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Wednesday, November 30, 2016

On a consideration of the totality of the circumstances attendant on the case, we are of the opinion that the conviction of the appellants under Section 304-Part 1 read with Sections 147,148,149 IPC, as recorded by the High Court, is justified. However, in our view, having regard to the singular facts and circumstances, we are inclined to reduce the sentence for the offence under Section 304-Part I/149 IPC to rigorous imprisonment for 7 years. The other sentences are hereby affirmed.


                        IN THE SUPREME COURT OF INDIA


                     CRIMINAL APPEAL NO.  1157  OF 2016
              (ARISING OUT OF S.L.P (CRIMINAL) NO.8415 OF 2016)

RAM AUTAR & ORS.                      .…APPELLANT


STATE OF U.P.                                   ....RESPONDENT

                               J U D G M E N T


(1)   Leave granted.

(2)   The appellants hereby  assail  the  affirmation  of  their  conviction
under Sections 147,148, 149 Indian Penal Code (for short, hereinafter to  be
referred to as  “IPC”) as recorded by the  Trial  Court.   By  the  decision
impugned, the High Court, however has  altered  their  conviction  from  one
under Section 302 IPC to Section 304-Part I IPC.   Thereby,  the  appellants
now stand sentenced to undergo rigorous imprisonment for  10  years  and  to
pay a fine of Rs.5000/-, in  default,  to  suffer  simple  imprisonment  for
further two months for this offence.  All sentences  have  been  ordered  to
accrue concurrently.

(3)   We have heard Dr. J.P. Dhanda, learned counsel for the appellants  and
Mr. Ravi Prakash Mehrotra, learned counsel for the State.

(4)   The genesis of the arraignment  is  traceable  to  the  incident  that
witnessed the deadly assault on Lalni  @  Raj  Kumar,  the  brother  of  the
informant Gaya Prasad, on 04.04.1982 at 1.00 p.m. within  the  precincts  of
the house of the deceased.

(5)   As the first information laid at 3.15 p.m.  on  the  same  date  would
reveal, in the morning thereof, the cattle of the deceased had strayed  into
the fields of Suraj Bali and others and had allegedly  destroyed  the  Arhar
crop of the accused persons.  On being abused  by  them  (accused  persons),
the deceased herded back the cattle and returned  home  crestfallen.   While
he was sitting in his compound in the afternoon at about 1.00  p.m.  and  in
the company of the informant his  brother,  Gaya  Prasad  PW-1  as  well  as
Sitaram PW-2 and Ram Sajeewan @ Dhunna PW-4, altercation broke  out  between
him and the accused persons  including  the  appellants,  who  resided  next
door, on the same issue.   The  heated  exchanges  that  followed  escalated
tempers, whereupon as per the prosecution, the appellants along with   Suraj
Bali and Chandra Bali  pounced  on  the  deceased,  in  a  body.   On  being
exhorted by Suraj Bali to eliminate the  deceased,  appellant  Deo  Munni  @
Putti, at his instance, brought his gun and fired at Lalni.  As Lalni  fell,
being injured, the  other  accused  persons  joined  in  the  assaults  with
lathis.  The informant and  the  other  two  witnesses  though  intended  to
intervene, they were prevented from doing so, by pointing  the  gun  towards
them.  Lalni died at the spot.

(6)   On the lodgement of the FIR with the police at  about  3.15  p.m.,  as
herein before mentioned, case was registered under Sections 302,147,148  and
149 IPC.  In course of the investigation,  inquest  on  the  dead  body  was
conducted and the sketch map of the place of occurrence was prepared.  After
the charge-sheet was laid against the accused  persons,  charge  was  framed
under Section 302, read with Sections 147/149 IPC against them, they  having
 pleaded “not guilty”.  Additionally, charge under Section 148  also  framed
against appellant Deo Munni @ Putti who was armed  with gun,  as  indicated,
herein before.

(7)   The prosecution examined  as  many  as  six  witnesses  including  eye
witnesses, namely; Gaya  Prasad  (PW-1),  Sitaram  (PW-2),  Ram  Sajeewan  @
Dhunna (PW-4), besides Dr. S.C.  Srivastava  (PW-5)  and  Brahm  Dev  Singh,
Investigating Officer (PW-6).

