Ram Narain And Others vs State Of U.P.
2021 Latest Caselaw 1289 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on: 13.1.2021
 
Delivered on:21.1.2021
 
Court No. - 89
 
Case :- CRIMINAL APPEAL No. - 653 of 1983
 
Appellant :- Ram Narain And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- G.P. Dixit,Ashutosh Dwivedi
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Rajeev Misra,J.

1. This appeal under section 374 (2) Cr.P.C. has been filed by accused appellants Ram Narain and Diwari Lal, challenging judgement and order dated 9.3.1983, passed by Mr. R.C. Pandey, the then IVth Additional Sessions Judge, Etawah in Sessions Trial No. 363 of 1979 (State Vs. Ram Narain) and Sessions Trial No. 55 of 1980 (State Vs. Diwari Lal) arising out of Case Crime No. 169 of 1979 under sections 147, 148, 149/307 IPC, P.S. Diviyapur, District Etawah.

2. By means of impugned judgement and order dated 9.3.1983 appellant-1 Ram Narain has been convicted and sentenced to one year rigorous imprisonment under section 148 IPC and 5 years rigorous imprisonment under sections 307/149 IPC. Similarly, appellant-2 Diwari Lal has been convicted and sentenced to six months rigorous imprisonment under section 147 IPC and 5 years rigorous imprisonment under sections 307/149 IPC. Both the sentences awarded to appellants are to run concurrently.

3- During pendency of appeal, appellant-2 Diwari Lal died. Consequently, present appeal, in respect of appellant-2 was abated vide order dated 16.12.2013.

4. As per prosecution case, accused persons formed an unlawful assembly and in fulfilment of common object of the said assembly committed the offence of rioting and also attempted to commit murder of Bhagirath and others along with their associates in the night of 15/16.9.1979 in the paddy filed of Nand Lal situate in vilage Mainpoot within the circle of police station Diviyapur, District Etawah.

5- Prosecution story as unfolded in F.I.R. dated 16.9.1979 (Ext. Ka-2) reveals that two Police constables namely, Constable 351-Shyam Singh and Constable 117-Ram Singh were on beat. When aforesaid two constables reached near village Kamalpur, they heard sounds of gun fire coming from the direction of village Muchaha. Immediately, these two constables hurriedly rushed to village Muchaha. Upon reaching aforesaid village, they met Khoob Singh, Sarman, Ajab Singh, Mathura Singh, Dhoom Singh and Mohhabat Singh of village Muchaha, who during course of conversation disclosed that a dacoity has been committed in the house of Jagram Singh Banjaro of village Muchaha and the dacoits have fled a short time ago in direction of village Mainpoot. On account of gun shots fired by dacoits, one Bhoop Singh of village Muchaha has been injured.

6. Leaving injured Bhoop Singh in safety of some villagers, aforesaid two constables in company of Khoob Singh and others, immediately proceeded in direction of village Mainpoot, shouting on their way to nab the culprits. On shouts raised by these persons, Bhagirath, Rambharose, Ramprasad, Shiv Singh each armed with lathi and torch, Lajjaram armed with his licensed gun and Prag Singh also armed with his licnesed gun as well as Babu Singh, Janki Prasad, Shivram Singh and Mukhram Singh, Narendra and some other persons armed with lathi and torch respectively came and met the two Police Constables.

7. All above named persons then proceeded together in direction taken by culprits and ultimately encircled them in paddy field of Nandram in village Mainpoot, upon which culprits with an intention to cause death, fired three to four shots. In retaliation Prag Singh, Ajab Singh and Lajja Ram also fired from their licensed guns, whereas the two Police constables also fired two shots each, in self defence.

8. As a consequence of aforesaid, and after applying some force, some of the culprits were nabbed by aforesaid party at around 2-2:30 am. whereas some of the accused managed to escape and could not be apprehended even after chase.

9. Arrested accused disclosed their names as Ram Das S/o Kallu Kurmi, resident of village Nainpur, P.S. Sikandra, District Kanpur, Tej Ram S/o Ram Das Dhobi, resident of village Behta, P.S. Pali, District Hardoi and Ram Narayan S/o Ram Kumar Kachi R/o village Diviyapur, P.S. Diviyapur, District Etawah.

