JUDGMENT Rakesh Tiwari,J. Both these appeals arise out of judgment and order dated 21.10.1983 passed in S.T. No. 208 of 1983, State Vs. Rajvir and others, by which IIIrd Additional Sessions Judge, Etah has acquitted all the accused respondents of the charges punishable under section 148,302/149,201,307/149 IPC. Accused Ram Pal, Puttu, Ram Swarup and Rustam Singh have been convicted under section 364 IPC and sentenced to seven years' R.I. thereunder. 2. State of U.P. has preferred Govt. Appeal No. 334 of 1984 challenging acquittal of the accused persons under section 148,302/149,201,307/149 IPC whereas accused Ram Pal, Puttu, Ram Swarup and Rustam Singh have filed Criminal Appeal no. 2545 of 1983 against their conviction and sentence under section 364 IPC. 3. We have heard Mrs. Usha Kiran, learned A.G.A. for the appellant-State and Sri V.P. Srivastava, learned senior counsel assisted by Sri Ranjay Kumar for the accused respondents and perused the record. 4. Briefly stated the prosecution story is that on 5.12.1982 a feast was going on in regard to Terahwi ceremony of Kayam Singh, son of complainant Latoori Singh at the house of complainant in which several relations and village people had gathered. Since all the earthen cups (Sakora) were used of, complainant's son Netra Pal, his nephew Abhilakh, Bhanwar Pal, Om Prakash and Jaswant at the time of sun set proceeded for bringing fresh earthen cups from the house of Jangali, a Potter by profession. When these persons reached infront of the house of accused Rajvir, he with Mahi Pal, Mahavir Singh, Rajendra, Ram Gopal, Ram Pal, Satish, Rustam Singh, Ram Swarup and Puttu Taili fired at Abhilakh and Netra Pal from their guns and countrymade pistols from the house, as a result of firing Abhilakh and Netra Pal died on the spot due to fatal injuries sustained by them. The accused persons then dragged the dead bodies of Abhilakh and Netra Pal in the house of Rajvir. In the meantime, after hearing the gun shot fire and cries of Bhanwar Pal, Jaswant and Om Prakash, complainant Latoori Singh, his son Sahib Singh and his brother Rukum Singh reached near the house of Rajvir, whereupon accused Ram Gopal, Mahi Pal, Rajendra and Satish again fired shots from their guns at them. In the meantime, after hearing the gun shot fire and cries of Bhanwar Pal, Jaswant and Om Prakash, complainant Latoori Singh, his son Sahib Singh and his brother Rukum Singh reached near the house of Rajvir, whereupon accused Ram Gopal, Mahi Pal, Rajendra and Satish again fired shots from their guns at them. The accused persons thereafter dragged the dead bodies of Netra Pal and Abhilakh from the house of Rajvir upto the potato crop field of Satya Narain and further carried the bodies towards the site of the pond of village. The two murders were said to have been committed due to old enmity and on account of several criminal cases still pending between their families. Proceedings under section 107/116,Cr.P.C. were also launched against the accused persons at the instance of the complainant side but the accused party had obtained a compromise from the complainant and Abhilakh under coercion. 5. First information report of the incident was lodged by Latoori Singh on the same day at 9.20 P.M. at Police Station Saket, which is at a distance of about 6 miles from the place of incident. 6. It may be pointed out here that dead bodies of deceased Netra Pal and Abhilakh were never recovered and therefore postmortem examination could not be done on their cadaver. After investigation, charge sheet was submitted against the accused respondents. Charges under section 148,302/149,201,307/149 IPC were framed against them, which they denied and claimed to be tried. 