(8)   On the completion of  the  prosecution  evidence,  statements  of  the
accused persons  were  recorded  under  Section  313  Cr.P.C..    They  also
examined Shyam Lal as their witness in defence.

(9)   The Trial Court, on an exhaustive  appreciation  of  the  evidence  on
record, convicted all the accused persons  under  Sections  302,147,148  and
149 IPC as  mentioned  therein.   They  were  amongst  others  sentenced  to
undergo imprisonment for life for the offence under Section 302  IPC.   They
were sentenced as well for the other offences.

(10)  As referred to hereinabove, the High Court  in  appeal  sustained  the
conviction under Sections  147/148/149  IPC  but  moderated  the  conviction
under Section 302 IPC to one under  Section  304-Part  I  and  the  sentence
therefor was ordained to be rigorous imprisonment for 10 years and  fine  of
Rs.5000/-, in default, simple imprisonment for further two months.

(11)  The learned counsel for the appellants  has  assiduously  argued  that
the prosecution having failed to prove that the  appellants  and  their  co-
accused had been the aggressors who  assaulted  the  deceased  and  that  he
succumbed to the injuries sustained thereby, their conviction and  sentence,
if allowed to stand, would signify travesty  of justice.  According  to  the
learned counsel,  the appellants and the  co-accused,  while  escorting  the
cattle of the deceased from the fields to  the  nearby  cattle  pond,   were
attacked by him and his cohorts, for which DW-1 Shyam Lal had to  open  fire
in self defence.  Without prejudice to this, it has been argued that in  any
view of the matter, there was no pre-meditation or pre-concert on  the  part
of the appellants and the co-accused to attack or assault the  deceased  and
having regard to the incident that had occurred in  the  fields  earlier  in
the day, the sentence awarded by the High  Court  is  unduly  harsh  and  is
liable  to  be  appropriately  scaled  down  in  the  attendant  facts   and

(12)  The learned counsel for the respondent, in refutation, has urged  that
it  having  been  proved  beyond  all  reasonable  doubt  by   unimpeachable
testimony of the eye witnesses, Gaya Prasad (PW-1), Sitaram (PW-2)  and  Ram
Sajeewan @ Dhunna (PW-4) that the  appellants  and  their  co-accused  Suraj
Bali and Chandra Bali had formed an  unlawful  assembly  and  had  with  the
intention of eliminating the deceased, had jointly launched a lethal  attack
by using, amongst others, a fire arm, the conviction recorded  by  the  High
Court, does not merit interference.  According to him, having regard to  the
seriousness of the charges proved, the appellants have been let off  lightly
with the substantive sentence of ten years' rigorous imprisonment.

(13)  We have lent our due consideration to the materials on record as  well
as the competing assertions.  Noticeably, the findings on the  incident  are
concluded  by  concurrent  deductions  of  the  two  courts   below.    This
notwithstanding, we have examined in particular, the  evidence  of  the  eye
witnesses Gaya Prasad (PW-1), Sitaram (PW-2) and Ram Sajeewan @ Dhunna  (PW-
4) as well as that of the Dr. S.C. Srivastava (PW-5), who had performed  the
post-mortem examination on the dead body.

(14)  A close scrutiny of the  evidence  of  the  eye  witnesses  leaves  no
manner of doubt that not only they  have  with  noteworthy  consistency  and
cohesion  authenticated  the  case  of  the  prosecution  in  all   material
particulars, they have identified as  well  the  appellants  and  their  co-
accused and also  have  provided  graphic  details  of  the  events  in  the
sequence in which the  same  unfolded  at  the  place  of  occurrence.   The
testimony of the Dr. S.C. Srivastava (PW-5) reveals fire arm wounds  on  the
head, chest and right upper arm of the deceased together with  the  multiple
abrasions and contusions on various parts of the body.   According  to  this
witness, death had occurred due to shock and haemorrhage as a result of  the
ante-mortem injuries.

(15)  Noticeably this  witness also  referred  to  lacerated/incised  wounds
and contusions sustained by the appellants Deo Munni, Ram Autar and the  co-
accused Suraj Bali which, according to  the  medical  expert,  were  however
simple in nature.