10. Upon arrest, above named two Police constables recovered a lathi from the person of accused Ram Das, a hockey from the person of accused Tej Ram and a Kanta (a sharp edged weapon fixed to a rod) from the person of accused Ram Narain. Upon enquiry they disclosed names of fled away accused as Ram Kishan, Chotelal @ Varati, Lamba @ Jaipal and Diwarilal, who were seen in the light of torches. They further disclosed that accused who have escaped from the spot carried their weapons as well as goods which were looted with them. Accordingly, Constable 351, Shayam Singh prepared a memo dated 16.09.1979 (Ext. Ka.-1) regarding arrest of above named three accused, recovery of empties (regarding four shots fired by Police and four shots fired by persons accompanying above named police constables) as well as weapons/articles recovered from arrested accused persons.

11. Subsequently, Constable 351 Shyam Singh submitted aforesaid memo dated 6.9.1979 (Ext.Ka-1) which was scribed by himself regarding occurrence, arrest and recoveries made in the incident which occurred on 15/16.9.1979 at around 2:30 am at P.S. Diviyapur. District Etawah. Same was entered in general diary of P.S. Diviyapur, District Etawah. Carbon copy of same is on record as Ext.Ka-3.

12. On basis of aforesaid memo dated 16.9.1979 (Ext.Ka-1), Head Moharir Bramha Swaroop Mishra of Police Station Diviyapur, District Etawah prepared the check F.I.R. dated 16.9.1979 (Ext.Ka-2). Consequently, Case Crime No. 169 of 1979 under sections 147, 148, 149/307 IPC, P.S. Diviyapur, District Etawah came to be registered. S.I. Ram Das Tyagi who was posted as Sub-Inspector at Police Station- Diviyapur, District Etawah was appointed as Investigating Officer.

13. Perusal of F.I.R. dated 16.9.1979 goes to show that Constable 351 Shyam singh has been nominated as First Informant whereas Ramdas, Tejram, Ramnarayan (who were arrested on the spot) and Ram Kishan, Chote Lal @ Barati, Lamba @ Jaipal and Diwarilal ( who fled from the spot) were nominated as named accused.

14. After above mentioned F.I.R. was registered, Police prepared separate letters for medical examination (Majroobi Chitthi) of injured Bhagirath and Ram Narayan. Thereafter injured were examined at Primary Health Centre, Diviyapur, District Etawah by Dr. H.C. Yadav (P.W.8).

15. As per medico-legal report of injured Bhagirath dated 16.9.1979 (Ext.Ka-6), he sustained following injuries:

(I) Fire arm wound ½ cm x ½ cm x 1.5 cm situated on back and inner part of right upper arm surrounding skin is normal.

(ii) Fire arm wound 2 ½ cm x 3/4cm x skin deep situated obliquely on middle of inner part of right upper arm. Surrounding skin is normal

(iii) Fire arm wound 1 cm x ½ cm 1 ½ cm situated on inner and front aspect of right upper arm. Surrounding skin is normal.

(iv) Fire arm wound 4 ½ cm/1 cm x muscle deep situated vertically on back side of right thumb. Surrounding skin is normal.

(v) Firearm wound 2 1/2cm x ½ cm x muscle deep situated vertically on outer side base of back of right thumb. It is situated on upper part. Surrounding skin is normal.

(vi) Fire arm wound 2 ½ x ½ cm x muscle deep situated vertically on outer and back side of right thumb in lower part. Surrounding skin is normal. Pellets palpable at base of right thumb.

(vii) Fire arm wound 3 ½ cm x ½ cm x muscle deep situated obliquely on outer side of first and second digit of right index finger. Surrounding skin is normal.

(viii) Fire arm wound 1 cm x ½ cm x muscle deep situated obliquely on back of second digit of right index finger. Surrounding skin is normal.

(ix) Fire arm wound 2 ¼ cm x ½ cm x muscle deep situated vertically over front and outer part of third digit of right index finger. Surrounding skin is normal.

16. In the opinion of Doctor, injuries are simple caused by fire arm fired from a long distance. The surrounding skin of all injuries was found normal. The duration of all injuries was about ¼ days.

17. Similarly, as per medico-legal report of injured Ram Narain dated 16.9.1979, (Ext. Kha-10), he sustained following injuries:

(I) Swelling without colour change 18cm x 10 cm or outer anterior side middle third of right thigh situated obliquely.

(ii) Swelling without colour change 8cm x 8cm over font of right knee joint situated obliquely.

(iii) Contusion reddish colour 13 cm x 3 cm situated obliquely over front middle part of left thigh.

(iv) Swelling without colour change 8 cm x 4 cm situated on middle and tip of scalp situated obliquely.