7. The prosecution in order to prove its case, examined P.W.1- Latoori Singh-complainant, P.W.2- Jaswant-eye witness and P.W.3- Jagdish Singh Rawat-investigating Officer. The prosecution also tendered report of Chemical Examiner and Serologist in evidence, who found human blood on piece of door frame, ladies chappal, pieces of bricks, shoe and leaves of potato crop and disintegrated blood on earth. In the opinion of Chemical examiner, blood on pieces of wooden frame, chappal and pieces of bricks was human blood of 'O' type but could not determine group of blood on sheo and leaves as the blood stains were not sufficient on these articles. 8. As stated earlier, the trial court has acquitted all the accused persons of the offence u/s 148,302/149,201,307/149 IPC but convicted accused Ram Pal, Puttu, Ram Swarup and Rustam Singh under section 364 IPC and sentenced them to seven years' R.I. thereunder. 9. 8. As stated earlier, the trial court has acquitted all the accused persons of the offence u/s 148,302/149,201,307/149 IPC but convicted accused Ram Pal, Puttu, Ram Swarup and Rustam Singh under section 364 IPC and sentenced them to seven years' R.I. thereunder. 9. Accused Mahipal Singh, Rajendra, Ram Gopal, Puttu and Rustam have died during pendency of the appeal, hence the appeal stands abated as against them. Rest of the accused persons are alive, out of whom, accused Rampal and Ram Swarup have been convicted u/s 364 IPC and the remaining have been acquitted. 10. Learned counsel for the accused has argued that there is no eye witness of the incident. It is only after hearing shots that persons from the family of the deceased reached at the spot and saw the accused persons dragging bodies inside the house of Rajveer and then some shots were fired inside the house. Thereafter the accused persons were again seen dragging the bodies of the deceased to the potato crop field of Satya Nagain, from where the bodies were taken to the site of pond of the village. It is vehemently argued that dragging of the dead bodies in itself is not an offence. According to the eye witnesses, the accused persons were seen dragging the dead bodies inside the house and thereafter bodies were dragged upto potato crop field of Satya Narain, from where to the pond of the village. According to him, therefore, offence under section 364 IPC is not made out in so far as accused Ram Pal, Puttu, Ram Swarup and Rustam Singh are concerned. Hence, the court below has committed an illegality by convicting these persons under section 364 IPC. 11. Per contra, learned A.G.A. has submitted that there is an ocular witness namely Jaswant P.W. 2 who had seen the accused persons opening fire upon Netra Pal and Abhilakh ( both since deceased). They were dragged inside the house of accused Rajvir by Ram Pal, Puttu, Ram Swarup and Rustam Singh. He submits that since Netra Pal and Abhilakh were grievously hurt and had fallen down on spot because of injuries received by firing by the accused, they were motionless, hence impression of the persons who were standing at a distance was that they have died. He submits that since Netra Pal and Abhilakh were grievously hurt and had fallen down on spot because of injuries received by firing by the accused, they were motionless, hence impression of the persons who were standing at a distance was that they have died. Both Netra Pal and Abhilakh were carried to the house of accused Rajveer , from where shots had been heard which shows that Netra Pal and Abhilakh were alive when they were dragged inside the house. After ensuring that they have died, the accused persons then carried their bodies again towards potato crop field of Satya Narain and thereafter to the pond. Bodies of the deceased persons were not recovered, hence neither any postmortem could be conducted on their cadaver nor there is any other evidence with regard to the injuries or otherwise, that they were alive or dead when they were carried towards the pond. 12. We have heard learned counsel for the parties and perused the record. 