Ram Karan Arya vs State of U.P.

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 2071 of 2017
A.F.R.
Judgment reserved on 18.09.2026
Judgment delivered on 16.10.2026
Ram Karan Arya
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s) : Akhilesh Tripathi, Chandra Kesh Mishra,
Chandrakesh Mishra, Daya Shankar
Mishra(Senior Adv.), Daya Shanker
Mishra, Dr. Akhilesh Kumar, Ravindra
Prakash Srivastava, Sameer Srivastava,
Saurabh Gour, Sheshadri Trivedi, Sr.
Advocate, Yogesh Kumar Srivastava
Counsel for Respondent(s) : G.A., Karunesh Pratap Singh, Shailendra
Kumar Pandey
With
GOVERNMENT APPEAL No. - 655 of 2024
State of U.P.
.....Appellant(s)
Versus
Ram Ujagir And 7 Others
.....Respondent(s)
Counsel for Appellant(s) : G.A.
Counsel for Respondent(s) : Chandrakesh Mishra
Court No. - 29
HON'BLE SIDDHARTHA VARMA, J.
HON'BLE JAI KRISHNA UPADHYAY, J.
(Per : Jai Krishna Upadhyay, J.)
1. Since these appeals (criminal appeal and government appeal) arise out of
same case crime number, they have been heard together and are being

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decided by a common judgment and order. Criminal Appeal No. 2071 of
2017 is being treated as a leading case.
Heard Shri Daya Shankar Mishra, learned Senior Advocate assisted by
2.
Shri Chandra Kesh Mishra and Shri Sameer Srivastava, learned counsel for
the appellant and Sri Manish Goyal, learned Additional Advocate General
for the State assisted by Sri Rupak Chaubey, learned AGA. Sri Karunesh
Pratap Singh, Advocate was heard for the informant.
The trial against accused persons Ram Karan Arya, Ram Ujagir, Om
3.
Prakash, and Usman alias Yusuf for offences under Sections 147, 148, 149,
302, 504, 506 IPC was committed in Sessions Case No. 91 of 1995 and
against accused persons Amarchand, Santram, Sundar and Banarasi Prasad
for offences under Sections 147, 148, 149, 302, 504, 506 IPC was committed
in Sessions Case No. 38 of 2009 to the Sessions Court by the then Chief
Judicial Magistrate, Basti. During the trial, accused Sundar passed away, and
proceedings against him was abated. Both the trials were consolidated and
decided by a common judgment by the trial court.
4. The validity and sustainability of the judgment and order dated 10.4.2017
passed by the Sessions Judge, Basti in Sessions Trial No.91 of 1995 (State
Vs. Ram Karan Arya and others) arising out of Case Crime No. 857 of 1994
under Sections 147, 148, 149, 302, 504, 506 IPC, Police Station Kotwali,
District Basti has been challenged by way of instant criminal appeal
whereby the appellant Ram Karan Arya was convicted and sentenced to
undergo imprisonment for life under Section 302 IPC with a fine of Rs. 20
,000/-, to undergo one year rigorous imprisonment under Section 504 IPC
with a fine of Rs. 1,000/- and to undergo three years rigorous imprisonment
under Section 506 IPC with a fine of Rs. 2,000/-.
All sentences were directed to run concurrently with default clause.
5.
The aforesaid Government Appeal has been filed on behalf of the State
6.
challenging the aforesaid impugned judgment and order dated 10.4.2017
whereby the accused Ram Ujagir, Om Prakash, Usman @ Yusuf,
Amarchand, Santram, Ram Pyare, Constable A.P. 88 Rupendra Kujur and
Banarsi Prasad had been acquitted of the charges.
The prosecution story, in brief, as unfolded by the informant Jaibaks Pal
7.
son of Ompal, resident of Village Bharwaliya, Police Station Lalganj,
District Basti in the First Information Report (in short 'FIR') is that the
informant's cousin brother Shambhu Sharan Pal was driving his Jeep No.
U.R.Y.-1640. On 23.11.1994 at around 12:00 noon, they along with
Shambhu Sharan were going to attend a farmer assembly organized by Sadar

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MLA Jagdambika Pal at Walterganj. When they stopped their vehicle on the
left side in front of Dinesh Pal's flour mill (chakki) at Tehsil Colony before
the gate of Awas Vikas, MLA Nagar Purv Ram Karan Arya coming from
behind in his Jeep No. 84B/31288N came in front and stopped his jeep.
Along with him, Om Prakash, Santram, Ram Ujagir, Amar Chand and three-
four other shadows Rampyare etc., armed with weapons, got down and
surrounded Shambhu Sharan's jeep. Ram Karan Arya abused Shambhu
Sharan and said, "You bloody Congressman, driving the vehicle with a flag
and writing 'Pal' on it and hitting my vehicle, have you lost your mind, why
did you hit my vehicle ?" Shambhu Pal also uttered some harsh words,
whereupon Ram Karan became extremely angry and said, "Kill the bloody
fool," and himself snatched a gun from his companion and aimed it.
Santram, Rampyare, etc., surrounded with their weapons and with intention
to kill, MLA Ram Karan Arya fired a shot, due to which Shambhu Sharan
fell down bleeding profusely. When they tried to save him, the accused
threatened to shoot them and brandishing their respective weapons went
away towards the west while abusing and threatening. They took Shambhu
Sharan to the Sadar Hospital but the doctor declared him dead. The incident
was witnessed by Satyawan etc.
8. On the basis of the written complaint Ext. Ka-1, on the same day at 1:10
p.m. at Police Station Kotwali Basti, chik FIR Ext. Ka-3 was registered
against the accused as Crime No. 857 of 1994 under Sections 147, 148, 149,
302/34, 504, 506 IPC. G.D. entry was also made on the same day and the
carbon copy whereof is Ext. Ka-5.
9. Investigation of the case was initially handed over to Sub-Inspector
Shrikant Singh. He recorded the statement of the informant and prepared the
Inquest Report (Panchayatnama) of the deceased. At the time of inquest, a
blood-stained 12 bore wad (tikuli) was recovered from the wound on the
right side of the deceased's neck, a memo whereof was prepared and the wad
was sealed. Apart from this, Photo lash, letter to District Magistrate, letter to
Chief Medical Officer, Basti and Police Form No. 13 for R.I. were prepared.
The body was sealed, sample seal was prepared and sent for postmortem
along with all papers.
10. Postmortem on the body of deceased Shambhu Sharan Pal was
conducted on 23.11.1994 by Dr. S.S. Dwivedi, Medical Officer, District
Hospital Basti, and Dr. G.C. Singh Arora, T.B. Clinic Basti, and Postmortem
Report Ext. Ka-2 was prepared.
On 23.11.1994 itself the Investigating Officer arrested accused Ram
11.
Ujagir and Om Prakash from District Hospital Basti, recorded their
statements, recovered Jeep No. 84B/31288N and prepared its memo. On the

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same day, he went to the spot along with the Inspector In-charge, where the
informant was also met and upon pointing out of the informant and in the
presence of Inspector In-charge, inspected the spot and prepared site plan
Ext. Ka-14. He took into possession blood-stained soil and simple soil from
the spot, sealed them in separate boxes and prepared memo Ext. Ka-15.
Thereafter, investigation of the case was taken over by Inspector In-charge
Pawan Kumar Singh himself. On 24.11.1994, he arrested accused Ram
Karan Arya in Utraula, District Gonda. He verified the statement of the
informant and recorded the statements of witnesses Rakesh Chandra @
Parmeshwar Pal, Satyawan, Shatrughan Pal and Bhawani Pal and prepared
site plan Ext. Ka-18 of recovery of the vehicle Jeep No. 84B/31288N used in
the murder. He recovered the gun used in murder along with nine live
cartridges and one empty cartridge, prepared recovery memo Ext. Ka-20 and
also site plan Ext. Ka-19 of the place of recovery. The Investigating Officer
recorded statements of other witnesses and completed investigative work.
On 26.12.1996 submitted Charge Sheet Ext. Ka-24. Cognizance was taken
by the court having jurisdiction upon the charge sheets submitted against the
accused. The case of Ram Karan, Om Prakash and Ram Ujagir was
committed to the Sessions Court on the basis of which Sessions Trial No. 91
of 1995 was registered. The case of accused Amarchand, Ram Pyare Prasad,
Const. A.P. 88 Rupendra, Const. A.P. 26 Sundar, Const. A.P. 185 Banarasi
Prasad was committed to the Sessions Court by the order dated 11.2.2009 of
the then Chief Judicial Magistrate, on the basis of which Sessions Trial No.
38/2009 was registered.
Accused appeared before the Sessions Court. In Sessions Trial No. 91 of
12.
1995, charges were framed against accused Ram Karan Arya on 09.01.2007
under Sections 148, 302, 504, 506 IPC, against accused Ram Ujagir and
Usman on 09.01.2007 and against accused Om Prakash on 12.02.2007 under
Sections 147, 302/149, 504, 506 IPC and against accused Ram Ujagir,
Usman and Om Prakash on 24.09.2014 under Section 148 IPC. Accused
persons denied the charges and claimed their trial.
13. To bring home the charges against the accused, the prosecution
produced in all ten witnesses in oral evidence. They are P.W.-1 Jaibaks Pal
(Informant), P.W.-2 Parmeshwar Pal, P.W.-3 Satyawan Pal, P.W.-4 Om
Prakash Singh, P.W.-5 Dr. S.S. Dwivedi, P.W.-6 Head Constable. Kapildev,
P.W.-7 Vishwanath Tiwari, P.W.-8 Sub-Inspector Shrikant Singh, P.W.-9
Inspector Brijmohan and P.W.-10 Inspector Pawan Kumar.
14. In documentary evidence, Ext. Ka-1 to Ext. Ka-24 were proved.
15. The incriminating evidence and circumstances were put to the accused
persons under Section 313 Cr.P.C. wherein they claimed the entire

