REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  183  OF 2013

RAMVIR             ….Appellant(s)

VERSUS

STATE OF UTTAR PRADESH          ….Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.

1. This appeal is filed by the accused(A­1) against

the final judgment and order dated 28.02.2012

passed by the High Court of Judicature at

Allahabad in Criminal Appeal No. 1649 of 1983 by

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which the appeal filed by the appellant herein was

dismissed.  

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

follows.

3. On 25.12.1980 around 5 P.M, Siya Ram

(deceased) and his son ­ Kripal (PW­2) were going to

a place called " Baithak " in a village ­ Bishnodi (PS

­Patiyali) from their house. When they reached near

the  hut  of  one Ram Vilas, the  appellant (Ramvir)

along with five persons namely (1) Bhoorey (2) Satya

Ram (3) Shaitan Singh (4) Ram Das and (5)

Jagdamba Prasad armed with guns/rifles came

there and surrounded  Siya Ram and fired shots

from their guns/rifles.   Siyaram on receiving

injuries fell down and succumbed to the injuries.

4. On hearing the noise, Badri  (PW­1),  uncle of

the deceased along with co­villagers who happened

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to be in near proximity with the place of occurrence

rushed to the spot. The appellant (A­1) and five

other accused persons (A­2 to A­ 6) seeing the mob

fast approaching towards them, ran away from the

spot by firing gun shots in the air.    

5. Badri (PW­1) ­  uncle  of  deceased  lodged FIR

(Ex­ Ka­ 2) on the next day morning in police station

(Patiyali) against six named persons. The

investigation was done which resulted in arrest of

the afore­mentioned six named persons. The six

persons were put to trial for commission of offences

punishable under Section 148/149 read with

Section 302  IPC.  The  prosecution  examined eight

witnesses whereas  the defense also examined two

witnesses.  

6. By Judgment dated 15.7.1983, the learned

Sessions Judge acquitted five accused persons(A­2

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to A­ 6) out of six, from all the charges leveled

against each of them.  So far as the appellant (A­ 1)

is concerned, he was also acquitted of the charges

under Section 149IPC but was convicted for

commission of an offence punishable under Section

302 IPC. The operative portion of the order reads as

under:

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

Accused Bhoorey,  Satya  Ram, Shaitan Singh, Ramdas and Jagdamba Prasad are not found guilty under Sections 148 and 302/149 IPC and they are hereby acquitted.

They are on bail.   Their bail­bonds are hereby cancelled and sureties are discharged. They need not surrender.

Accused Ramvir is also on bail.   He shall be taken into  custody  herewith.  His bail­bonds are hereby cancelled and sureties are discharged.”

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7. It is against this order; the appellant (Ramvir),

feeling aggrieved, filed criminal appeal in the High

Court of Allahabad.   So far as the State is

concerned, the State did not file any appeal against

the part of the order whereby A­2 to A­6 were

acquitted of all the charges, and nor has the State

filed any appeal  against the acquittal  of  A­1 with

respect to the offence 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 appeal and while upholding the

appellant's conviction under Section 302 IPC

further  convicted the  appellant for  commission of

offences punishable under Section 148/149 IPC.

The operative portion of the High Court's order

reads as under  

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“Accordingly, we convict the appellant by altering  his conviction from that  under Section 302 IPC to Sections 148 and 302/149 IPC.  We do not intend to inflict any other sentence under both the counts other than that had been passed against him by the learned trial Judge.”

9. It is against this order; the appellant (A­1),

feeling aggrieved, filed the present appeal after

obtaining special leave to appeal in this Court.

10.    So, two questions arise for consideration in

this appeal: First, whether the High Court was

justified in upholding the appellant's (A­1)

conviction in so far as it relates to the offence

punishable under Section 302 IPC and Second

whether the High Court was justified in convicting

the appellant under Section 148/149 IPC.

11. Heard Mr. S.R. Singh, learned senior counsel

for the appellant and Mr. Manoj K. Mishra, learned

counsel for the respondent.

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12. Having heard the learned counsel for the

parties and on perusal of the record of the case,  we

are inclined to allow the appeal, set aside the

impugned order, and acquit the appellant of the

charges framed under Section 302 read with Section

148/149 IPC.

13. In our considered opinion, so far as appellant's

conviction under Section 148/149 IPC is concerned;

the same is not legally sustainable and deserves to

be set aside for more than one reasons.  

14. First, it is  not in  dispute that the  appellant

was already acquitted by the  Sessions  Judge for

commission of offences falling under Section

148/149IPC. It is also not in dispute that the

appellant's acquittal was not challenged by the

State by filing any appeal before the High Court.  

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15. In this view of the matter, there was no

occasion for the High Court 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 co­accused persons

having also been acquitted of the  charges  framed

against them under  Section 148/149IPC,  no case

was made out against the appellant for his

conviction under Section 148/149  ibid. In other

words, once it was held by the Sessions Judge that

all the six accused persons could not be convicted

under Section 148/149  ibid  and were accordingly

acquitted and no appeal having been  filed by  the

State against this part of the order, the High Court

was not justified in convicting the appellant under

Section 148/149IPC.

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17. Third, as mentioned above, it is not in dispute

that the prosecution had named six accused

persons as being the members of "unlawful

assembly" of which the appellant was one.

18. It is not the case of prosecution that even

though these six accused persons were acquitted of

the charges framed under Section 148/149IPC, yet

there were some more unknown persons present at

the time of occurrence with the appellant other than

five named accused persons and, therefore, the

appellant could still be convicted under Section

148/149 as a member of an unlawful assembly with

such unknown persons notwithstanding the

acquittal of five accused persons.  

19. In the light of afore­mentioned three reasons,

we are of the considered opinion, that the  High

Court was not justified in convicting the appellant

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(A­1) for commission of the offences punishable

under Section 148/149 IPC. The conviction under

twin sections is, therefore, not sustainable both on

facts and in law and hence deserves to be set aside.

20. Now so far as appellant's conviction under

Section 302 IPC is concerned, the same is also not

factually and legally sustainable for following

reasons.  At the out set, it is apposite to quote how

the High Court in Para 15 dealt with the issue in

question.

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

21. The aforesaid reasoning itself suggests that

there was no evidence to prove that appellant was

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the author of the gun shot which killed Siyaram:

Second, the ballistic report (ExC­1) did not support

the  prosecution case inasmuch  as it opined that

cartridges fired and recovered from the spot could

not have been so fired from the rifle belonging to the

appellant  and  the third, the  alleged  rifle  was not

taken in police custody immediately after the

incident but it was surrendered by the appellant in

the Court.

22. In the light of foregoing reasons, we are of the

view that the appellant is entitled for benefit of

doubt  and  hence  deserves to  be  acquitted  of the

charges framed against him under Section 302 read

with Section 148/149 IPC.  

23. Accordingly the appeal succeeds and is

allowed. Impugned order is set aside.     The

appellant ­ Ramvir (A­1) is acquitted of the charges

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for commission of offences punishable under

Section 302 read with Section 148/149IPC. He is,

therefore, set at liberty unless required in any other

case.

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

      ………..................................J. [ABHAY MANOHAR SAPRE]

………...................................J. [INDU MALHOTRA]

New Delhi; October 26, 2018.

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