(v) Contusion reddish in colour 3 cm x 1 ½ cm over back side tip of right index figure.

18. According to medical opinion, all injuries were simple and caused by blunt object. The duration of all injuries was stated to be about 2/3rd days old approximately.

19. Investigating Officer, S.I Ram Das Tyagi, commenced investigation of above mentioned case crime number. He proceeded to the place of occurrence and on pointing of informant Constable-351 Shyam Singh prepared site plan dated 16.9.1979 (Ext.Ka-9) regarding place of occurrence.

20. Investigating Officer, thereafter, prepared memo of recovery dated 16.9.1979 (Ext.Ka-5) of torches, belonging to Prag Singh and Babu Singh and gave them in supurdigi of their rightful owners followed by another recovery memo dated 16.9.1979 (Ext.Ka-7) in respect of torch belonging to Constable-351 Shyam Singh and gave it in his supurdigi.

21. Accused Diwari Lal surrendered before Court below. He was, thereafter, subjected to identification which exercise was conducted by P.W.6 S.K. Trivedi. He, accordingly prepared memo of same i.e. (Ext. Ka-4).

22. Investigating Officer, on the basis of material collected during course of investigation formed an opinion that a charge-sheet should be submitted. He, accordingly, submitted charge-sheet dated 12.10.1979 (Ext.ka-8) against accused Ram Das, Tej Ram, Ram Narain whereby, aforesaid accused were charge-sheeted under sections 147,148, 149/307 IPC. Upon submission of aforesaid charge-sheet dated 12.10.1979, cognizance was taken by concerned Magistrate vide cognizance taking order dated 24.10.1979. As offence complained of was triable by Court of Sessions, accordingly, concerned Magistrate, vide committal order dated 26.11.1979, committed the case to Court of Sessions. Consequently, S.T. No. 363 of 1979 (State Vs. Ram Das, Tej Ram, Ram Narain) came to be registered.

23. Thereafter, Investigating Officer submitted another charge-sheet dated 13.12.1979 (Ext.Ka-10) against accused Diwari Lal, whereby he was charge-sheeted under sections 147, 148, 149/307IPC. Upon submission of this Charge-sheet dated 13.12.1979, cognizance was taken by concerned Magistrate vide Cognizance Taking Order dated 22.12.1979. Thereafter, case was committed to Court of Sessions vide committal order dated 11.2.1980, as offence complained of was triable by Court of Session. Consequently, S.T. No. 55 of 1980 (State Vs. Diwari Lal) came to be registered.

24. Court below vide Framing Of Charge orders dated 14.3.1980, passed in Sessions Trial No. 363 of 1979 (State Vs. Ram Narain) framed separate and distinct charges against accused Ramdas and Tej Ram under section 147 and sections 307/149 IPC, and under Sections 148 and 307/149 against accused Ram Narain.

25. Thereafter, vide framing of charge order dated 19.8.1980, passed in S.T. No. 55 of 1980 (State Vs. Diwari Lal), charges were framed against accused Diwari Lal firstly under section 147 IPC and secondly, under sections 149/307 IPC.

26. Subsequently, both sessions trials were consolidated and therefore, tried together.

27. During pendency of trial, accused Ramdas and Tej Ram absconded. Accordingly, their trial was separated and came to be registered as S.T. No. 363A of 1979. Accused Tej Ram subsequently died. As a result, only two of the named accused namely Ram Narain and Diwari Lal were tried by court below.

28. Accused persons denied the charges so framed and demanded trial Consequently, burden fell upon prosecution to prove the charges framed against accused.

29. Prosecution, in discharge of its burden, adduced following witnesses:

P.W.1-Raj Kishore

P.W.2-Bhoop Singh

P.W.3-Munna

P.W.4-Constable-351 Shyam Singh (First-informant)

P.W.5-Ajab Singh (Independent witness)

P.W.6-S.K. Trivedi SDM (He conducted identification exercise of accused Diwari Lal

P.W.7 Prag Singh (Independent witness)

P.W.8- Dr. H.C. Yadav Medical Officer, P.H.C. Diviyapur, District Etawah who examined the injured.

30. Apart from relying upon testimonies of aforesaid witnesses, prosecution also relied upon documentary evidence which is tabulated herein under;

Ext. Ka-1 Memo of recovery dated 16.9.1979, prepared by P.W.4 Shyam Singh and also proved by PW.4.

Ext. Ka-2 Check FIR dated 16.9.1979 prepared by H.M. Bramha Swaroop Mishra proved by P.W.-4 Shyam Singh.