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prosecution evidence as false and fabricated and stated that they were falsely
implicated due to political rivalry, witnesses gave false statements. Accused
Ram Karan Arya stated that because he belongs to Dalit community and
fights for them, the then MLA Sadar Basti Jagdambika Pal harbored malice,
due to which he was falsely implicated.
In defence, D.W.-1 Imtiyaz, D.W.-2 Mehdi Hasan, D.W.-3 Hasan
16.
Mohammad, D.W.-4 Anil Singh, D.W.-5 Ashutosh Kumar Shukla, and
D.W.-6 Major S.B. Singh, Commander Vehicle and Depot Chhewoki
Allahabad were produced and examined.
Jaibaks Pal (Informant) stated that he along with Shambhu
17. P.W.-1
Sharan Pal, Satyawan Pal, Gudhun alias Parmeshwar Pal were coming in
Jeep No. U.R.Y.-1640 to participate in Jagdambika Pal's rally in Walterganj.
The jeep belonged to Shambhu Sharan Pal, which was driving by himself.
When they reached near the Awas Vikas intersection between the saw mill
and Ashok Shukla's house, MLA Ram Karan Arya's vehicle was seen
coming at high speed from the direction of Company Bagh intersection. Ram
Karan suddenly stopped his vehicle right in front of Shambhu Sharan Pal's
jeep. Shambhu Sharan Pal also applied brakes to stop his vehicle suddenly
but his jeep's brakes failed, due to which the corner of the front bumper of
his jeep collided with Ram Karan Arya's jeep. At this, all the occupants in
the vehicle, namely, Ram Karan Arya, his driver Om Prakash, Ram Ujagir,
Usman, Amarchand, gunner Rampyare and three policemen got down in
anger and hurling abuses said why did he hit his vehicle. On this, Shambhu
Sharan Pal folded his hands and said MLA Ji, please do not abuse. Due to
brake failure of the jeep, the vehicle collided. He did not hit it intentionally.
Whatever damage is done to the jeep, he will get it repaired. At that time,
Shambhu Sharan Pal was sitting in his jeep itself. After that, Ram Karan
Arya became very angry and said "Bring a gun, let's shoot the bloody fool."
After this, Shambhu Sharan Pal got down from the jeep and stood leaning
against the jeep. He again folded his hands and said, "MLA Ji, a mistake has
happened, please forgive me." Just then, Ram Karan Arya snatched a gun
from his companion Ram Ujagir and fired at Shambhu Sharan Pal, due to
which the gun's bullet struck the right side of Shambhu Sharan Pal's neck
and he fell on the road. They shouted to save Shambhu Sharan Pal and tried
to catch Ram Karan Arya, whereupon his companions brandishing their
weapons, left in their jeep towards Katra. Meanwhile, Bhawani Pal,
Advocate arrived at the spot. This incident was seen by Anil Singh,
Shatrughan Pal, Sukhsagar Upadhyay, Santram, Ramji Singh, Om Prakash
Singh, Shakeel, etc. but due to fear of the accused, no one stepped forward.
He and Bhawani Pal stopped a jeep and brought Shambhu Pal to Sadar
Hospital, Basti, where doctors declared him dead.

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Parmeshwar Pal @ Gudhun stated that the incident occurred
18. P.W.-2
about 13-14 years ago. On the day of the incident, he came to Basti on
Shambhu Sharan Pal's Jeep No. U.R.Y.-1640 along with Jaibaks Pal,
Satyawan Pal and Shambhu Sharan to participate in Jagdambika Pal's rally.
There was some defect in the steering of Shambhu Sharan Pal's jeep, which
was repaired after stopping at Roadways intersection. When they reached in
front of the saw mill located beside Ashok Shukla's house, MLA Ram Karan
Arya's jeep came at very high speed from Company Bagh towards Katra.
Suddenly, Ram Karan Arya's jeep stopped right in front of their jeep.
Shambhu Sharan Pal wanted to apply brakes suddenly at that time but his
brakes failed and the front bumper of his jeep collided from behind into Ram
Karan Arya's jeep. At this, Ram Karan Arya and the people with him got
down from their jeep and started hurling abuses, whereupon Shambhu
Sharan Pal asked them not to abuse. In Ram Karan's jeep, his policemen
were seated. Along with Ram Karan Arya, Ram Ujagir, Om Prakash,
Usman, Santram, Amar Singh, Pyare Lal and three others were present. On
this, Shambhu Sharan Pal said that he did not hit the vehicle intentionally
rather his vehicle's brakes failed and requested not to abuse and take
whatever damage had occurred. Immediately after this, Ram Karan Arya
flew into a rage, at which point Shambhu Sharan Pal got down from his jeep
and stood beside the jeep. Just then, Ram Karan Arya said to Ram Ujagir
standing beside him, "Bring the gun, let's shoot the bloody fool." Thereafter,
all at once Ram Karan Arya took the gun from Ram Ujagir and, in anger,
fired from the gun at the right side of Shambhu Sharan Pal's neck. They
rushed to save him, whereupon Ram Karan Arya and his companions,
extending threat to kill, fled towards Katra. At the same time, Bhawani Pal,
Advocate arrived at the spot. Shambhu Sharan Pal was taken to Sadar
Hospital, Basti by Bhawani Pal, Jaibaks Pal, Satyawan Pal and PW-2, where
the doctor examined him and declared him dead.
Satyawan Pal stated that on the day of the incident, he along with
19. P.W.-3
Jaibaks Pal, Parmeshwar Pal was going with Shambhu Sharan Pal in his jeep
to attend Jagdambika Pal's rally. He further stated that they had left their
home at around 9.00 a.m. After reaching Basti, near Roadways, the steering
of the said jeep was repaired. Thereafter, they went to Jagdambika Pal's
residence in Rameshwarpuri locality, but found no one there. They had left
from there at around 11.30 AM. He also states that when they reached in
front of the saw mill located beside Ashok Shukla's house, they had stopped
there for 5-10 minutes and after that they were going to Walterganj in the
same jeep and just then Ram Karan Arya was going in his jeep from
Company Bagh towards Katra. His jeep suddenly stopped in front of their
jeep, so their jeep collided with it. A little damage was caused to the rear

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part of Ram Karan Arya's jeep. Ram Karan got down from the jeep and
started abusing to Shambhu Pal, thereupon, Shambhu Pal asked him not to
abuse. Along with Ram Karan, Ram Ujagir, Amarchand, Usman, Santram,
Om Prakash, Rampyare were also seated in his jeep. Besides them, three
constables were also seated. Shambhu Pal said do not abuse, whatever
damage he sustained, he will get it repaired. He did not commit a mistake
intentionally. After this, Ram Karan flew into a rage and suddenly snatched
the gun from Ram Ujagir's hand and fired a shot with it, which struck the
collarbone (clavicle) of Shambhu Sharan Pal's neck. They attempted to save
him, whereupon Ram Karan abused and said that whoever steps forward will
be shot. After this, those people fled towards Katra in their jeep while
abusing. At the same time, Bhawani Pal Advocate, Anil Singh, Shatrughan
Pal, and other people arrived at the spot. They loaded Shambhu Sharan Pal
into a jeep and took him to Sadar Hospital, Basti, where the doctor examined
him and declared him dead.
Om Prakash Singh stated that the incident occurred on
20. P.W.-4
23.11.1994 at 12:00 noon. They had come to Basti at Company Bagh
intersection for personal work. At the time of the incident, he was coming
from Company Bagh towards Katra. As soon as he reached in front of Awas
Vikas and the saw mill, he saw that Ram Karan Ji's vehicle came and
stopped and from behind came Shambhu Sharan Pal's jeep, which, while
trying to avoid, collided into Ram Karan's vehicle. Shambhu Sharan Pal was
driving himself and Jaibaks Pal, Satyawan, Parmeshwar Pal were also seated
in his vehicle. In Ram Karan's vehicle Ram Karan, Santram, Ram Ujagir,
Amarchand, and Usman, along with their driver Om Prakash, gunner
Rampyare, and three more constables were seated. After the vehicles
collided, Ram Karan and the people seated in his vehicle surrounded
Shambhu Sharan Pal's vehicle, started abusing, and said, "Putting a Congress
flag and having written 'Pal' on the vehicle, you move around, have you lost
your mind ?" Shambhu Sharan Pal got down from his vehicle, stood leaning
against it and said, "MLA Ji, I did not hit intentionally; whatever damage is
done, I will get it repaired." At this, Ram Karan Arya became extremely
enraged, on the spur of moment snatched the gun from Ram Ujagir and fired
at Shambhu Sharan Pal. Shambhu Sharan Pal fell down. Ram Karan Arya
and his companions fled while brandishing guns and weapons.
21. P.W.-5 Dr. S.S. Dwivedi, Medical Officer, District Hospital, Basti stated
that on 23.11.1994 he and Dr. G.C. Singh Arora, Medical Officer at T.B.
Clinic, Basti conducted the postmortem of the body of deceased Shambhu
Sharan Pal at 8:00 PM in the evening, which was brought by Constable
Narsingh Ojha and Constable Hariram Mishra. The age of the deceased was
about 35 years. The deceased was a young man of average built/physique.

