Allahabad High Court


Allahabad High Court: In an appeal filed by 43 convicts\appellants against the judgment of Special Judge, convicted and sentenced for the offences 120-B, 302, 364, 365, 218, 117 of the Penal Code (‘IPC’), 1860, division bench of Ramesh Sinha and Saroj Yadav, JJ. set aside the said order of conviction for offences under Sections 302, 120-B, 364, 365, 218, 117 IPC. However, convicted the appellants under Section 304 Part I of (‘IPC’) and sentence them to seven years’ rigorous imprisonment along with fine of Rs. 10,000.

The question in this case was, whether ten Sikh youths were killed in encounter by the police personnel/convicts as ten deceased persons were terrorists or whether ten Sikh youths/deceased persons were killed in fake encounter after kidnapping them from the pilgrim’s bus by the police personnel.

The Court said that in a criminal conspiracy, meeting of minds of two or more persons for doing an illegal act is the sine qua non but proving this by direct proof is not possible. Hence, conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. Moreover, it noted that conspiracy being a continuing offence continues to subsist till it is executed or rescinded or frustrated by the choice of necessity.

Further, it was said that the prosecution has failed to prove the facts that the police personnel had kidnapped or abducted 10-11 Sikh persons, and after that by making criminal conspiracy with common intention, bifurcated them in three groups and killed them at three separate places. Thus, the Court rejected that the prosecution had established the fact that the convicts committed criminal conspiracy in the kidnapping, abduction and murder of ten Sikh youths.

The Court said that the claim of the convicts that they killed ten terrorists’ persons in self-defense does not corroborate with the medical evidence, as from perusal of the ante-mortem injuries of four deceased persons out of ten deceased persons, apart from injuries of fire arm, lacerated and abrasion wounds as well as amputation were found on their body.

Thus, the Court opined that the case of the convicts would be covered by Exception 3 to Section 300 of the IPC, which provides that culpable homicide is not murder if the offender, being a public servant, acting for the advancement of public justice, exceeds the powers given to him. by law, and causes death by doing an act which he, in good faith, thinks to be lawful and necessary for the due discharge of his duty without ill-will towards the person whose death he has caused.

The Court said that the act of the convicts in eliminating the terrorists who were involved in various criminal cases of murder, loot, terrorist activities etc. has been demonstrated from the criminal antecedents of some of the deceased, but the convicts have failed to lead any defence against the other deceased that whether they were also involved in such terrorist activities. Thus, the act of the convicts cannot be justified to kill innocent persons along with some terrorist taking them to be also terrorists.

The Court said that there was no ill-will between the convicts and the deceased persons. The convicts were public servants, and their object was the advancement of public justice. No doubt, they exceeded the powers given to them by law, and caused the death of the deceased by doing an act which they, in good faith, believed to be lawful and necessary for the due discharge of their duty. However, the offence committed by them, was culpable homicide not amounting to murder punishable under Section 304 of IPC and not under Section 302 IPC.

[Devendra Pandey v. State of UP, 2022 SCC OnLine All 844, decided on 15-12-22]

Advocates who appeared in this case :

Counsel for Appellant: Advocate Arun Sinha, Advocate Alok Shukla, Advocate Anil Kumar, Advocate Arti Ganguly, Advocate Aseem Goswami, Advocate Atul Verma, Advocate Edward Sam Julius Paul, Advocate Gaurav Shukla, Advocate Hari Krishna Verma, Advocate Hemant Kumar Mishra, Advocate Janardan Singh, Advocate Nagendra Mohan, Advocate Rajendra Prasad Mishra, Advocate Ram Mohan Mishra, Advocate Salil Mohan, Advocate Sanjay Kumar Srivastava, Advocate Saroj Kumar Shukla, Advocate Sheikh Wali-Uz Zaman, Advocate Umesh Chandra Yadav;

Counsel for Respondent: Advocate Rishad Murtaza, Advocate Anurag Kumar Singh, Advocate B. Nath, Advocate Ishan Baghel, Advocate S.B. Pandey, Advocate Vivek Kumar Rai.

*Apoorva Goel, Editorial Assistant has reported this brief.

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