Ext. Ka-3 Copy of G.D. Entry prepared by H.M. Bramha Swaroop Mishra and proved by P.W.4 Shyam Singh

Ext. Ka-4 Identification Memo prepared and proved by P.W.6 S.K. Trivedi, S.D.M., Auraiya, District Etawah

Ext. Ka-5 Recovery Memo of Torch, prepared and proved by Constable-351 Shyam Singh.

Ext. Ka-6 Injury Report pertaining to Bhagirath prepared and proved by P.W.8, Doctor H.C. Yadav Medical Officer, P.H.C. Diviyapur, District Etawah.

Ext. Ka-7 Recovery Memo of Torch prepared and proved P.W. 4 Constable-351 Shyam Singh

Ext. Ka-8 Charge Sheet dated 12.10.1979

Ext. Ka-9 Site Plan

Ext. Ka-10 Charge Sheet dated 13.12.1979

31. P.W.1 Raj Kishore, P.W. 2 Bhoop Narain and P.W. 3 Munna identified accused Ram Das in Court. Their testimonies are relevant only regarding above. P.W.1 and P.W.2 were cross-examined by accused Ram Das but their testimonies could not be dislodged. Consequently, identity of accused Ram Das stood proved before Court.

32. P.W. 4 Constable- 941 Shyam Singh is the scribe of memo dated 16.9.1979 (Ext.Ka-1). It is on the basis of aforesaid memo that check F.I.R. dated 16.9.1979 (Ext. Ka-2) was prepared by Head Moharir Bramha Swaroop Mishra of P.S. Diviyapur, District Etawah. Consequently, Case Crime No. 169 of 1979 under sections 147, 148, 149/307 IPC, P.S. Diviyapur, District Etawah came to be registered. This witness has proved Ext.Ka-1 (recovery memo), Ext. Ka-2 (Check F.I.R dated 16.9.1979) and Ext. Ka-3 (copy of G.D.). This witness has clearly stated as to how he reached village muchaha when he was on beat along with fellow constable. He has clearly deposed in unambiguous terms regarding the manner of incident, its consequences and how three of the accused namely, Ram Das, Tej Ram and Ram Narain were arrested. He has further deposed in categorical terms regarding the exercise undertaken subsequent to arrest of above named accused. Defence cross-examined this witness but failed to dislodge his testimony. This witness inspite of grilling cross-examination by defence has remained consistent and prosecution failed to cull out any such statement from him on the basis of which his testimony could be disbelieved on account of contradiction exaggeration or embellishment. Consequently, testimony of this witness was held to be worthy of trust by court below and therefore, relied upon.

33. P.W.5 Ajab Singh is an independent witness. He has categorically stated that upon hearing sounds of gun shots etc, he reached the place were daocity was committed. He has further stated about the scene which emerged after act of daocity had been committed. This witness has also stated that he saw the dacoits when they were fleeing away from the place of occurrence in the light of fire that was on account of an act of dacoits as well as in the light of torch held by him. He has then proceeded to state as to how he accompanied the two Police Constables in search of culprits and how ultimately, the culprits were encircled in the paddy field of Nandram of village Mainpoot. He has also stated with regard to the subsequent events which took place after three accused namely, Ram Das, Tej Ram and Ram Narain were nabbed. This witness has further stated that out of the four accused who ran away two of the accused were armed with guns whereas, other two accused were armed with country made guns. He has further stated as to how he identified accused Diwari Lal in identification parade held in jail. This witness was cross-examined by defence but he remained firm. As such, he could not be dislodge by defence. Court below found the presence of this witness at the time and place of occurrence established beyond doubt. Consequently, his testimony was held worthy of reliance and therefore, relied upon.

34. P.W.6 S.K. Trivedi was posted as S.D.M. Auriya, District Etawah at relevant point of time. He undertook the exercise of getting accused Diwari Lal identified. This witness prepared the memo of identification exercise (Ext. Ka-4) and proved the same. Inspite of cross-examination, his testimony could not be dislodged.

35. P.W.7 Prag Singh is an independent witness. His testimony is similar to the testimony of P.W.4 Shyam Singh, regarding circumstances preceding the occurrence, manner of occurrence and subsequent events which took place after the occurrence. This witness has also supported the prosecution story as unfolded in F.I.R. Defence cross-examined this witness but failed to dislodge him. As a result, presence of this witness at the time and place of occurrence was proved beyond doubt. Consequently, his testimony was relied upon by Court below.

