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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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