RAM AUTAR Vs STATE OF UP
Bench: DIPAK MISRA,AMITAVA ROY
Case number: Crl.A. No.-001157-001157 / 2016
Diary number: 30531 / 2016
Advocates: J. P. DHANDA Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPE2LLATE JURISDICTION
CRIMINAL APPEAL NO. 1157 OF 2016 (ARISING OUT OF S.L.P (CRIMINAL) NO.8415 OF 2016)
RAM AUTAR & ORS. .…APPELLANT
VERSUS
STATE OF U.P. ....RESPONDENT
J U D G M E N T
AMITAVA ROY, J.
(1) Leave granted.
(2) The appellants hereby assail the affirmation of their
conviction under Sections 147,148, 149 Indian Penal Code (for
short, hereinafter to be referred to as “IPC”) as recorded by the
Trial Court. By the decision impugned, the High Court,
however has altered their conviction from one under Section
302 IPC to Section 304-Part I IPC. Thereby, the appellants now
stand sentenced to undergo rigorous imprisonment for 10 years
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and to pay a fine of Rs.5000/-, in default, to suffer simple
imprisonment for further two months for this offence. All
sentences have been ordered to accrue concurrently.
(3) We have heard Dr. J.P. Dhanda, learned counsel for the
appellants and Mr. Ravi Prakash Mehrotra, learned counsel for
the State.
(4) The genesis of the arraignment is traceable to the
incident that witnessed the deadly assault on Lalni @ Raj
Kumar, the brother of the informant Gaya Prasad, on
04.04.1982 at 1.00 p.m. within the precincts of the house of the
deceased.
(5) As the first information laid at 3.15 p.m. on the same
date would reveal, in the morning thereof, the cattle of the
deceased had strayed into the fields of Suraj Bali and others
and had allegedly destroyed the Arhar crop of the accused
persons. On being abused by them (accused persons), the
deceased herded back the cattle and returned home crestfallen.
While he was sitting in his compound in the afternoon at about
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1.00 p.m. and in the company of the informant his brother,
Gaya Prasad PW-1 as well as Sitaram PW-2 and Ram Sajeewan
@ Dhunna PW-4, altercation broke out between him and the
accused persons including the appellants, who resided next
door, on the same issue. The heated exchanges that followed
escalated tempers, whereupon as per the prosecution, the
appellants along with Suraj Bali and Chandra Bali pounced on
the deceased, in a body. On being exhorted by Suraj Bali to
eliminate the deceased, appellant Deo Munni @ Putti, at his
instance, brought his gun and fired at Lalni. As Lalni fell, being
injured, the other accused persons joined in the assaults with
lathis. The informant and the other two witnesses though
intended to intervene, they were prevented from doing so, by
pointing the gun towards them. Lalni died at the spot.
(6) On the lodgement of the FIR with the police at about 3.15
p.m., as herein before mentioned, case was registered under
Sections 302,147,148 and 149 IPC. In course of the
investigation, inquest on the dead body was conducted and the
sketch map of the place of occurrence was prepared. After the
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charge-sheet was laid against the accused persons, charge was
framed under Section 302, read with Sections 147/149 IPC
against them, they having pleaded “not guilty”. Additionally,
charge under Section 148 also framed against appellant Deo
Munni @ Putti who was armed with gun, as indicated, herein
before.
(7) The prosecution examined as many as six witnesses
including eye witnesses, namely; Gaya Prasad (PW-1), Sitaram
(PW-2), Ram Sajeewan @ Dhunna (PW-4), besides Dr. S.C.
Srivastava (PW-5) and Brahm Dev Singh, Investigating Officer
(PW-6).
(8) On the completion of the prosecution evidence,
statements of the accused persons were recorded under Section
313 Cr.P.C.. They also examined Shyam Lal as their witness
in defence.
(9) The Trial Court, on an exhaustive appreciation of the
evidence on record, convicted all the accused persons under
Sections 302,147,148 and 149 IPC as mentioned therein. They
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were amongst others sentenced to undergo imprisonment for
life for the offence under Section 302 IPC. They were sentenced
as well for the other offences.
(10) As referred to hereinabove, the High Court in appeal
sustained the conviction under Sections 147/148/149 IPC but
moderated the conviction under Section 302 IPC to one under
Section 304-Part I and the sentence therefor was ordained to be
rigorous imprisonment for 10 years and fine of Rs.5000/-, in
default, simple imprisonment for further two months.
(11) The learned counsel for the appellants has assiduously
argued that the prosecution having failed to prove that the
appellants and their co-accused had been the aggressors who
assaulted the deceased and that he succumbed to the injuries
sustained thereby, their conviction and sentence, if allowed to
stand, would signify travesty of justice. According to the
learned counsel, the appellants and the co-accused, while
escorting the cattle of the deceased from the fields to the nearby
cattle pond, were attacked by him and his cohorts, for which
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DW-1 Shyam Lal had to open fire in self defence. Without
prejudice to this, it has been argued that in any view of the
matter, there was no pre-meditation or pre-concert on the part
of the appellants and the co-accused to attack or assault the
deceased and having regard to the incident that had occurred
in the fields earlier in the day, the sentence awarded by the
High Court is unduly harsh and is liable to be appropriately
scaled down in the attendant facts and circumstances.