36. P.W.8 Dr. S.C. Yadav was posted as Medical Officer, PHC Diviyapur, District Etawah at the relevant point of time, this witness had examined injured Bhagirath and Ram Narain. He prepared injury reports dated 16.9.1979 (Ext.Ka-6 and Ext. Kha-10) and proved the same. According to this witness, injuries sustained by injured Bhagirath could be caused by fire arm. All injuries found on body of injured were simple caused by fire arm fired from a long distance. Surrounding skin of all injuries was found normal. The duration of all injuries was about ¼ days. In cross-examination, this witness has, however, stated that injuries were 2/3 days old and approximately caused at around 2:30 am in the night of 15/16.9.1979. Prosecution story stands corroborated from testimony of this witness. Defence miserably failed to dislodge this witness.

37. After prosecution evidence was over accused persons in proof of their innocence brought in defence evidence and accordingly, adduced Balram Singh as D.W.1. They also adduced documentary evidence i.e. injury report of accused Ram Narain wrongly mentioned as Ext. Kha-10 instead of Ext.Kha-1.

38. D.W.1 Balram Singh was adduced to prove the defence set up by accused Ram Narain that he was arrested from his house and not from place of occurrence. This witness in his examination-in-chief has stated that accused Ram Narain was arrested from his house on 15.9.1979. However, in cross-examination, this witness could not establish his aforesaid statement. Court below, accordingly, disbelieved this witness.

39. After the stage of evidence was over, accused persons were examined under section 313 Cr.P.C. for their version of occurrence. All the adverse circumstances and material sought to be relied upon by prosecution were disclosed to accused in question answer form. They denied most of the questions put to them by submitting that it is false or they have no knowledge of same or they have been falsely implicated on account of party politics. As such accused persons denied their complicity in the crime in question and pleaded not guilty.

40. On behalf of accused, it was urged before Court below that accused Ram Narain was arrested from his house. Accused Diwari Lal was shown to witness by Police, when he was arrested.

41. Aforesaid submissions urged on behalf of accused were disbelieved by court below. Upon evaluation of material on record, court below found that following undisputed facts have emerged as defence has neither disputed nor challenged the same. It has not been disputed that Bhagirath of village Ajab ka Purwa received fire arm injury on his person in the night of 15/16.9.1979, when two Police Constables namely, Constable-351 Shyam Singh (P.W.4) and Constable-117 (Ram Singh) were on beat. It is also not disputed that injured Bhagirath did not receive injury in the manner alleged by prosecution. It is also not disputed that complainant and his associate constables were not on petrol duty in the night of 15/16.6.1979. There is also no challenge to the fact that the aforesaid Police personnel along with others chased the dacoits on aforesaid date. There is no challenge to the fact that dacoity was committed in the night of 15/16.9.1979 in the house of Khoob Singh and Sharman Singh of village Mochaha.

42- On the aforesaid undisputed facts and concluded facts, court below proceeded to examine credibility and reliability of P.W.4. Court below concluded that P.W.4 complainant Shyam Singh in his testimony has clearly stated about the fact that he was on petrol duty in the night of 15/16.91979. This witness has further stated that he heard shots of gun fire coming from village mochaha at around in the night when he reached village Kamalpur. He has, thereafter, deposed how he met various other person who accompanied him along with his fellow Policeman in search of dacoits. He has thereafter narrated the entire occurrence, consequences thereof, and ultimately, how some of the accused person were nabbed on spot and taken into custody at P.S. Diviyapur, District Etawah.

43- Court below scrutinized the testimony of this witness and found that the defence has failed to dislodge this witness. Court below concluded that there is nothing worth mentioning in cross examination of this witness to suggest that no such incident as alleged by prosecution took place resulting in arrest of three accused persons namely, Ram Das, Tej Ram and Ram Narain on the spot.

44. Court below has convicted and sentenced appellants under Sections147, 148, 307/149 I.P.C. Therefore, in order to ascertain as to whether in facts and circumstances of the case, conviction and sentence of appellants under aforesaid Sections i.e. 147, 148, 307/149 I.P.C. is sustainable or not it shall be useful to reproduce aforesaid sections, their ingredients, judicial pronouncements regarding same and then evaluate on the basis of evidence on record as to whether their conviction under aforesaid sections in present case is sustainable or not. The same read as under:-

Section 147: Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Essential Ingredients

(I) That the accused persons, being five or more in number, formed an unlawful assembly.

