RAMVIR versus STATE OF UTTAR PRADESH on 26 October 2018

[2018] 13 S.C.R. 547

RAMVIR

v.

STATE OF UTTAR PRADESH

(Criminal Appeal No. 183 of 2013)

OCTOBER 26, 2018

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Penal Code, 1860 – ss.148, 149 and 302 – Case of theprosecution that the appellant along with five other persons armedwith guns surrounded one ‘S’ and his son and fired shots whereupon‘S’ on receiving injuries fell down and died – Trial Court whileacquitting the appellant of the charges u/s.149, IPC, convicted himu/s.302, IPC – Other five accused persons were acquitted from allthe charges leveled against them – High Court in appeal filed bythe appellant upheld his conviction u/s.302, IPC and furtherconvicted him u/ss. 148/149, IPC – Propriety of – Held: Appellantwas acquitted by the Sessions Judge for commission of offencesfalling u/ss.148/149, IPC – Appellant’s acquittal was not challengedby the State by filing any appeal before the High Court thus therewas no occasion for the High Court to have gone into this questionin appeal filed by the appellant – Five co-accused persons havingalso been acquitted of the charges framed against themu/ss.148/149, IPC, no case was made out against the appellant forhis conviction u/ss.148/149, IPC – Once it was held by the SessionsJudge that all the six accused persons could not be convictedu/ss.148/149, IPC and were accordingly acquitted and no appealhaving been filed by the State against this part of the order, theHigh Court was not justified in convicting the appellantu/ss.148/149, IPC – Further, appellant’s conviction u/s.302, IPC isalso not factually and legally sustainable – Appellant entitled forbenefit of doubt and is acquitted of the charges framed against himu/s.302 r/w ss.148/149, IPC.

Allowing the appeal, the Court

HELD: 1.1 Appellant’s conviction under Section 148/149IPC is not legally sustainable and deserves to be set aside for

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Amore than one reasons. First, the appellant was already acquittedby the Sessions Judge for commission of offences falling underSection 148/149IPC. Also, the appellant’s acquittal was notchallenged by the State by filing any appeal before the High Court.In this view of the matter, there was no occasion for the HighCourt to have gone into this question in an appeal filed by theBappellant as the same had attained finality. Second, in any event,five co-accused persons having also been acquitted of the chargesframed against them under Section 148/149IPC, no case was madeout against the appellant for his conviction under Section 148/149IPC. Once it was held by the Sessions Judge that all the sixCaccused persons could not be convicted under Section 148/149IPC and were accordingly acquitted and no appeal having beenfiled by the State against this part of the order, the High Courtwas not justified in convicting the appellant under Section148/149IPC. Third, as mentioned above, the prosecution hadnamed six accused persons as being the members of “unlawfulDassembly” of which the appellant was one. [Paras 13-17][551-E-H; 552-A-B]

1.2 It is not the case of prosecution that even though thesesix accused persons were acquitted of the charges framed underSection 148/149 IPC, yet there were some more unknown personsEpresent at the time of occurrence with the appellant other thanfive named accused persons and, therefore, the appellant couldstill be convicted under Section 148/149 IPC as a member of anunlawful assembly with such unknown persons notwithstandingthe acquittal of five accused persons. The High Court was notFjustified in convicting the appellant (A-1) for commission of theoffences punishable under Section 148/149 IPC. The convictionunder twin sections is, therefore, not sustainable both on factsand in law and hence deserves to be set aside. [Paras 18, 19][552-C-E]G1.3 Appellant’s conviction under Section 302 IPC isconcerned, the same is also not factually and legally sustainable.There was no evidence to prove that appellant was the author ofthe gun shot which killed ‘S’; Second, the ballistic report (Ex C-1) did not support the prosecution case inasmuch as it opinedthat cartridges fired and recovered from the spot could not haveHbeen so fired from the rifle belonging to the appellant and the third, the alleged rifle was not taken in police custody immediatelyafter the incident but it was surrendered by the appellant in theCourt. In the light of foregoing reasons, the appellant is entitledfor benefit of doubt and hence deserves to be acquitted of thecharges framed against him under Section 302 read with Section148/149 IPC. The appellant is acquitted of the charges forcommission of offences punishable under Section 302 read withSection 148/149 IPC. [Paras 20-23] [552-B-H; 553-A-C]

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 183 of 2013.

