.2000 had reached Magistrate on 18.1.2000-Evidence of PW 1 and PW 2 was however convincing and no reason to not to accept it-Medical evidence supported their version showing that deceased were fired from close range-Investigating officer was not asked to explain how delay occurred in sending FIR to Magistrate-Only those accused were convicted who were armed with fire-arms-Conviction could not be interfered with. (Paras 6 to 8)

       (ii) Indian Penal Code, 1860-Section 302/149-Out of eleven accused persons, five convicted by trial Court and were awarded death sentence-High Court upheld conviction and confirmed death sentence-Appeal as regards death sentence-Accused armed with fire-arms had intercepted the bus in which deceased were travelling after attending a murder case in Sessions Court-Eight persons were killed by accused-appellants-No clear evidence by use of whose fire-arm all deceased were killed-No clear and distinct evidence to prove actual overt acts of each accused-In view of the nature and circumstances of case, death sentence was liable to be commuted to life imprisonment.

       Held : 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 those 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 for life. (Para 9)

       (iii) Indian Penal Code, 1860-Section 302/149-Appellant convicted by High Court after setting aside the acquittal-Out of eleven accused five were convicted and six were acquitted by trial Court-In the State appeal out of six acquitted accused, appellant was convicted-Sustainability-Acquittal was based on reason that recovery of country pistol and motor cycle pursuant to his alleged confession was not satisfactorily proved-High Court found that when this appellant had travelled on motorcycle with other convicted accused then non-proving of recovery of motorcycle or fire-arm were of no significance when conviction was with help of Section 149 IPC-View taken by trial Court was a reasonable one-Conviction was liable to be set aside. (Paras 10 and 11)