Full Judgment Text
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
Signature Not Verified
Allahabad in Criminal Appeal No. 1649 of 1983 by
Digitally signed by
ANITA MALHOTRA
Date: 2018.10.26
17:15:40 IST
Reason:
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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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