13. From the reading of FIR, it appears that Netra Pal, son of complainant-Latoori Singh, his nephew Abhilakh, Bhanwar Pal, Om Prakash and Jaswant were going together to purchase fresh Sakoras and when they reached house of Rajveer, then accused Rajveer, Mahipal Singh, Mahavir Singh, Rajendra, Ram Gopal, Rampal, Satish, Rustam Singh, Ram Swarup and Puttu Taili came out from the house opening fire at them. Netra Pal and Abhilakh were ahead of the rest persons, hence they were shot down. This shows that other persons going alongwith Netra Pal and Abhilakh, had witnessed the incident as they were just behind them. Motive is the enmity which has come out in the statement of P.W.1- Latoori Singh who stated that a case for committing murder of Santosh son of accused Rustam Singh, had been lodged in police station Kurawali, district Mainpuri against Netra Pal, in which Netra Pal had been convicted u/s 302 IPC and sentenced to 20 years imprisonment and he was on bail. He has also stated that accused Rustam Singh, Satish, Mahipal and Dhan Singh had threatened him for life. He has also stated that accused Rustam Singh, Satish, Mahipal and Dhan Singh had threatened him for life. Regarding the incident, he has stated that after hearing noise, he alongwith others ran towards it and when they reached near house of Rajveer Singh, then Jaswant, Om Prakash, Bhanwar Pal were standing in the lane in the western side and they told him that his son Netra Pal and Abhilakh have been killed by the accused persons and they have taken their bodies inside the house of Rajveer Singh. Relevant portion of the statement of Latoori Singh in this regard, reads thus : ^^bu yksxks ds tkus ds rqjUr ckn gh gekjs xako ds jktohj ds edku ds ikl ls tks iwjc esa gS Qk;jksa dh vkokt vkrh lquk;h nh vkSj vknfe;ksa dk 'kksj lqukbZ iM+kA eS] esjk HkkbZ : de flag vkSj esjk yM+dk lkgc flag rqjUr gh ykfB;ak ysdj m/kj dks Hkkxs tgak ls vkokts vk jgh Fkh vkSj esjs cPps Hkh HkkxsA tc ge jktohj ds edkuds ikl igqps rks jktchj ds edku ds ifPNe rjQ] xyh esa tloUr falg vkse izdk'k] Hkojiky [kM+s Fks bu yksxksa usgesa crk;k fd rqEgkjs yM+ds o vfHkyk[k ds : Lre flag] lrh'k] eghiky] egkohj (sic) jkeiky] jkexksiky] iqRrw] jkeLo: i vkSj jktohj us tku ls ekj fn;k gSA vkSj bu nksuks dh yk'ks jktohj ds ?kj esa dks [khp ys x,sA^^ bl ij eSus dgk fd jktohj ds ?kj ij pyksA tc ge 6yksx jktohj ds edku ij igqaps rks lrh'k] eghiky] jktsUnz o jkexksiky jktohj ds vakxu es ekStwn feysA buesa ls gj ,d ds ikl ,d ,d cUnwd FkhA buyksxksa us gesa ns[kdj ge ij Qk;j dj fn;sA ge 6 yksx cpdj bUlisDVj ds edku dh nhoky dh vkM+ esa gks x,A gesa Qk;j dh pksVsa ugh yxhA blds ckn : Lre vkSj jkeiky eqyfteku us vfHkyk[k dh yk'k dks ,d ,d Vakx vius ,d ,d gkFk esa idM+ yh vkSj vius nwljs gkFk esa og ,d ,d reapk fy, jgsA us=iky dh yk'k dks ,d ,d Vakx ,d ,d gkFk ls jkeLo: i] iqRrw idM+s gq, o nwljs gkFk esa ,d ,d reapk fy;s gq, [khaprs gq, jktohj ds edku ls fudysA bl izdkj nksuksa yk'kksa dks [khprs gq, ;s yksx jktohj ds edku ls iwjc rjQ o xako dh nf{k.k rjQ lMd ij ys x;sA ckdh eqyftekulkFk lkFk pyrs jgsA fQj nksuks yk'kksa blh izdkj [khprrs gq,s lR; ujk;u ds vkyw ds [ksr esa ys x;s tgak V;wcsy Hkh yxk gSA geyksx ywdrs fNirs ihNs ihNs lR; ujk;u ds V;wo osy ij igqapsA ml oDr va/ksjk gks x;k FkkA o Mj dh otg ls geyksx 6 yksx eqyfteku dks yk'kksa ds ikl NksM+dj vius ?kj ykSV vk,sA^^ 14. The aforesaid statement strengthens the facts narrated in the FIR that Jaswant, Om Prakash and Bhanwar Pal who had accompanied the deceased, had seen the incident. The aforesaid statement strengthens the facts narrated in the FIR that Jaswant, Om Prakash and Bhanwar Pal who had accompanied the deceased, had seen the incident. Therefore, contention of the learned counsel for accused that there was no eye witness to the incident, does not stand to reason. 