(16)  Though an attempt had been made at the trial by the defence  to  shift
the place of occurrence to fit in with their version, as offered  in  course
of the statements under Section 313 Cr.P.C., and  urged  in  course  of  the
arguments, the evidence of the Investigating Officer Brahm  Dev  Singh  (PW-
6), when considered along with the sketch map, Ex.  A-12,  the  same  stands
belied.  That the place of occurrence was, as cited by the  prosecution  is,
also corroborated by the blood stained earth collected therefrom  in  course
of the investigation. That the blood was  human blood   also  stands  proved
by the report of the chemical  analyst.   These  proved  facts,  in  a  way,
demolish the defence version totally in all respects.

(17)   Though,  at  the  trial  as  well  as  before  the  High  Court,  the
prosecution  case  was  sought  to  be  discredited  for  the   absence   of
explanation of the injuries suffered by some  of  the  accused  persons,  in
absence of  any  evidence  forthcoming  that  at  the  relevant  time,   the
deceased was armed or that the prosecution witnesses  present did  launch  a
counter attack, the courts below rightly  dismissed  this  plea.   The  High
Court, noticing the injuries, which the Dr. S.C. Srivastava  had  identified
to be simple in nature, did conclude, had been self inflicted  in  order  to
contrive a defence.  Bearing in mind the evidence available and the  overall
scenario, this finding, in our estimate, cannot be repudiated to  be  absurd
or illogical.

(18)   In  the  ultimate  analysis,  however,  one   cannot   overlook   the
progression of events that occurred since the incident of  trespass  of  the
cattle of the deceased in the fields of Suraj Bali  and  others  leading  to
abuse and unpleasantness between them earlier in the day.  The  second  bout
of bickerings precipitated in the  afternoon  on  the  same  day  while  the
deceased, appellants and the co-accused were  sitting  in  their  respective
compounds, abutting each other.  The witnesses of the  incident  though,  at
the preliminary stages, did advise  the  deceased  to  go  in  and  avoid  a
brewing confrontation, he  obdurately  refused  to  do  so  and  stoked  the
growing indignation so much so that eventually  he  was  shot  at  and  also
assaulted by the appellants and their companions.  The materials  on  record
do suggest that the deceased did also contribute to the  escalating  tension
and in the process the accused persons jointly unleashed attack  on  him  by
lathis and also shot him.  A sudden  spurt  of  irreversible    events  thus
got triggered thereby.

(19)  In the fact situation that developed in quick succession,  we  are  of
the comprehension that there was as such no pre-meditation or prior  concert
on the part of the accused persons to commit murder of Lalni.  The  incident
happened on the spur of the moment and in an uncontrollable, embittered  and
agitated state of enragement, thus depriving the accused  persons  of  their
power of self control.  Though during  the  assaults,  the  accused  persons
were understandably aware of the likely results thereof, it is difficult  to
perceive that they had any common object of eliminating the deceased.   This
is more so as the evidence  discloses  that  the  accused-appellants,  first
informant as well as the deceased  did descend from a  common  ancestor  and
that their grandfathers were  real  brothers.   The  evidence   demonstrates
that the accused- appellants do not have any  infamous  criminal  background
as well.  The incident had occurred in the year 1982 and as  on  date,  more
than three decades have passed.

(20)  On a consideration of the totality of the circumstances  attendant  on
the case, we are of the opinion that the conviction of the appellants  under
Section 304-Part 1 read with Sections 147,148,149 IPC, as  recorded  by  the
High Court, is justified.  However,  in  our  view,  having  regard  to  the
singular facts and circumstances, we are inclined  to  reduce  the  sentence
for the offence under Section 304-Part I/149 IPC  to  rigorous  imprisonment
for 7 years.  The other sentences are hereby affirmed.

(21)  The appeal is thus partly allowed with the above  modifications.   The
Trial Court would take the necessary follow up  steps  to  ensure  that  the
appellants serve out the sentence as awarded.

                                      (DIPAK MISRA)

                                      (AMITAVA ROY)

NOVEMBER 28, 2016.

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