(ii) That they were animated by a common object.

(iii) That force or violence was used by the unlawful assembly or any member of it in prosecution of the common object.

Section 148- Whoever is guilty of rioting , being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Essential Ingredients

(I) That there was an unlawful assembly;

(ii) That there was use of force of violence by the members of such an assembly;

(iii) That accused was a member of such assembly;

(iv) That the accused, in prosecution of the common object of such assembly, used force.

Section 149. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

Essential Ingredients of Section 149 IPC-

(I) That one should be a member of an unlawful assembly,

(ii) That in prosecution of the common object of that assembly, an offence should be committed by a member of that unlawful assembly, and

(iii) That the offence should be of such a nature that the members of that assembly knew that offence to be likely to be committed in prosecution of their common object.

Section 307: Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.--2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.] llustrations

(a) A shoots at Z with intention to kill him, under such circum­stances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.

(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.

(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of 3[the first paragraph of] this section.

(d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence defined in this section. A places the food on Z's table or delivers it to Z's servant to place it on Z's table. A has committed the offence defined in this section."

(i) That the accused did an act;

(ii) That the act was done with intention or knowledge and under such circumstances to cause a bodily injury as the accused knew to be likely to cause death or that such bodily injury was in the ordinary course of nature to cause death, or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death;and

(iii) That the accused had no excuse for incurring the risk of causing such death or injury.

45. In order to constitute an offence under Section 307 I.P.C. two ingredients of the offence must be present (a) an intention of or knowledge relating to commission of murder: and (b) the doing of an act towards it. Vide Parsuram Pandey and Ors. Vs. State of Bihar (2004) 13 SCC 189.

46. In Prakash Chandra Yadav Vs. State of Bihar and others AIR 2007 Supreme Court (Suppl.) 488, Court observed as under in paragraph 12, for recording a conviction under Section 307 IPC.

"12. From a bare perusal of the said provision, it is evident that first part thereof does not contemplate that receipt of any injury on the part of the victim is a pre-requisite for convicting an accused thereunder. In the event injuries are received, the second part of  Section 307 would be attracted. The necessary ingredients for attracting the first part of Section 307 of the Indian Penal Code is intention or knowledge. The legal position would be evident from the illustration (c) appended to the said provision which reads as under: (c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section."

47. What would be the parameters for awarding a conviction under Section 307 I.P.C. was considered in State of M.P. Vs. Imrat and another AIR 2008 Supreme Court 2967, wherein Court held as under in paragraphs 11 and 12:-

"11. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.

12. This position was highlighted in State of Maharashtra v. Balram Bama Patil and Ors. (1983 (2) SCC 28), Girija Shanker v. State of Uttar Pradesh (2004 (3) SCC 793), R. Parkash v. State of Karnataka (JT 2004 (2) SC 348) and State of M.P. v. Saleem @ Chamaru and Anr. (2005 (5) SCC 554)."

48. In State of M. P. Vs. Kanshi Ram and others AIR 2009 Supreme Court 1642, following has been observed in paragraphs 10, 11 and 12 as to what would constitute an offence under Section 307 IPC:-

"10. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.

11. This position was highlighted in State of Maharashtra v. Balram Bama Patil and Ors. (1983 (2) SCC 28), Girija Shanker v. State of Uttar Pradesh (2004 (3) SCC 793), R. Parkash v. State of Karnataka (JT 2004 (2) SC 348) and State of Madhya Pradesh v. Saleem @ Chamaru & Anr. [2005 (5) SCC 554].

12. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case.The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of the injury."

49. After considering above noted decisions, a learned single judge of this Court in Ganesh and another Vs. State of U.P. reported in 2012 (3) Allahabad Criminal Rulings concluded as follows in paragraphs 15 and 17:-

"15. Turning to the harangued contention that crime committed by the appellants will not be one under Section 307 IP.C., I find that there is much force in that castigation. For establishing charge of attempt to murder under Section 307, I.P.C. what has to be established, clear of all doubts, that accused necessarily possessed an intention to commit murder. this is sine qua non ingredient for that offence and absence of it will catapult accused case out of it. Voluminous judicial pronouncements., both by this Court has firmly laid down trite law that neither the injury nor it's nature is the guiding factor for making out of an offence under Section 307, I.P.C., but the primary and sole criterion is intention to commit murder. Although weapon used, site of injury caused, nature of injury, circumstance under which it is caused, attending facts and circumstances all the relevant factors to determine intention to commit murder but what cannot be eschewed from being proved to the hilt is the possessed intention to commit murder. In this respect, reliance an be placed on various Apex Court decisions, some of which are cited hereunder as exemplars.