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His death had occurred half a day prior. During examination, he found
following ante-mortem injuries on his body :
(i) Firearm wound of entry, circular on the right side of the neck measuring 6
x 5 cm, extending into the mandibular cavity, margins inverted touching the
jaw, torn inwards, bleeding present along with blackening and tattooing.
Downward, nerves and muscles were torn.
(ii) Contused abrasion measuring 2.00 x 2.5 cm on the left side of the face
below the left eye.
(iii) Lacerated wound measuring 1.00 x 0.5 cm skin deep on the right side of
the neck merged with Injury No. 1.
25 small metallic pellets of various types and four cardboard pieces
(waddings) were recovered from Injury No. 1. Apart from this, four small
pellet pieces were obtained from different locations, which were sealed and
handed over to police personnel.
On internal examination , following injuries were found :
Lacerated wound found in upper part of right lung pleura; upper lobe of right
lung also found lacerated; heart was empty, weight 230 grams; major blood
vessels near the injury were torn; blood and blood clots were present in chest
cavity. 4 ounces of pasty food found in stomach. In the opinion of the
doctor, death of the deceased occurred due to shock and hemorrhage as a
result of ante-mortem firearm injury.
22. P.W.-6 Head Constable Kapildev stated that on the basis of written
complaint of Jaibaks Pal, Crime Case No. 857 of 1994 under Sections 147,
148, 149, 302/34, 504, 506 IPC was registered against Ram Karan Arya, Om
Prakash, Deen Dayal, Ram Ujagir, Amar, Usman and three-four others
including Rampyare. He also proved the G.D. entry.
23. P.W.-7 Vishwanath Tiwari stated that the incident occurred on
23.11.1994 at 12:00 noon. On that day, he had gone to Basti to get medicine
for his mother and after taking medicine from Company Bagh, Police Station
Kotwali, was returning towards Awas Vikas and as soon as he reached near
the saw mill before Awas Vikas intersection, he saw MLA Ram Karan
Arya's jeep coming at high speed from Company Bagh, which suddenly
stopped in front of the saw mill and from behind, Shambhu Pal's jeep also
came and while attempting to stop, struck from behind. In Ram Karan's jeep
were seated Ram Karan, Santram, Ram Ujagir, Amarchand, Usman, their
gunner Rampyare and driver Om Prakash were also present. In Shambhu
Pal's jeep were seated Satyawan Pal, Jaibaks Pal, and Parmeshwar Pal.

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When Shambhu Pal's jeep struck Ram Karan Arya's jeep from behind, all the
people got down from Ram Karan's jeep and surrounded Shambhu Pal's jeep
and Ram Karan stated some harsh words to him. On this, Shambhu Pal said
that he did not hit the vehicle intentionally and whatever damage was
caused, he would get it repaired. Upon this, his companions said that the
MLA Ji should not let him go, kill the bloody fool. On this, MLA Ram
Karan took the gun from the hands of Ram Ujagir and all at once shot
Shambhu Pal. Shambhu Pal fell down right there.
24. P.W.-8 Retired Sub-Inspector Shrikant Singh, first Investigating Officer
proved the investigation proceedings.
Brijendra Mohan Pandey, Retired Inspector, stated that on
25. P.W.-9
26.12.1994 he was posted as Inspector in C.B.C.I.D. Gorakhpur. The
investigation of Crime Case No. 857 of 1994 under Sections 147, 148, 149,
302/34, 504, 506 IPC, District Basti, was received by order of the Officer,
Crime Branch, Crime Investigation Department, Gorakhpur. He also proved
the investigation proceedings.
26. P.W.-10 Pawan Kumar Singh stated that on 23.11.1994, he had taken
over the investigation of this case. He also proved the investigation
proceedings. He identified the said DBBL 12-bore gun, cartridges and
raincoat.
27. As mentioned here-in-above, in defence evidence, D.W.-1 Imtiyaz,
D.W.-2 Mehdi Hasan, D.W.-3 Hasan Mohammad, D.W.-4 Anil Singh,
D.W.-5 Ashutosh Kumar Shukla, and D.W.-6 Major S.B. Singh,
Commander Vehicle and Depot Chhewoki Allahabad were produced and
examined.
28. D.W.-1 Imtiyaz stated in his statement that he knows accused Usman, he
belongs to his Nyaya Panchayat and his house is in his village. Assembly
election took place in 1993 Jagdambika Pal's brother Bhawani Pal, lawyer,
was pressuring Usman to campaign in his favor. Usman had said that he has
nothing to do with politics and refused to campaign, due to which he became
angry. About 13 years ago in the month of November, at Usman's door, a
panchayat was held regarding a dispute between two village men, Imtiyaz
and Mehdi, over cattle grazing mustard and wheat field. Usman had called
them and said that instead of going to police station, settle it through
panchayat. He was also present in panchayat. This panchayat went on from
2:00 PM to 3:30 PM. At that time on that day, Usman conducted the
panchayat. Later it came to be known that regarding the incident of the same
day, Bhawani Pal registered a case against Usman related to their village.

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Mehdi Hasan has stated that Usman is from his village. He is an
29. D.W.-2
old respectable person and also Pradhan of the village. It was month of
November, a fight had occurred between him and Imtiyaz at that time
because his goats had eaten his wheat field leading to mutual brawl,
regarding which panchayat was called between him and Imtiyaz on
23.11.1994 at Usman's house. On that day, he went to Usman's house around
8-9 AM. Opposing party also came. Panchayat went on till about 3:30 PM.
In panchayat, Usman decided that no party will file a case and Imtiyaz
should pay for his loss, but he did not take it. Thereafter they went to their
respective houses. On that day from morning 8-9 AM till 3:30 PM, Usman
was present at his home. Later came to know that Usman has been falsely
implicated in a false murder case.
30. D.W.-3 Hasan Mohammad has stated that it must be more than 13 and a
half years since incident occurred, time was 12:00 noon. He was going from
Company Bagh towards his village on his left side. When he moved a little
ahead from Gandhi Kala Niketan intersection, he saw 4-5 people arguing
heatedly amongst themselves. One amongst them shot another. After staying
there for a short while, he went to his village. MLA Ram Karan Arya was
MLA of his area and he knows him very well.
Anil Singh stated that it has been 13 and a half years since
31. D.W.-4
incident occurred, time was around 12:00 noon. At that time, he was going
on foot from Company Bagh side to his room in Awas Vikas. When he
moved ahead from Gandhi Kala Bhawan intersection, 5-6 people were
arguing heatedly amongst themselves. Out of those 5-6 people, someone
shot Shambhu Sharan Pal. He further states that his assembly constituency is
Nagar Purv. Since Ram Karan Arya had been MLA from his assembly
constituency several times, he recognized him. MLA Ram Karan Arya was
not amongst those 5-6 people, who were arguing.
Ashutosh Kumar Shukla, A.R.T.O. Basti, stated as per records in
32. D.W.-5
his office, vehicle No. UP 51A-4995 is registered in his office on 17.04.1995
in the name of Ram Karan Arya MLA, resident of Vikas Bhawan, District
Basti. Fitness of this vehicle is recorded as valid up to 16.04.2010, in which
seating capacity of vehicle is four persons including driver.
Major S.B. Singh, Commander Vehicle and Depot, C.O.D.
33. D.W.-6
Chhewoki, Allahabad, stated that he appeared upon court summons. As per
vehicle register of his office, vehicle No. B.A. 84-31288N was sold to Ram
Karan Arya, Legislative Assembly Secretariat Lucknow, Uttar Pradesh on
06.07.1984.
In Sessions Trial No. 38 of 2009, on behalf of prosecution, P.W.-1
34.