15. Not only from the FIR but also from the statement of Latoori Singh, prosecution version is supported that accused persons had opened fire upon the deceased killing them. 16. P.W.2 Jaswant, an eye witness, also in his statement stated that when they were going to purchase Sakoras, Netra Pal and Abhilakh were about 8 to 10 steps ahead to them and when they reached house of accused, then Rajendra, Hamipal, Ram Gopal and Satish armed with guns and rest armed with countrymade pistols, fired upon Abhilakh and Netra Pal which hit them. They fell down due to injuries and thereafter their bodies were taken inside the house of accused Rajveer Singh by the accused persons. On making hue and cry by these witnesses, Latoori Singh, Rukam Singh, Sahab Singh came on the spot, whom they narrated the incident. On this, Latoori Singh and others expressed their intention to go inside the house of Rajveer Singh and look into the matter. When they reached the door, then accused Rajendra, Ram Gopal, Satish and Mahipal with their weapons opened fire upon them forcing them to take cover behind the house of Inspector and from there they saw that Ram Swarup Taili and Puttu Taili carrying body of Netra Pal while Rustam and Ram Pal carrying body of Abhilakh by catching one leg of the body in one hand and Tamancha in another hand, came out of the house and they went towards east of the house of Rajveer Singh and thereafter went to potato crop field of Satya Narain toward south. The witness alongwith Latoori Singh and others followed the accused persons upto the tubewell of Satya Narain but they could not do anything due to fear. There the sun set and these persons came back to their house. The witness alongwith Latoori Singh and others followed the accused persons upto the tubewell of Satya Narain but they could not do anything due to fear. There the sun set and these persons came back to their house. Relevant extract of the statement of P.W.2 Jaswant is thus : ^^vkt ls 10&10&1@2 eghus igys lwjt fNius djhc ikSu igys eS yVwjh oknh ds edku ij ekStwn Fkk D;ksafd yVwjh ds yM+ds dk;e flag dh rsjoh dh nkor FkhA dkQh yksx bl Hkkst es 'kkfey gq;s FksA fQj ldksjksa dh deh iM+ x;hA us=iky vkSj vfoyk[k ls dgk fd ldksjs taxkyh dqEgkj ls tYnh ys vkvksA bl ij ;g nksuks vkSj muds lkFk eS] HkWOkjiky vkSj vkSdkj izdk'k yVwjh ds edku ls iwjc dh rjQ dkss gksrs gq, taxkyh ds edku dks py fn;s ml le; vfoyk[k vkSj us=iky ge rhuksa ls 8&10 dne vkxs FksA tc vfHkyk[k vkSj us=iky jktohj eqyfte ds edku ds lkeus xyh es igqps rks mijksDr nlksa eqyfteku gkftj vnkyr jktohj ds edku ls fudysA buesa ls jktsUnz] eghiky] jkexksiky] o lrh'k ij canwds ckdh lc ij uktkbZt reaps FksA bu lc eqyfteku usvius vius gfFk;kjksa ls vfoyk[k vkSj us=iky ij Qk;j dj fn, tks muds yxs vkSj os Qk;j [kkdj ogh fxj x;s vkSj oks ej x;sA ckdh rhuks us 'kksj epk;kA eqyfteku vfoyk[k vkSj us=iky dh yk'ksa jktohj ds edku ds vUnj ys x, vkSj yk'ksa vakxu esa Mky nhA fQj gekjs 'kksj Ikj yVwjh flag] : de falg] lkgc flag ekSds ij mlh jkLrs ls vk,s ftlls og igqaps FksA eSus bu rhuks dks fdLlk crk;k rks bu yksxksa us dgk fd pyksa jktohj ds edku ds vUnj pydj ns[krs gSaaaA tks ge lc yksx jktohj ds [kqys njokts ij igqaps rks ns[kk fd jktsUnz] jkexksiky] lrh'k o eghiky vius vius gfFk;kjks ls ,d ,d Qk;j dj fn;k ge yksx gVdj bUliSDVj ds edku dh QkVd dh vkM+ ysdj [kM+s gks x;sA brus esa