17. Applying the reasoning laid down in by the Apex Court in the instant facts and circumstances, it is seen that a single blow was given to the injured at the spur of moment. Incident started because of tilling of soil. There was no previous enmity and none of the sides has any animus against each others. In respect of possession of field, there has been no litigation between both the sides. The doctor has nowhere stated that the injury sustained by the injured was grievous nature or dangerous to life. If the appellants harbingered an intention to commit murder. Ganesh would have pierced the appear into the chest of the injured with such force as would have caused his death, which he did not do. He never made any attempt to assault him with lathi, though he had carried it alongwith him. In such a view, looking to the entire facts and circumstances and the background in which the incident had occurred. It does not seems that the appellants has an intention to commit murder and, therefore, their conviction under Section 307 I.P.C. is indefensible and has to be scored out. Proven guilt of the appellants does not cross boundary of Section 324 I.P.C and it is only for that crime that the appellants can be convicted.

50. At this stage, reference be made to Sarju Prasad Vs. State of Bihar, reported in AIR 1965 SC 843 wherein, an identical question came up for consideration before Apex Court as involved in present appeal. Paragraphs 1 and 7 of above judgement are relevant for the controversy in hand. Accordingly, same are reproduced herein under:

"1. While granting special leave in this appeal from a judgment of the Patna High Court this Court restricted it only to one question and that is whether the act of the appellant amounts to an offence under Section 307, Indian Penal Code.

7. Having said all this we must point out that the burden is still upon the prosecution to establish that the intention of the appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in Section 300, Indian Penal Code. For, unless the prosecution discharges the burden the offence under Section 307, I. P. C. cannot possibly be brought home to the appellant The state of the appellant's mind has to be deduced from the surrounding circumstances and as Mr. Kohli rightly says the existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Here, the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack. On the other hand he points out that as the appellant had no enmity with Shankar Prasad that neither of them even knew each other and that as the appellant inflicted the injury on Shankar Prasad only to make him release the wrist of Sushil while Sushil was in the act of stabbing Madan Mohan he cannot be said to have had the motive to kill Shankar Prasad and, therefore, no intention to cause murder or to cause any injury which may result in death could be inferred. Now, it is the prosecution case that about a week before the incident Sushil, for certain reasons, had given a threat to Madan Mohan to the effect that he would be taught a lesson and according to the prosecution Sushil and the appellant Sarju were lying in wait for Madan, Mohan in the chowk on the day in question with chhuras with the intention of murdering him. The prosecution wants us to infer that these two persons also had the intention of murdering any one who went to the rescue of Madan Mohan. It seems to us that from the facts established it cannot be said that the appellant had the intention of causing the death of Shankar Prasad or of any one who went to Madan Mohan's rescue. If such were his intention then another significant fact would have possibly, though not necessarily, deterred him and that is that Madan Mohan and Shankar Prasad were not the only persons there at that time but were accompanied by some other persons. Moreover the incident occurred in broad day light in a chowk which must be a well-frequented area. It is not easy to assume that in such circumstances the appellant could have intended to commit a crime for which the law has provided capital punishment. "

51. I have heard Mr. R.C. Yadav, learned counsel for appellant and learned A.G.A. for State. Learned counsel for appellant has placed the testimonies of P.W.4, P.W.5 and P.W.7 as well as the medico legal report of injured Bhagirathi. On the basis thereof, he contends that conviction of appellant-Ram Narain under section 307 IPC, is manifestly illegal. He, further contends that accused Ram Narain was arrested from the spot and a Kanta (a sharp edged weapon attached with rod) was recovered from his person. Injured Bhagirath has received gun shot injuries but no injury which could have been caused by a sharp edged weapon. He, therefore, contends that conviction of appellant-1 Ram Narain under section 307 IPC is manifestly illegal being contrary to the evidence on record.

52. This Court is not unmindful of the legal position that a Court of appeal is the last Court of fact and therefore, a criminal appeal cannot be decided only on the basis of findings recorded by Court below, It is the bounden duty of Appellate Court to re-evaluate and re-appreciate the evidence on record and arrive at its own independent conclusion.