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Jaibaks Pal, P.W.-2 Gudun alias Parmeshwar Pal, P.W.-3 Vishwanath
Tiwari, P.W.-4 Satyawan Pal, P.W.-5 Om Prakash Singh, P.W.-6 Dr. S.S.
Dwivedi, P.W.-7 Head Const. Kapildev Singh, P.W.-8 Pawan Kumar Singh,
P.W.-9 Retired Sub-Inspector Shrikant Singh, P.W.-10 Retired Inspector
Brijendra Mohan Pandey and P.W.-11 Retired Inspector C.B. C.I.D. Uday
Pratap Singh were examined and they stated almost the same facts / version
as in Session Trial No. 91 of 1995 and supported the prosecution case.
35. Statements of accused in Sessions Trial No. 38 of 2009 State vs.
Amarchand etc. were recorded under Section 313 Cr.P.C. They stated the
prosecution story false, witnesses gave false statements and claimed case
was initiated on the basis of enmity by preparing false documents. Accused
Santram stated that deceased Shambhu Pal was nephew of MLA Jagdambika
Pal, under whose pressure false case was registered out of political rivalry.
Jagdambika Pal is currently a Member of Parliament. Accused Ram Pyare
stated that he was gunner of Ram Karan Arya. He was not involved in any
incident and was falsely implicated merely due to being a gunner. Accused
Rupendra Kujur and Banarasi Prasad stated that their duty was deployed in
security of the then MLA Ram Karan Arya. They were not involved in any
incident. They have been falsely implicated due to being security personnel.
In defence evidence, D.W.-1 Anil Agarwal, Inspector General of Police
36.
and D.W.-2 Devdutt were produced.
37. D.W.-1 Anil Agarwal, Inspector General of Police, who subsequently,
was Member Secretary U.P. Police Recruitment Board Lucknow, stated that
on 23.11.1994, he was present in an official meeting with District
Magistrate, Basti at Inspection House around 12:00 noon. On the same day
at about 12:30 PM, information was received that a person was shot near
Gandhi Kala Niketan. On the said information, he reached the spot. Then
MLA Jagdambika Pal was also present in meeting at Inspection House and
he also reached the spot. Huge crowd was present on the spot. There it was
stated that MLA Mr. Pal's nephew Shambhu Sharan was going in his Jeep
No. U.R.Y.-1640 and due to brake failure his vehicle collided into vehicle of
MLA Nagar Purv Ram Karan Arya going ahead of him. After this accident,
MLA Ram Karan Arya's shadow shot, as a result of which Mr. Shambhu
Sharan Pal died on the spot. Body of deceased was dispatched to District
Hospital by police officers who arrived earlier. After some time, he reached
District Hospital. District Magistrate, Basti was also there. They saw body of
deceased kept on main highway outside District Hospital. After some time,
crowd present outside hospital proceeded with body of deceased towards
main market. For maintaining law and order, District Magistrate and
Additional Superintendent of Police present there repeatedly requested MLA

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Mr. Pal not to take out procession with body of deceased but it had no effect.
The said officers again requested not to take out procession, whereupon they
agreed to condition that they will not take out procession but body will be
taken on foot by deceased's relatives from District Hospital to Postmortem
House in Police Lines. Considering gravity of situation, necessary police
force and Magistrates were deployed. After some time, MLA Mr. Pal started
dharna along with crowd by keeping body at Company Bagh intersection,
then after assurance of impartial and effective action by the District
Magistrate and him, dharna ended. Postmortem of body was conducted
during night itself and body handed over to relatives.
Devdutt stated in his statement that on 24.11.1994 he was
38. D.W.-2
working as District Magistrate, Basti and sent a joint report along with
Superintendent of Police Basti on 24.11.1994.
The learned trial court upon scrutiny of the evidence on record
39.
concluded that the case of prosecution was proved beyond reasonable doubt
against the accused Ram Karan Arya and recorded conviction and sentenced
him, as mentioned here-in-above, but acquitted the accused Ram Ujagir, Om
Prakash, Usman @ Yusuf, Amarchand, Santram, Ram Pyare, Constable A.P.
88 Rupendra Kujur and Banarsi Prasad. Hence, the aforesaid criminal appeal
by the convicted appellant Ram Karan Arya and the government appeal on
behalf of the State against acquittal order have been filed.
40. Assailing the impugned judgment and order on various grounds, learned
Senior Counsel appearing for the appellant Ram Karan Arya submitted that
the prosecution has not proved its case beyond reasonable doubt. It is further
submitted that the FIR is ante-timed. There are material contradictions in the
statements of prosecution witnesses, which shake the root of the prosecution
case. He further submits that there is no independent witness of the recovery
of gun of Ram Karan Arya. No test identification parade was conducted. It is
also submitted that the medical report does not support the prosecution
version. It has further been submitted that lodging the FIR at 1:10 PM is also
doubtful because perusal of the inquest report reveals overwriting on the
case crime number and sections and no name of any accused or weapon used
is mentioned in the inquest report. He further submits that in compliance of
the provisions of Section 157 Cr.P.C. the FIR was sent to the concerned
Magistrate belatedly. It has also been submitted that prosecution witnesses
have stated that they loaded the deceased Shambhu Sharan into a jeep from
the spot and reached Sadar Hospital, Basti and blood was oozing from the
body of Shambhu Sharan Pal and blood had also fallen on the ground, but
blood was not found smeared on the clothes of any witness nor did any
witness state that blood got onto their body/clothes while loading the

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deceased. Absence of blood on the hands or clothes of the witnesses
indicates that the witnesses were not present on the spot at the time of the
incident and their statements are untrustworthy. Still further he submits that
in the present case the place of occurrence is also not fixed as per the
prosecution witnesses and the place of occurrence is doubtful. It is also
submitted that nature of injuries stated by the prosecution to have been
sustained by the deceased could not have been caused in the manner
described by the prosecution. There is extreme contradiction between the
injuries caused by firearm and the statements of witnesses. It is next
contended that the prosecution alleged ten persons arrived on the spot seated
in the said jeep which is impossible and renders the prosecution narrative
doubtful. He further submits that the investigation of the case was not
conducted impartially. It is also submitted that the incident occurred on
sudden provocation and the case was concocted due to political rivalry. The
conclusion arrived at by the trial court is not based on credible evidence. It
has been additionally submitted that if, for the sake of argument, it is
assumed that appellant had committed the offence, in that case also no
offence under Section 302 IPC was made out against the appellant as in the
heat of passion upon a sudden quarrel the appellant had caused injuries on
the deceased and had no pre-meditation to commit murder of the deceased.
Therefore, at the most the case could travel up to the limits of offence under
Section 304 IPC. It has further been submitted that appellant Ram Karan
Arya had served out more than 9 years and 6 months sentence. The findings
recorded by trial court in the impugned judgment and order are also not
based on correct appreciation of facts and evidence and impugned judgment
and order suffer from infirmity and illegality warranting interference by this
Court. Lastly, it is submitted that since the offence was not committed in
furtherance of common object, the co-accused persons have rightly been
acquitted by the trial court. Also it was submitted that when a few of the
accused were acquitted then definitely charge as under Section 147 and 149
of the IPC could not have been established by the trial Court.
41. Per contra, learned counsel for the informant and the learned Additional
Advocate General appearing for the State of U.P. have vehemently opposed
the submissions made by the learned Senior Counsel appearing for the
appellant. He submitted that the prosecution witnesses had no reason to
depose falsely before the court intending false implication of the appellant.
Statements of eyewitnesses regarding commission of the crime by the
appellant and co-accused are consistent and they have supported the
prosecution case. All witnesses examined by prosecution also supported
place of occurrence and there is no contradiction in this regard. Appellant
had strong motive to commit the crime. All the accused in furtherance of
common object forming an unlawful assembly murdered the deceased. There

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is no material fault or discrepancy in the investigation. The prosecution case
is also corroborated by the medical evidence. F.I.R. is a genuine one. The
prosecution story is proved by cogent and reliable oral and documentary
evidence. Findings recorded by trial court in the impugned judgment and
order are not based on correct appreciation of facts, evidence and law and
suffer from any infirmity or illegality warranting interference by this Court.
Hence, the appeal is liable to be dismissed. So far as the acquittal of co-
accused is concerned, learned Additional Advocate General has supported
the government appeal and submitted that the trial court committed an error
of ignoring the statement of the occular witnesses. They deposed that the
deceased had been murdered by the appellant Ram Karan Arya and the co-
accused persons had also played active role in commission of the crime.
42. We have considered rival submissions made by learned counsel for
parties and have gone through the entire record including the impugned
judgment and order carefully.
43. In the present case, it has been mentioned in the FIR that on the day of
the incident, deceased Shambhu Sharan Pal along with prosecution witnesses
was going in a jeep to Walterganj to attend a rally organized by Sadar MLA
Jagdambika Pal and when they stopped the vehicle in front of Dinesh Pal's
quarter before the Awas Vikas gate, MLA Nagar Purv Ram Karan Arya
coming from the front stopped his jeep. Ram Karan Arya abused Shambhu
Sharan and said, "Putting a Congress flag and driving the vehicle, you hit my
jeep; why did you hit my vehicle?" Shambhu Sharan Pal also uttered some
harsh words, whereupon Ram Karan Arya became angry and on a spur of
moment fired at Shambhu Sharan, due to which Shambhu Sharan Pal fell
down bleeding. The accused left in their vehicle while abusing and
threatening.
According to informant Jaibaks Pal - P.W.-1 on the day of the incident
44.
he along with Satyawan Pal and Parmeshwar Pal @ Gudun was going from
his home in Shambhu Sharan's jeep to Walterganj for a rally organized by
Jagdambika Pal. Shambhu Sharan Pal was driving the vehicle. When at
around 12:00 noon they reached near Dinesh Pal's house between the saw
mill and Ashok Shukla's house at Awas Vikas intersection, MLA Ram
Karan Arya suddenly arrived there in his jeep and stopped his jeep in front
of Shambhu Sharan's jeep. Shambhu Sharan also applied brakes to stop his
jeep but the corner of the jeep collided into Ram Karan Arya's jeep. On this,
all persons sitting in Ram Karan Arya's jeep including Ram Karan Arya,
Ram Ujagir, Om Prakash, Usman, Amar, Rampyare, and three-four other
shadows got down and surrounded Shambhu Sharan's jeep. Ram Karan
abused Shambhu Sharan and said, "Have you lost your mind, moving around