From the Judgment and Order dated 28.02.2012 of the High Courtof Judicature at Allahabad in Criminal Appeal No. 1649 of 1983.

S. R. Singh, Sr. Adv., Mangat Prasad, Adarsh Verma, Ms. NamitaChoudhary, Advs. for the Appellant.

Manoj K. Mishra, Pradeep Misra, Advs. for the Respondent.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is filed by theaccused(A-1) against the final judgment and order dated 28.02.2012passed by the High Court of Judicature at Allahabad in Criminal AppealNo. 1649 of 1983 by which the appeal filed by the appellant herein wasdismissed.

2. In short, the case of the prosecution is as follows.

3. On 25.12.1980 around 5 P.M, Siya Ram (deceased) and hisson - Kripal (PW-2) were going to a place called “ Baithak “ in a village- Bishnodi (PS -Patiyali) from their house. When they reached near thehut of one Ram Vilas, the appellant (Ramvir) along with five personsnamely (1) Bhoorey (2) Satya Ram (3) Shaitan Singh (4) Ram Das and(5) Jagdamba Prasad armed with guns/rifles came there and surroundedSiya Ram and fired shots from their guns/rifles. Siyaram on receivinginjuries fell down and succumbed to the injuries.

4. On hearing the noise, Badri (PW-1), uncle of the deceasedalong with co-villagers who happened to be in near proximity with theplace of occurrence rushed to the spot. The appellant (A-1) and fiveother accused persons (A-2 to A- 6) seeing the mob fast approachingtowards them, ran away from the spot by firing gun shots in the air.

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A5. Badri (PW-1) - uncle of deceased lodged FIR (Ex- Ka- 2) onthe next day morning in police station (Patiyali) against six named persons.The investigation was done which resulted in arrest of theafore-mentioned six named persons. The six persons were put to trialfor commission of offences punishable under Section 148/149 read withSection 302 IPC. The prosecution examined eight witnesses whereasBthe defense also examined two witnesses.

6. By Judgment dated 15.7.1983, the learned Sessions Judgeacquitted five accused persons(A-2 to A- 6) out of six, from all thecharges leveled against each of them. So far as the appellant (A- 1) isconcerned, he was also acquitted of the charges under Section 149IPCCbut was convicted for commission of an offence punishable under Section302 IPC. The operative portion of the order reads as under:

“Accused Ramvir(appellant herein) is hereby held guiltyof the offence punishable under Section 302 IPC simpliciterand he is hereby convicted for the same. He is howeverDheld not guilty of offence punishable under Section 149 IPCand he is hereby acquitted of the same.

Accused Bhoorey, Satya Ram, Shaitan Singh, Ramdasand Jagdamba Prasad are not found guilty under Sections148 and 302/149 IPC and they are hereby acquitted.

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They are on bail. Their bail-bonds are hereby cancelledand sureties are discharged. They need not surrender.

Accused Ramvir is also on bail. He shall be taken intocustody herewith. His bail-bonds are hereby cancelled andsureties are discharged.”F

7. It is against this order; the appellant (Ramvir), feeling aggrieved,filed criminal appeal in the High Court of Allahabad. So far as the Stateis concerned, the State did not file any appeal against the part of theorder whereby A-2 to A-6 were acquitted of all the charges, and nor hasthe State filed any appeal against the acquittal of A-1 with respect to theGoffence punishable under Section 149 IPC. To that extent, therefore,the judgment of the Sessions Judge attained finality.

8. By the impugned order, the High Court dismissed the appealand while upholding the appellant’s conviction under Section 302 IPCfurther convicted the appellant for commission of offences punishable H

under Section 148/149 IPC. The operative portion of the High Court’sorder reads as under “Accordingly, we convict the appellant by altering hisconviction from that under Section 302 IPC to Sections 148and 302/149 IPC. We do not intend to inflict any othersentence under both the counts other than that had beenpassed against him by the learned trial Judge.”