geus ns[kk fd jkeLo: i rsyh o iqRrw rsyh us=iky dh yk'k dh ,d ,d Vakx idM+s o nwljs gkFk esa ,d ,d reaps fy, o : Lre o jkeiky eqyfteku vfoyk[k dh yk'k dh ,d ,d Vakx idM+s vkSj nwljs gkFk esa ,d ,d reapk fy, jktohj ds edkuls fudys muds lkFk ckdh 6 eqyfteku Hkh FksA bl rjg yk'kksa dks ?klhVrs gq;s 10 eqyfteku jktohj ds edku ds iwjc dks ys x;s fQj nf{k.k dh rjQ dks eqM+dj lR;ujk;u ds vkyw ds [ksr esa ys] x;sA geyksxks us bUliSDVj ds edkudh vkM+ ls fudy dj lR; ujk;u ds V;wo osy rd eqyfteku dk ihNk fd;kA [kkSQ dh otg ls u dqN dj ik;s vkSj u cksy ik;asA fQj fnu fNi x;k va/ksjk gks x;kA fQj eSa vkSj yVwjh vkSj : de falg] lkgc flag] vkSdkj izdk'k vius vius ?kjksa dks ykSV x;sA^^ 17. The aforesaid evidence shows that witnesses to the incident namely Jaswant, Om Prakash and Bhanwar Pal were at the scene of the incident from the very beginning till the end. One of the witnesses Jaswant who has been examined by the prosecution has also narrated the facts and the manner in which murder of Netra Pal and Abhilakh has been carried out by the accused persons. 18. In the facts and circumstances aforesaid, in our considered view, the case in hand is not a case only of dragging or taking away of the dead bodies but a clear case of murder and thereafter disposing of the bodies of Netra Pal and Abhilakh. 19. One thing is also clear from the aforesaid statement of Jaswant-eye witness that accused persons had taken away body in their courtyard inside house of Rajveer Singh. If Netra Pal and Abhilakh had died on roadside when fire was opened by the accused, there was no occasion for the accused persons to have taken their bodies inside the house of Rajveer Singh and then coming out firing carrying the dead bodies. It cannot be ruled out that Netra Pal and Abhilakh though had fallen on account of fire arm injuries, they were not dead, hence they were taken away inside the house to confirm whether they have died and only after they were confirmed, they have disposed of their bodies. In so far as the witnesses are concerned, it is to be remembered that the Sun was setting and therefore from a distance injured Netra Pal and Abhilakh might have looked dead to them. In any case, it is evident from the statement of the witness that Netra Pal and Abhilakh were shot by the accused persons. The accused persons were known to them and therefore there is no question of any mis identity. 20. In the circumstances, we are not impressed by the argument of the counsel for accused that accused were only dragging the dead bodies of Netra Pal and Abhilakh. Even otherwise removing the bodies from the place of incident by the accused and the same having not been found, make out a strong case against the accused persons that they had caused disappearance of the dead bodies and removed the evidence of committing murder by them. 21. Even otherwise removing the bodies from the place of incident by the accused and the same having not been found, make out a strong case against the accused persons that they had caused disappearance of the dead bodies and removed the evidence of committing murder by them. 21. In the facts and circumstances of the case, we find accused Rajvir, Ram Pal, Mahavir Singh, Satish and Ram Swarup guilty of the offence under section 302/149 IPC and they are accordingly sentenced to life imprisonment thereunder. Accused Rajvir, Ram Pal, Mahavir Singh, Satish and Ram Swarup shall be taken into custody and sent to jail to serve out the sentence. The impugned judgment and order is modified to the above extent. 22. In the result, Govt. Appeal No.334 of 1984 stands allowed. Criminal Appeal no. 2545 of 1993 is dismissed. Let copy of this judgment be sent to the court concerned forthwith for compliance.