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with a Congress flag, why did you hit my vehicle ?" On this, Shambhu
Sharan said, "The vehicle's brakes failed, I did not hit intentionally, whatever
damage occurred to the vehicle, I will get it repaired." On this, Ram Karan
Arya said, "He has lost his mind, bring a gun, let's shoot him." Ram Karan
Arya snatched the gun from his companion Ram Ujagir and shot Shambhu
Sharan. The bullet struck the right side of Shambhu Sharan's neck due to
which he fell on the ground. Remaining accused Ram Ujagir, Usman,
Santram, Amarchand, Rampyare, three constables and Om Prakash got down
and surrounded the jeep from all sides. All had weapons in hand. During that
time, when an attempt was made to save Shambhu Sharan Pal, all accused
said that if anyone steps forward, they would kill them too. This witness
stated during cross-examination in Ram Karan Arya's Sessions Case that this
incident was witnessed on the spot by Anil Singh, Shatrughan Pal,
Sukhsagar Upadhyay, Santram, Ramji Singh and Om Prakash Singh present
there but due to fear of the accused no one stepped forward. Regarding the
said incident stated by the informant, the FIR was lodged by this witness at
Police Station Kotwali, Basti, which is Ext. Ka-1.
45. The other witnesses examined by the prosecution, namely, Parmeshwar
Pal @ Gudun (P.W.-2), Satyawan Pal (P.W.-3), Om Prakash Singh (P.W.-4),
and Vishwanath Tiwari (P.W.-7) stated in their depositions that the incident
occurred on 23.11.1994 at 12:00 noon. Witness Parmeshwar Pal alias Gudun
(P.W.-2) and Satyawan Pal (P.W.-3) stated that at the time of the incident,
they were also traveling in Shambhu Sharan's jeep to participate in the rally
organized by Jagdambika Pal. These witnesses also stated that upon
colliding into Ram Karan Arya's jeep near the saw mill located near Ashok
Shukla's house, Ram Karan Arya and others got down from the jeep and
came forward hurling abuses at Shambhu Sharan Pal. When Shambhu
Sharan Pal asked them not to abuse, Ram Karan flew into a rage and
Shambhu Sharan Pal, who had gotten down from the jeep and stood beside
it, was shot by Ram Karan Arya after taking a gun from Ram Ujagir, firing
at the right side of Shambhu Sharan Pal's neck in rage. These witnesses also
stated that other persons including Bhawani Pal, Anil Singh, Shatrughan Pal,
Sukhsagar Upadhyay, Om Prakash Singh and others, arrived at the spot of
occurrence. Witness Om Prakash Singh (P.W.-4) stated his presence on the
spot saying that he came to Company Bagh intersection for personal work
and was coming from Company Bagh towards Katra at the time of the
incident. As soon as he reached in front of the saw mill near Awas Vikas
intersection, he witnessed the incident. This witness stated that the incident
occurred on 23.11.1994 at 12:00 noon, matching the sequence described by
other witnesses. Similarly, witness Vishwanath Tiwari (P.W.-7) clarified his
presence on the spot stating that on that day he came to Basti to purchase

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medicine for his mother and after purchasing medicine from Company Bagh,
Police Station Kotwali, Basti, was returning towards Awas Vikas. Before
Awas Vikas intersection near the saw mill, he witnessed the incident and
described the incident as having been committed according to the sequence
stated by other prosecution witnesses. The above factual witnesses were also
examined in Sessions Trial No. 38 of 2009.
46. Upon perusal of the statements of the above witnesses, it is evident that
these witnesses have stated that the incident occurred on 23.11.1994 at 12:00
noon. Regarding the spot / place of occurrence, it has come in the statements
of these witnesses that near Awas Vikas intersection, near the saw mill and
Ashok Shukla's house, a dispute arose upon the collision of jeeps,
whereupon accused Ram Karan Arya caused injury to Shambhu Sharan's
neck by firing a gun. According to the witnesses, upon being taken to the
hospital, he was declared dead. The incident is stated to have occurred at
12:00 noon and the FIR of the present case was registered on the same day at
1.10 p.m. at Police Station Kotwali, Basti. According to the chick report, the
distance from the spot of occurrence to the police station is shown as four
kilometers. There is no delay whatsoever in lodging the FIR. The names of
all accused involved in the incident are mentioned in the FIR. A perusal of
the statements of the informant and other witnesses reveals that after
sustaining firearm injury, Shambhu Sharan Pal was loaded into a jeep and
taken to the hospital where he was declared dead. The persons present on the
spot at the time of the incident were relatives of Shambhu Sharan Pal and
upon injury, the primary endeavor of the relatives was to provide medical
facility to him. In the situation, after an incident where a close relative is
injured, even in case of death, the effort remains to take the injured quickly
to the nearest hospital and an attempt was made by the witnesses to take the
deceased to the hospital, which is a natural process. According to informant
Jaibaks Pal, when Shambhu Sharan Pal was declared dead at the hospital, his
body was placed in the hospital mortuary at 12:35 PM or 1:40 PM.
Thereafter, he came outside the hospital and wrote the FIR of the incident. In
his cross-examination, this witness stated that he wrote the written complaint
at the Sonupar intersection and at that time Bhawani Pal was inside the
hospital. He did not inform him about writing the complaint. No one else
was with him and he did not inform anyone. This witness stated that he came
outside the hospital alone and wrote the complaint and at that time Bhawani
Pal was not with him but was inside the hospital. In the above situation, no
force appears in the argument that the FIR was written after consulting
Bhawani Pal. As is clear from the said statement of the writer of FIR,
Bhawani Pal was not present at the time of writing the report. Learned
counsel for the appellant also argued that keeping in view the time taken in

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writing the report after placing the body in the mortuary at 1:40 PM by the
informant, it was impossible to register the report at 1:10 PM. The witness
stated that the body was placed in the mortuary at 12:35 PM or 1:40 PM. If
the said time is taken as 12:35 PM, writing the FIR at Police Station Kotwali
located four kilometers from the spot, as stated, is not improbable. In the
present case, the FIR was lodged along with all essential facts for
prosecution, names of witnesses, time of incident, place of incident, name of
deceased and names of accused.
47. Learned counsel also submitted that delay was made in sending the FIR
to the concerned court under Section 157 Cr.P.C. In this case, the incident is
of dated 23.11.1994 and the report submitted before the concerned court
bears the Magistrate's endorsement dated 29.11.1994. Delay in sending the
report to the Court under Section 157 Cr.P.C. is not fatal to the prosecution
in every situation and for this, facts and circumstances of the case must be
kept in mind. From a perusal of the provisions of Section 157 CrPC, it is
explicitly clear that the officer-in-charge of a police station
shall forthwith
a report of the same to a Magistrate empowered to take cognizance of
send
such offence upon a police report. In the present case, as mentioned above,
no such fact came into light that the report was sent on 29.11.1994 rather it
was received in the Magistrate Court on 29.11.1994. The Apex Court in
has held that
Ravindra Mahto vs. State of Jharkhand 2006 (57) A.C.C. 543
on the sole ground of delay in sending the FIR to the Magistrate, the entire
prosecution case cannot be termed untrustworthy.
Learned counsel for the appellant pointed out overwriting and darkening
48.
of Crime Number and Sections in Inquest Report Ext. Ka-6, stating that the
Crime Number and Sections were entered later with a different pen.
According to PW-4, inquest proceedings commenced at 14:10 PM and
concluded at 16:00 PM and the body was sealed and sent for postmortem.
According to this witness, information of the incident was received at 13:10
P.M. whereupon he went to the hospital. No cross-examination was
conducted regarding the said overwriting in the Inquest Report. In the case
of Shambhu Das alias Bivai Das vs. State of Assam 2010 (71) A.C.C. 510 ,
the Hon'ble Supreme Court held that the purpose of an Inquest Report is to
ascertain whether the deceased met an unnatural death and its purpose is to
ascertain the nature of injuries, apparent weapon and cause of death. It is not
necessary to give the names of accused persons in the Inquest Report.
Discrepancy in the Inquest Report is not fatal to the prosecution nor does it
reveal suspicious circumstances. Contents of an Inquest Report cannot be
called substantive evidence but can be used to test the veracity of evidence.
49. As regards the submission of the learned counsel for the appellant that in