9. It is against this order; the appellant (A-1), feeling aggrieved,filed the present appeal after obtaining special leave to appeal in thisCourt.

10. So, two questions arise for consideration in this appeal: First,whether the High Court was justified in upholding the appellant’s (A-1)conviction in so far as it relates to the offence punishable under Section302 IPC and Second whether the High Court was justified in convictingthe appellant under Section 148/149 IPC.

11. Heard Mr. S.R. Singh, learned senior counsel for the appellantand Mr. Manoj K. Mishra, learned counsel for the respondent.

12. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal, set asidethe impugned order, and acquit the appellant of the charges framed underSection 302 read with Section 148/149 IPC.

13. In our considered opinion, so far as appellant’s conviction underSection 148/149 IPC is concerned; the same is not legally sustainableand deserves to be set aside for more than one reasons.

14. First, it is not in dispute that the appellant was already acquittedby the Sessions Judge for commission of offences falling under Section148/149IPC. It is also not in dispute that the appellant’s acquittal wasnot challenged by the State by filing any appeal before the High Court.

15. In this view of the matter, there was no occasion for the HighCourt to have gone into this question in an appeal filed by the accused(appellant herein) as the same had attained finality.

16. Second, in any event, five co-accused persons having alsobeen acquitted of the charges framed against them under Section 148/149IPC, no case was made out against the appellant for his convictionunder Section 148/149 ibid. In other words, once it was held by the A

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ASessions Judge that all the six accused persons could not be convictedunder Section 148/149 ibid and were accordingly acquitted and no appealhaving been filed by the State against this part of the order, the HighCourt was not justified in convicting the appellant under Section148/149IPC.

B17. Third, as mentioned above, it is not in dispute that the prosecutionhad named six accused persons as being the members of “unlawfulassembly” of which the appellant was one.

18. It is not the case of prosecution that even though these sixaccused persons were acquitted of the charges framed under SectionC148/149IPC, yet there were some more unknown persons present at thetime of occurrence with the appellant other than five named accusedpersons and, therefore, the appellant could still be convicted under Section148/149 as a member of an unlawful assembly with such unknownpersons notwithstanding the acquittal of five accused persons.

D19. In the light of afore-mentioned three reasons, we are of theconsidered opinion, that the High Court was not justified in convictingthe appellant (A-1) for commission of the offences punishable underSection 148/149 IPC. The conviction under twin sections is, therefore,not sustainable both on facts and in law and hence deserves to be setaside.E20. Now so far as appellant’s conviction under Section 302 IPC isconcerned, the same is also not factually and legally sustainable forfollowing reasons. At the out set, it is apposite to quote how the HighCourt in Para 15 dealt with the issue in question.

“….Even at the cost of repetition, we want to note thatFthere was no evidence on record suggestive of theinference which was drawn by the learned trial judge againstthe present appellant that he was author of the shot that hitand killed the deceased Siya Ram…”

21. The aforesaid reasoning itself suggests that there was noGevidence to prove that appellant was the author of the gun shot whichkilled Siyaram: Second, the ballistic report (ExC-1) did not support theprosecution case inasmuch as it opined that cartridges fired and recoveredfrom the spot could not have been so fired from the rifle belonging to theappellant and the third, the alleged rifle was not taken in police custodyH

immediately after the incident but it was surrendered by the appellant inthe Court.

22. In the light of foregoing reasons, we are of the view that theappellant is entitled for benefit of doubt and hence deserves to beacquitted of the charges framed against him under Section 302 readwith Section 148/149 IPC.

23. Accordingly the appeal succeeds and is allowed. Impugnedorder is set aside. The appellant - Ramvir (A-1) is acquitted of the chargesfor commission of offences punishable under Section 302 read withSection 148/149IPC. He is, therefore, set at liberty unless required inany other case.

24. Pending application(s), if any, stand dispose of.

Divya Pandey

Appeal allowed.

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