53. Consequently, I have examined the testimonies of P.W.4 , P.W.5, and P.W.7 thread bare who are witnesses of fact. All the prosecution witnesses of fact have been consistent in their testimonies that all seven accused were present at the time and place of occurrence. They were seen in the light of torches and fire. They were, therefore, identifiable. Accused Diwari Lal (since deceased) was subjected to identification exercise and he has been rightly identified. The presence of accused at the time and place of occurrence has been established beyond doubt as per testimony of P.W.4, P.W.5 and P.W.7. On account of gun shots fired from the side of accused, one Bhagirath sustained gun shot injuries. All this goes to show that accused persons had formed an unlawful assembly with a common object. In view of above, the ingredients of Sections 147, 148 and 149 IPC as already noted are fully satisfied in the present case. Hence conviction of appellant-Ram Narain under sections 148 and 149 IPC cannot be faulted with. Consequently, conviction and sentence of appellant-1 Ram Narain under sections148 and 149 IPC is sustained.

54. With regard to conviction of appellant-1 Ram Narain under section 307 IPC, the Court finds that the medical evidence and the recoveries do not support the prosecution insofar as it relates to conviction of appellant-1 Ram Narain under section 307 IPC. Appellant Ram Narain was arrested on spot and a Kanta (a sharp edged weapon fixed to a rod) was recovered from his person. Injured Bhagirath has received gun shot injuries. The doctor who examined injured Bhagirath namely, P.W.8 Doctor H.C. Yadav did not find any incise wound on the body of injured Bhagirath which could have been caused by a sharp edged weapon. Consequenlty, the Court has no hesitation to conclude that conviction of appellant-1 under section 307 IPC is unsustainable and therefore, liable to be set aside. Accordingly, conviction of appellant-1 under section 307 IPC is set aside.

55. However, this Court cannot loose sight of the fact that, occurrence had occurred on 16.9.1979 i.e. more than 41 years ago. Accused-appellants Ram Narain was aged about 26 years in the year 1983. Therefore on date, he aged about 63 years. Whatever enmity existed between the parties must have vanished with the passage of time. The families must have settled and also reconciled with the circumstances. These mitigating circumstances are also required to be considered. Therefore, at this stage, to direct the accused-appellants to undergo detention for offences under Sections 147, 307/149 and Sections 148 and 307/149 IPC would not serve any purpose.

56. This Court in almost similar circumstances in Criminal Appeal No.2025 of 1981 (Ajai Pal and Others Vs. State) dated 7.2.2014 took the following view commensurate with the facts of that case as is explicit from Paragraph 21 of the judgement. Accordingly paragraph 21 of aforesaid judgement is reproduced herein-under:

"21. Considering the facts and circumstances of the case, submissions of the learned counsel for the appellant, looking into the age of the appellant and taking into account that the incident is 35 years old and the appeal has come up for hearing after 33 years and the position of the appellant as on date, it is directed that rest of the sentence of the appellant converted into fine of Rs.15,000/- which shall be deposited by the appellant in the Court of C.J.M., Aligarh within a period of two months from today, out of which Rs.12,000/- shall be paid to the injured Ninnami Singh, if alive, or to his legal heirs, if any, and Rs.3,000/- shall go the State. "

57. Having given my anxious consideration to the facts and circumstances of the case as noted herein above and in view of discussions made above, conviction and sentence of appellant under section 307 IPC is set aside. Conviction awarded to appellant under sections 148 and 149 is converted into fine/compensation in light of the judgement of Apex Court in Ankush Shivaji Gaikwad Vs. State of Maharashta, reported in AIR 2013 SC 2454. Apex Court in aforesaid judgement has discussed in detail about the law relating to grant of compensation where sentence is altered. After considering entire gamut of case law on the subject, Court concluded as follows in paragraph 62:

"62. To sum up: While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 Cr.P.C. would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family."

58. Accordingly, appellant shall pay compensation to the tune of Rs. 25,000/- to the injured and in case injured is not alive, then same shall be paid to heirs of injured Bhaghirath. Aforesaid amount shall be deposited by means of a Bank Draft drawn in favour of Sessions Judge, Etawah within a period of two months from the date of this judgement, who shall disburse the same in the manner indicated above. In case of failure to deposit the amount as directed above, Court below shall get the same recovered as arrears of land revenue as held by Apex Court in Kumaran Vs. State of Kerala and another, (2017) 7 SCC 471. Appellant is on bail. He need not surrender. Bail bonds and surety bonds of accused-appellant Ram Narain and others shall be discharged, forthwith.

59. The appeal is partly allowed.

Order Date :- 21.1.2021

Arshad