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the present case the place of incident has not been conclusively proved by
the prosecution and in the statements given by the witnesses about the place
of incident, there are significant contradictions and upon the prosecution
failing to conclusively prove the place of incident, the entire prosecution
case becomes doubtful is concerned, from a perusal of the evidence
produced on behalf of the prosecution it appears that regarding the place of
incident there is no significant contradiction in the statements of the
witnesses. It was mentioned in the FIR that when the vehicle was stopped on
the left side in front of Dinesh Pal's quarter in Tehsil Colony, Ram Karan
Arya's jeep came from the front and stopped. In the site plan Ext. Ka-14
prepared by the Investigating Officer, Dinesh Pal's house is shown at spot
"C" near the place of incident. In the statements of the prosecution
witnesses, it has been stated that when they reached between the saw mill
and Ashok Shukla's house situated near Awas Vikas Chauraha, the jeep was
struck and the incident was committed. In light of the above evidence, based
on the site plan prepared by the Investigating Officer, it is to be seen whether
there is a discrepancy between the statements of the witnesses and the site
plan prepared by the Investigating Officer regarding the place of incident to
such an extent that the place of incident becomes doubtful on the basis of the
evidence. Detailed cross-examination of the witnesses was conducted.
Informant Jaybaks Pal, P.W.-1 has stated that this incident occurred in front
of the compound of Dinesh Pal's house. According to this witness, Dinesh
Pal's house is situated to the west of Ashok Shukla's house and to the south
of the road at a distance of about 30–40 meters. From the cross-examination
conducted with this witness, it is clear that the boundary of Ashok Shukla's
house and the saw mill are adjacent and from there Dinesh Pal's house is at a
distance of about 30–40 meters. Further, P.W.-2 stated almost the same
position of the place of incident. Thus, from a perusal of the statements of
these witnesses, it appears that Ashok Shukla's house and the saw mill are
situated side by side and according to Jaybaks Pal, P.W.-1, their boundaries
are adjoining and Dinesh Pal's house is at a distance of 30–40 paces from
that spot. Therefore, the submission of the learned counsel for the appellant
that the place of incident is not fixed has no force.
50. As far as the submission of the learned counsel for the appellant that the
witnesses, who claim to be eye witnesses of the incident, were not present at
the place of incident and their presence on the spot has been fabricated is
concerned, PW-1, PW-2 and PW-3 have stated that on Ram Karan Arya's
jeep there were Ram Karan Arya, Ram Ujagir, driver Om Prakash, Usman,
Amar, gunner Ram Pyare, Santram, and three other policemen, who
surrounded their jeep while hurling abuses. At that time, they were sitting
inside the jeep itself. These witnesses have stated their presence at the place
of incident as being seated in the jeep with Shambhu Sharan Pal and stated

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that at that time they were going to participate in a rally organized by
Jagdambika Pal in Walterganj. Among the other two witnesses examined on
behalf of the prosecution, P.W.-4 Om Prakash Singh and another witness
stated to be present at the spot is Vishwanath Tiwari, P.W.-7. These persons
also stated their presence at the place of incident, saw the incident and gave
details of the incident in their statements. According to P.W.-4, he had come
to Company Bagh Chauraha for his personal work and at the time of the
incident was coming from Company Bagh towards Katra and when he
reached near the saw mill at Awas Vikas Tiraha, he saw the incident.
Similarly, P.W.-7 has stated regarding his presence on the spot that on that
day he had come to take medicine for his mother and after taking medicine
from Company Bagh, was returning and as soon as he reached near the saw
mill situated near Awas Vikas Tiraha, he saw the incident. Thus, the
presence of the eye witnesses on the spot is established beyond doubt. If,
while loading Shambhu Sharan Pal into the jeep while taking him to the
hospital, no blood stains were found on the body or clothes of the witnesses,
this situation alone does not create doubt regarding the presence of the
witnesses on the spot.
51. So far as the submission of the learned counsel for the appellant that
medical evidence does not support the oral version is concerned, the post-
mortem of the body of deceased was conducted by Dr. S.S. Dwivedi, P.W.-5
on 23.11.1994 at 8:00 PM and the death of the deceased was stated to have
occurred half a day prior. Amongst the ante-mortem injuries, one injury,
firearm wound, measuring 6 cm x 5 cm x chest cavity deep, entering
inwards, was present. The margins of the wound were inverted with
bleeding, blackening and tattooing present. Apart from this injury, two other
injuries, one an abraded linear mark 5 cm x 0.5 cm on the left side of the
face immediately below the left eye, and and the other lacerated wound 1 cm
x 0.5 cm skin deep on the right side of the neck merged with injury No. 1
were found. In the internal examination of the corpse, a lacerated wound was
found in the upper part of the right lung membrane and the upper lobe of the
right lung was lacerated. In the opinion of the doctor, death of the deceased
was caused by shock and hemorrhage due to ante-mortem firearm injury.
52. From a perusal of the statement of the doctor, it is clear that one firearm
entry wound was found on the right side of the deceased's neck on which
blackening and tattooing were present, revealing that the shot was fired from
close range. According to the oral evidence produced by the prosecution,
accused Ram Karan Arya fired with a gun at Shambhu Sharan Pal which
struck the right side of his neck and this condition is consistent with injury
No. 1 found in the post-mortem. Dr. S.S. Dwivedi, P.W.-5, in his cross-
examination has stated that the direction of the injury found on the body of

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the deceased was from top to bottom/downwards, and in his opinion such an
injury by a shot is possible only when the assailant is at a higher height than
the injured person. In the statements of prosecution witnesses, it has come
that the height of accused Ram Karan Arya was less than that of deceased
Shambhu Sharan Pal and deceased Shambhu Sharan Pal was taller in stature
than accused Ram Karan Arya. In the present case, after the jeep collision,
heated exchange and dispute took place between both parties and statements
of witnesses reveal that Shambhu Sharan Pal was begging for forgiveness
and during this time Ram Karan Arya snatched the gun from Ram Ujagir
and fired. In such a situation, it is natural that the person upon whom a gun is
pointed/fired will attempt to defend himself and in an attempt to save
himself, will move around or try to bend and standing completely straight
would not be natural behavior. Keeping in view this circumstance, a
conclusion regarding the direction of injury cannot be drawn solely on the
basis of the difference in height between the deceased and the accused.
According to complainant Jaybaks Pal, P.W.-1, the shot was fired from a
distance of one to two feet. Prosecution witnesses state that after being shot,
Shambhu Sharan Pal fell on the pitch road and after Shambhu Sharan fell,
injuries were also seen on his face and blood was falling from there.
Shambhu Sharan Pal fell face down after being shot and sustained injuries.
The said situation described by prosecution witnesses provides an
explanation for the other injuries found on the deceased's body and under the
above circumstances, it cannot be said that the medical evidence contradicts
oral evidence and is of such a nature that it completely negatives the causing
of injuries in the manner described by the witnesses.
53. With regard to the ante-timing of the FIR, learned counsel submits that
the parentage as had been given in the FIR of the accused definitely
indicated that the FIR was a well thought out one as the informant had no
source of information vis-a-vis the parentage. In fact in his statement before
the court the informant had said in so many words that at the lodging of the
FIR the parentage of the accused were not known to him.
54. Learned counsel for the informant and the learned Additional Advocate
General appearing for the State of U.P. submitted that according to the
provisions of Section 149 IPC merely by being a member of an unlawful
assembly, every member of the unlawful assembly is liable for an offence
committed by any one or more members of the unlawful assembly. Looking
at the circumstances of the present case, in which presence at the spot is
stated to be sudden and looking at the depositions of the witnesses, in this
matter the formation of an unlawful assembly does not appear to be
established. The incident occurred following a dispute that arose after the
collision of deceased Shambhu Sharan Pal's jeep into accused Ram Karan

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Arya's jeep. Prior to this, according to informant - P.W.-1, there was no
enmity or ill-will between the parties and at the time of the incident,
deceased Shambhu Sharan Pal along with prosecution witnesses was going
to attend the rally organized by Jagdambika Pal in Walterganj and Ram
Karan Arya's jeep was also traveling along the same route, in which after the
collision the incident was committed. From this, it is clear that when the
accused persons reached the spot, they did not reach with the intention of
committing an offence with any common object. No clear statement was
given on behalf of the prosecution regarding any accused other than accused
Ram Karan Arya possessing weapons in hand. To give effect to the
provisions of Section 149 I.P.C., it is necessary for the prosecution to prove
the fact that the offence was committed in furtherance of the common object
in fulfillment of the object given in Section 141 IPC. If an offence has been
committed by an individual person, which was not committed in furtherance
of a common object, the other persons whose specific role or active
participation in the incident has not been shown, will not be liable for the
offence committed by that person, which was committed out of his own
knowledge and intention. In the present case, after the collision of jeeps, the
dispute took place between Ram Karan Arya and deceased Shambhu Sharan
Pal and during the dispute itself, Ram Karan Arya took a gun from Ram
Ujagir and fired upon Shambhu Sharan Pal and, as described above, the
person firing with a gun has knowledge of the intention and fact that death of
the deceased is caused in the ordinary course of nature by injuries inflicted
by a gun it cannot be accepted that the offence committed by Ram Karan
Arya was, in these circumstances, committed as a member of an unlawful
assembly merely by all accused coming together and going together. Hence,
in the present case, formation of a common object does not appear.
55. Thus, from the above discussions, it is evident that PW-1 has proved the
first information report. PW-2 and PW-3, eye witnesses, in their evidence
have proved the manner in which the accused appellant had caused injuries
upon the deceased resulting into his death. They have offered a natural
picture of the incident. The evidence of the informant PW-1 and the said
eyewitnesses are totally consistent and also corroborate with the first
information report as to the date, time and place of the incident. The
presence of the said eye witnesses at the place of incident is quite natural as
they were in the jeep of the deceased itself and PW-4 and PW-7 had reached
the incident by chance and witnessed the incident. The ocular evidence of
eyewitness as to the injuries caused by the accused appellant is also totally
consistent with the first information report and medical evidences i.e. the
postmortem report and the evidence of PW-5, the doctor who conducted the
autopsy. The Chik FIR has been proved by PW-6. The injuries found on the