(12) The learned counsel for the respondent, in refutation,
has urged that it having been proved beyond all reasonable
doubt by unimpeachable testimony of the eye witnesses, Gaya
Prasad (PW-1), Sitaram (PW-2) and Ram Sajeewan @ Dhunna
(PW-4) that the appellants and their co-accused Suraj Bali and
Chandra Bali had formed an unlawful assembly and had with
the intention of eliminating the deceased, had jointly launched
a lethal attack by using, amongst others, a fire arm, the
conviction recorded by the High Court, does not merit
interference. According to him, having regard to the
seriousness of the charges proved, the appellants have been let
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off lightly with the substantive sentence of ten years' rigorous
imprisonment.
(13) We have lent our due consideration to the materials on
record as well as the competing assertions. Noticeably, the
findings on the incident are concluded by concurrent
deductions of the two courts below. This notwithstanding, we
have examined in particular, the evidence of the eye witnesses
Gaya Prasad (PW-1), Sitaram (PW-2) and Ram Sajeewan @
Dhunna (PW-4) as well as that of the Dr. S.C. Srivastava
(PW-5), who had performed the post-mortem examination on
the dead body.
(14) A close scrutiny of the evidence of the eye witnesses
leaves no manner of doubt that not only they have with
noteworthy consistency and cohesion authenticated the case of
the prosecution in all material particulars, they have identified
as well the appellants and their co-accused and also have
provided graphic details of the events in the sequence in which
the same unfolded at the place of occurrence. The testimony of
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the Dr. S.C. Srivastava (PW-5) reveals fire arm wounds on the
head, chest and right upper arm of the deceased together with
the multiple abrasions and contusions on various parts of the
body. According to this witness, death had occurred due to
shock and haemorrhage as a result of the ante-mortem injuries.
(15) Noticeably this witness also referred to lacerated/incised
wounds and contusions sustained by the appellants Deo
Munni, Ram Autar and the co-accused Suraj Bali which,
according to the medical expert, were however simple in nature.
(16) Though an attempt had been made at the trial by the
defence to shift the place of occurrence to fit in with their
version, as offered in course of the statements under Section
313 Cr.P.C., and urged in course of the arguments, the
evidence of the Investigating Officer Brahm Dev Singh (PW-6),
when considered along with the sketch map, Ex. A-12, the
same stands belied. That the place of occurrence was, as cited
by the prosecution is, also corroborated by the blood stained
earth collected therefrom in course of the investigation. That
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the blood was human blood also stands proved by the report
of the chemical analyst. These proved facts, in a way, demolish
the defence version totally in all respects.
(17) Though, at the trial as well as before the High Court, the
prosecution case was sought to be discredited for the absence
of explanation of the injuries suffered by some of the accused
persons, in absence of any evidence forthcoming that at the
relevant time, the deceased was armed or that the prosecution
witnesses present did launch a counter attack, the courts
below rightly dismissed this plea. The High Court, noticing the
injuries, which the Dr. S.C. Srivastava had identified to be
simple in nature, did conclude, had been self inflicted in order
to contrive a defence. Bearing in mind the evidence available
and the overall scenario, this finding, in our estimate, cannot
be repudiated to be absurd or illogical.
(18) In the ultimate analysis, however, one cannot overlook
the progression of events that occurred since the incident of
trespass of the cattle of the deceased in the fields of Suraj Bali
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and others leading to abuse and unpleasantness between them
earlier in the day. The second bout of bickerings precipitated in
the afternoon on the same day while the deceased, appellants
and the co-accused were sitting in their respective compounds,
abutting each other. The witnesses of the incident though, at
the preliminary stages, did advise the deceased to go in and
avoid a brewing confrontation, he obdurately refused to do so
and stoked the growing indignation so much so that eventually
he was shot at and also assaulted by the appellants and their
companions. The materials on record do suggest that the
deceased did also contribute to the escalating tension and in
the process the accused persons jointly unleashed attack on
him by lathis and also shot him. A sudden spurt of irreversible
events thus got triggered thereby.
(19) In the fact situation that developed in quick succession,
we are of the comprehension that there was as such no
pre-meditation or prior concert on the part of the accused
persons to commit murder of Lalni. The incident happened on
the spur of the moment and in an uncontrollable, embittered
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and agitated state of enragement, thus depriving the accused
persons of their power of self control. Though during the
assaults, the accused persons were understandably aware of
the likely results thereof, it is difficult to perceive that they had
any common object of eliminating the deceased. This is more
so as the evidence discloses that the accused-appellants, first
informant as well as the deceased did descend from a common
ancestor and that their grandfathers were real brothers. The
evidence demonstrates that the accused- appellants do not
have any infamous criminal background as well. The incident
had occurred in the year 1982 and as on date, more than three
decades have passed.
(20) On a consideration of the totality of the circumstances
attendant on the case, we are of the opinion that the conviction
of the appellants under Section 304-Part 1 read with Sections
147,148,149 IPC, as recorded by the High Court, is justified.
However, in our view, having regard to the singular facts and
circumstances, we are inclined to reduce the sentence for the
offence under Section 304-Part I/149 IPC to rigorous
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imprisonment for 7 years. The other sentences are hereby
affirmed.
(21) The appeal is thus partly allowed with the above
modifications. The Trial Court would take the necessary follow
up steps to ensure that the appellants serve out the sentence as
awarded.
.............................................J. (DIPAK MISRA)
…...........................................J. (AMITAVA ROY)
NEW DELHI; NOVEMBER 28, 2016.
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