CRLA No. 2071 of 2017
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body of the deceased, as mentioned in the postmortem report, have been
proved by PW-5 Dr. S.S. Dwivedi, who conducted autopsy on the body of
the deceased. The injuries, as mentioned in the postmortem report and
proved by the PW-5 in his ocular evidence, corroborate with the first
information report and the evidence of eyewitnesses as well as the inquest
report. PW-5 has also opined that the cause of death was due to shock and
haemorrhage as a result of ante mortem firearm injuries. Thus, the date, time
and place of incident, the presence of the accused appellant at the place of
incident and the injuries caused by him to the deceased resulting into his
death have been successfully proved by the prosecution beyond a reasonable
doubt.
56. Now the Court proceeds to deal with the submission made by the learned
counsel for the appellant that offence under Section 302 IPC is not made out
and this case cannot travel beyond the purview of offence under Section 304
(Part-I) or 304 (Part-II) IPC.
In this matter, it is undisputed fact that on the day of the incident,
57.
deceased Shambhu Sharan Pal along with prosecution witnesses was going
in a jeep to Walterganj to attend a rally organized by Sadar MLA
Jagdambika Pal and when they stopped the vehicle in front of Dinesh Pal's
quarter before the Awas Vikas gate, MLA Nagar Purv Ram Karan Arya
coming from the front stopped his jeep. Ram Karan Arya abused Shambhu
Sharan and said, "Putting a Congress flag and driving the vehicle, you hit my
jeep; why did you hit my vehicle ?" Shambhu Sharan Pal also uttered some
harsh words, whereupon Ram Karan Arya became angry and suddenly fired
at Shambhu Sharan, due to which Shambhu Sharan Pal fell down bleeding
and subsequently died.The fact that it was a homicidal death takes this Court
to most vexed question whether it would fall within the four-corners of
murder or culpable homicide not amounting to murder. Therefore, we are
considering the question whether it would be a murder or culpable homicide
not amounting to murder and punishable under Section 304 IPC.
58. The counsel for the appellant has argued that the present case is squarely
covered under Exception 4 of Section 300 IPC, which reads as under:
" 300. Murder :-
Exception 1. - ….. Exception 2. - ….. Exception 3. -
..… Exception 4. - Culpable homicide is not murder
if it is committed without premeditation in a sudden
fight in the heat of passion upon a sudden quarrel
and without the offenders having taken undue
advantage or acted in a cruel or unusual manner.

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23
Explanation.- It is immaterial in such cases which
party offers the provocation or commits the first
assault."
59. In the case of Pulicherla Nagaraju @ Nagaraju @ Nagaraja Reddy
, the Hon'ble Supreme
Vs. State of Andhra Pradesh, (2006) 11 SCC 444
Court enumerated some of the circumstances relevant to find out whether
there was any intention to cause death on the part of the accused. The Court
observed as under :
"……...Therefore, the court should proceed to
decide the pivotal question of intention, with
care and caution, as that will decide whether
the case falls under Section 302 or 304 Part I
or 304 Part II. Many petty or insignificant
matters - plucking of a fruit, straying of cattle,
quarrel of children, utterance of a rude word
or even an objectionable glance, may lead to
altercations and group clashes culminating in
deaths. Usual motives like revenge, greed,
jealousy or suspicion may be totally absent in
such cases. There may be no intention. There
may be no premeditation. In fact, there may
not even be criminality. At the other end of the
spectrum, there may be cases of murder where
the accused attempts to avoid the penalty for
murder by attempting to put forth a case that
there was no intention to cause death. It is for
the courts to ensure that the cases of murder
punishable Under Section 302, are not
converted into offences punishable Under
Section 304 Part I/II, or cases of culpable
homicide not amounting to murder, are treated
as murder punishable Under Section 302. The
intention to cause death can be gathered
generally from a combination of a few or
several of the following, among other,
circumstances: (i) nature of the weapon used;
(ii) whether the weapon was carried by the
accused or was picked up from the spot; (iii)
whether the blow is aimed at a vital part of the
body; (iv) the amount of force employed in
causing injury; (v) whether the act was in the

CRLA No. 2071 of 2017
24
course of sudden quarrel or sudden fight or
free for all fight; (vi) whether the incident
occurs by chance or whether there was any
per-meditation; (vii) whether there was any
prior enmity or whether the deceased was a
stranger; (viii) whether there was any grave
and sudden provocation, and if so, the cause
for such provocation; (ix) whether it was in the
heat of passion; (x) whether the person
inflicting the injury has taken undue advantage
or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or
several blows. The above list of circumstances
is, of course, not exhaustive and there may be
several other special circumstances with
reference to individual cases which may throw
light on the question of intention………..."
60. Further, in the case of State of Rajasthan Vs Dhool Singh, (2004) 12
SCC 546 , the Hon'ble Supreme Court has observed that in order to
determine whether there was intention to kill or not is to be determined
while keeping in mind whether the injury was caused on vital body part and
the nature of the weapon used. The number of injuries inflicted shall be
irrelevant. The relevant part of the judgment is reproduced as under :-
"13. In regard to the finding of the High Court
that the prosecution has not even established
that the respondent herein had acted with an
intention of causing death of the deceased we
must note that the same is based on the fact that
the respondent had dealt a single blow which
according to the High Court took the act of the
respondent totally outside the scope of
Exception I to Section 300 IPC. Here again we
cannot agree with the finding of the High Court.
The number of injuries is irrelevant. It is not
always the determining factor in ascertaining
the intention. It is the nature of injury, the part
of body where it is caused, the weapon used in
causing such injury which are the indicators of
the fact whether the respondent caused the death
of the deceased with an intention of causing
death or not. In the instant case it is true that the

CRLA No. 2071 of 2017
25
respondent had dealt one single blow with a
sword which is a sharp-edged weapon
measuring about 3 ft. in length on a vital part of
body namely the neck. This act of the respondent
though solitary in number had severed
sternoclinoid muscle, external jugular vein,
internal jugular vein and common carotid artery
completely leading to almost instantaneous
death. Any reasonable person with any stretch
of imagination can come to the conclusion that
such injury on such a vital part of the body with
a sharp-edged weapon would cause death. Such
an injury in our opinion not only exhibits the
intention of the attacker in causing the death of
the victim but also the knowledge of the attacker
as to the likely consequence of such attack
which could be none other than causing the
death of the victim. The reasoning of the High
Court as to the intention and knowledge of the
respondent in attacking and causing death of the
victim, therefore, is wholly erroneous and
cannot be sustained."
61. Similar view was taken by the Hon'ble Supreme Court in Arun Raj Vs
, wherein the Court observed as
Union of India & others, JT 2010 (5) SC 1
under :
"9. We now turn to second point urged on behalf of
the appellant. It is contended by learned counsel that
there was no intention on the part of the appellant to
cause the death of the deceased and, hence, Section
304 Part II of the IPC which deals with culpable
homicide not amounting to murder, will be attracted.
Alternatively, it is contended that the appellant dealt
one single blow on the deceased, and hence, intention
to cause death cannot be attributed to the appellant
and, hence, the act of the appellant will not fall under
Section 302 of IPC but under Section 304 Part II...…
10) Essentially the ingredients for bringing an act
under Part II of the Section are:-
(i) act is done with the knowledge that it is likely to

CRLA No. 2071 of 2017
26
cause death,
(ii) there is no intention to cause death, or to cause
such bodily injury as is likely to cause death.
11) ....... In the present case, there has been no
sudden altercation which ensued between the
appellant and the deceased in the present case. The
deceased called the appellant `gandu' following
which there was a heated exchange of words
between the two, the day before the murder. The
next day, however, the appellant concealed a kitchen
knife in his lungi and went towards the cot of the
deceased and struck the deceased a blow on the
right side of the chest, while the deceased was
sleeping. The fact that the appellant waited till the
next day, went on to procure a deadly weapon like a
kitchen knife and then proceeded to strike a blow on
the chest of the appellant when he was sleeping,
points unerringly towards due deliberation on the
part of the appellant to avenge his humiliation at the
hands of the appellant. The nature of weapon used
and the part of the body where the blow was struck,
which was a vital part of the body helps in proving
beyond reasonable doubt, the intention of the
appellant to cause the death of the deceased. Once
these ingredients are proved, it is irrelevant whether
there was a single blow struck or multiple
blows...…"
62. In Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC
, Apex Court on the same issue held that if on a sudden quarrel a person
217
in the heat of the moment picks up a weapon which is handy and causes
injuries out of which only one proves fatal, he would be entitled to the
benefit of the Exception provided he has not acted cruelly. This Court held
that the number of wounds caused during the occurrence in such a situation
was not the decisive factor. What was important was that the occurrence had
taken place on account of a sudden and unpremeditated fight and the
offender must have acted in a fit of anger. Dealing with the provision of
Exception 4 to Section 300, the Apex Court observed as under:-
" To invoke this exception four requirements
must be satisfied, namely, (i) it was a sudden

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27
fight; (ii) there was no premeditation; (iii) the
act was done in a heat of passion; and (iv) the
assailant had not taken any undue advantage
or acted in a cruel manner. The cause of the
quarrel is not relevant nor is it relevant who
offered the provocation or started the assault.
The number of wounds caused during the
occurrence is not a decisive factor but what is
important is that the occurrence must have
been sudden and unpremeditated and the
offender must have acted in a fit of anger. Of
course, the offender must not have taken any
undue advantage or acted in a cruel manner.
Where, on a sudden quarrel, a person in the
heat of the moment picks up a weapon which
is handy and causes injuries, one of which
proves fatal, he would be entitled to the
benefit of this exception provided he has not
acted cruelly."
(emphasis supplied).
In , the
63. Ghapoo Yadav and Ors. v. State of M.P., (2003) 3 SCC 528
Apex Court held that in a heat of passion there must be no time for the
passion to cool down and that the parties had in that case before the Court
worked themselves into a fury on account of the verbal altercation in the
beginning. Apart from the incident being the result of a sudden quarrel
without premeditation, the law requires that the offender should not have
taken undue advantage or acted in a cruel or unusual manner to be able to
claim the benefit of Exception 4 to Section 300 IPC. Whether or not the fight
was sudden, was declared by the Court to be decided in the facts and
circumstances of each case. The following passage from the decision is
apposite :
"10. .......... The help of Exception 4 can be invoked if
death is caused:
(a) without premeditation;
(b) in a sudden fight;
(c) without the offender's having taken undue
advantage or acted in a cruel or unusual manner;
and

CRLA No. 2071 of 2017
28
(d) the fight must have been with the person killed.
To bring a case within Exception 4 all the
ingredients mentioned in it must be found. It is to be
noted that the "fight" occurring in Exception 4 to
Section 300 IPC is not defined in the Indian Penal
Code. It takes two to make a fight. Heat of passion
requires that there must be no time for the passions
to cool down and in this case, the parties have
worked themselves into a fury on account of the
verbal altercation in the beginning.
A fight is a combat between two and more persons
whether with or without weapons. It is not possible
to enunciate any general rule as to what shall be
deemed to be a sudden quarrel. It is a question of
fact and whether a quarrel is sudden or not must
necessarily depend upon the proved facts of each
case. For the application of Exception 4, it is not
sufficient to show that there was a sudden quarrel
and there was no premeditation. It must further be
shown that the offender has not taken undue
advantage or acted in a cruel or unusual manner.
The expression "undue advantage" as used in the
provision means "unfair advantage".
(Emphasis supplied)
"11......... After the injuries were inflicted the injured
had fallen down, but there is no material to show that
thereafter any injury was inflicted when he was in a
helpless condition. The assaults were made at
random. Even the previous altercations were verbal
and not physical. It is not the case of the prosecution
that the accused-appellants had come prepared and
armed for attacking the deceased. ............. This goes
to show that in the heat of passion upon a sudden
quarrel followed by a fight the accused persons had
caused injuries on the deceased, but had not acted in
a cruel or unusual manner. That being so, Exception
4 to Section 300 IPC is clearly applicable....…"
(Emphasis supplied)
In , the appellant
64. Sukbhir Singh v. State of Haryana, (2002) 3 SCC 327

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29
caused two Bhala blows on the vital part of the body of the deceased that
was sufficient in the ordinary course of nature to cause death. The High
Court held that the appellant had acted in a cruel and unusual manner.
Reversing the view taken by the High Court, Hon'ble Apex Court held that
all fatal injuries resulting in death cannot be termed as cruel or unusual for
the purposes of Exception 4 to Section 300 IPC. In cases where after the
injured had fallen down, the appellant-accused did not inflict any further
injury when he was in a helpless position, it may indicate that he had not
acted in a cruel or unusual manner. The Court observed as under :-
"19..........All fatal injuries resulting in death cannot
be termed as cruel or unusual for the purposes of not
availing the benefit of Exception 4 of Section 300
IPC. After the injuries were inflicted and the injured
had fallen down, the appellant is not shown to have
inflicted any other injury upon his person when he
was in a helpless position. It is proved that in the
heat of passion upon a sudden quarrel followed by a
fight, the accused who was armed with bhala caused
injuries at random and thus did not act in a cruel or
unusual manner."
(Emphasis supplied)
65. In Mahesh v. State of M.P., (1996) 10 SCC 668 , where the appellant
had assaulted the deceased in a sudden fight and after giving him one blow
he had not caused any further injury to the deceased which fact situation was
held by this Court to be sufficient to bring the case under Exception 4 to
Section 300 of IPC. This Court held:
"4. ..............Thus, placed as the appellant and the
deceased were at the time of the occurrence, it
appears to us that the appellant assaulted the
deceased in that sudden fight and after giving him
one blow took to his heels. He did not cause any
other injury to the deceased and therefore it cannot
be said that he acted in any cruel or unusual
manner. Admittedly, he did not assault PW 2 or PW
6 who were also present along with the deceased
and who had also requested the appellant not to
allow his cattle to graze in the field of PW 1. This
fortifies our belief that the assault on the deceased
was made during a sudden quarrel without any

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30
premeditation. In this fact situation, we are of the
opinion that Exception 4 to Section 300 IPC is
clearly attracted to the case of the appellant and the
offence of which the appellant can be said to be
guilty would squarely fall under Section 304 (Part I)
IPC......…"
(Emphasis supplied)
66. Coming back to facts of the present case, from the evidence led by both
sides, it is clear that there was sudden altercation between the parties which
resulted in the fatal mishap. As per the FIR version when deceased Shambhu
Sharan Pal along with other persons was going in a jeep to Walterganj to
attend a rally organized by Sadar MLA Jagdambika Pal and when they
stopped the vehicle in front of Dinesh Pal's quarter before the Awas Vikas
gate, MLA Nagar Purv Ram Karan Arya coming from the front stopped his
jeep. Ram Karan Arya abused Shambhu Sharan and said, "Putting a
Congress flag and driving the vehicle, you hit my jeep; why did you hit my
vehicle ?" Shambhu Sharan Pal also uttered some harsh words, whereupon
Ram Karan Arya became angry and fired at Shambhu Sharan, due to which
Shambhu Sharan Pal fell down bleeding and subsequently died. Evidence
also discloses that there was no pre-meditation. Other accused persons had
not been assigned role of causing assault to the deceased or any other overt
act. The offence has been committed by the accused appellant as the
deceased had collided his vehicle with the vehicle of the appellant and when
the appellant asked him as to why he collided the vehicle, the deceased
Shambhu Sharan Pal uttered some harsh words, whereupon Ram Karan Arya
became angry and fired upon him, thus, this goes to show that in the heat of
passion upon a sudden quarrel the appellant had caused injuries on the
deceased. Thus, in our view, in the present case it cannot be said that the
appellant had pre-meditation to commit murder of the deceased. The
appellant did not take any undue advantage nor acted in a cruel or unusual
manner. We have bestowed our best of consideration to the facts of the
present case.
67. In the aforesaid circumstances, we are of the considered view that it is a
case of culpable homicide not amounting to murder within the ambit of
. The offence was committed by the
Exception 4 of Section 300 IPC
appellant with intention of causing death of the deceased. On overall
scrutiny of the facts and circumstances of the present case coupled with the
evidence as have come on record and the principles laid down by the
Hon'ble Supreme Court in the aforesaid cases, we are of the considered
opinion that the offence would be one punishable under Section 304 (Part-I)

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31
of the IPC in view of the fact that the injuries were found to be sufficient in
the ordinary course of nature to cause his death but same were caused in a
sudden fight in the heat of passion upon a sudden quarrel, hence the instant
case falls under the Exception 4 to Section 300 of IPC.
In the result, the criminal appeal is only to the extent that
68. partly allowed
instead of Section 302 IPC, the appellant shall stand convicted for the
offence of culpable homicide not amounting to murder punishable under
Section 304 (Part-I) IPC and would be now sentenced to undergo rigorous
imprisonment for a period of ten years. The fine imposed upon the appellant
and the default sentence awarded to him shall remain unaltered. Upon the
completion of the above period of incarceration and upon the payment of the
fine etc. the appellant shall be released, if not wanted in any other case.
69. On perusal of the impugned judgment and order and the evidence
available on record, we are of the view that since the offence was not
committed in furtherance of common object of all and no overt act has been
assigned to them, the trial court has rightly acquitted the other accused
persons, against whom the aforesaid Government Appeal has been moved
before this court. Hence, the said government appeal filed on behalf of the
State is dismissed .
Copy of this order be placed on the record of government appeal no. 655
70.
of 2024.
71. Copy of the order be sent to the concerned trial court within a fortnight
for compliance.

October 16, 2026
safi
(Jai Krishna Upadhyay,J.) (Siddhartha Varma,J.)
Digitally signed by :-
MAHBOOB SAFI
High Court of Judicature at Allahabad