Ram Dayal vs State Of U.P.
2021 Latest Caselaw 3257 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
						                Reserved on : 14.10.2020
 
							  Date of delivery:10.03.2021
 
Court No.-90
 
Case :- CRIMINAL APPEAL No. - 944 of 1987
 
Appellant :- Ram Dayal
 
Respondent :- State of U.P.
 
Counsel for Appellant :- P. K. Bisaria, Ashwini Prakash Tripathi (Amicus Curiae), Shivam Agarwal (A.C.)
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Dinesh Pathak,J.

1. Heard Sri Shivam Agarwal, Amicus Curiae appearing on behalf of the appellant and learned A.G.A. for the State.

2. The instant criminal appeal has been preferred challenging the judgment and order dated 27.03.1987 passed by IInd Additional Sessions Judge, Etah in Sessions Trial No.342 of 1986 convicting the present appellant under Section 148 IPC sentencing him to undergo two years rigorous imprisonment, under Section 304 read with 149 IPC sentencing him to undergo four year rigorous imprisonment and under Section 25 of the Arms Act, 1959 (hereinafter referred to as "Arms Act") sentencing him to undergo one year rigorous imprisonment. All the sentences were directed to run concurrently.

3. Factual matrix of the case is that on 16.08.1984 while Jawaharlal (Sub Inspector) along with Shiv Shankarlal Sonkar (Sub Inspector) and four constables namely Rajesh Kumar (C/670), Rajendra Prasad (C/168), Purushottam Singh (C/328) and Umesh Chandra (C/374) were going from Nagla Waley to Daruapur during patrolling in the area of villages- Kishorpur, Nagla Waley Doraee and Daruapur, at about 5.30 A.M., they reached near the agriculture field of Brijpal Jathav, corn crop was standing over there, and saw 5-6 persons armed with gun sitting on the eastern hedge (med) of corn crop filed. Seeing police party they fled inside the corn crop field. Suspecting them as miscreants, S.I. Jawaharal challenged them for counteracting and asked them to disclose their identity. On being challenged, miscreants had fired 3-4 shots from inside the corn crop field, at the police party with intention to kill them. Police personnel escaped by hair's breadth and took position surrounding the corn crop field from the north-western side by lying down on the ground. While the miscreants had been challenged to surrender before the police, they rounded on the police party with abusive language and again fired 3-4 shots from the corn crop field with intention to kill them. This time again they were lucky to be narrowed squeaks and opened fire in their self defence at miscreants. From the side of police party, Jawaharlal (S.I.) has shot one fire from his personal revolver, Shiv Shankarlal Sonkar (S.I.) had fired two shots from his service revolver, Rajesh Kumar (Constable) had fired three shots from the rifle, Umesh Chandra (Constable) had fired three shots, Rajendra Prasad (Constable) had fired two shots and Purushottam Singh (Constable) had fired two shots. Due to retaliation made by police personnel stamped took place amongst the miscreants and they fled away by opening fire from the scene towards village-Daruapur. Police personnel have identified the miscreants as (i) Daulata son of Ram Swaroop Lodhi (ii) Parmeshwari son of Natthu Dhimar (iii) Girish son of Darbari (iv) Rampal Son of Thakur Das (v) Rishipal Gaderia. Umesh Chandra and Purushottam (Constables) had chased the miscreants, but they escaped from their clutches. One miscreant Ram Dayal (accused-appellant herein), inflicted bullet injury on his legs, had been caught hold/arrested by police personnel nearby the corn crop field. On search one country made Single Barrel Breech Loading Gun (hereinafter referred to as "SBBL Gun") of 12 bore, eight live cartridges, out of that two were missed and one used cartridge from barrel of gun were recovered from his possession. From the corn crop field, police party had collected six empty cartridges and sealed in a cloth. Recovered gun and cartridges were also sealed separately. Ten empty cartridges fired from rifle and two empty cartridges fired from service revolver by police personnel were sealed and kept in a separate packet. Empty cartridge fired from the personal revolver of informant namely, Jawaharlal (S.I.) could not be recovered.

4. In this backdrop, FIR has been lodged by Jawaharal (S.I.) dated 16.08.1984 at about 10.10 A.M. under Sections 147, 148, 149 and 307 IPC and under Section 25-A of Arms Act, registered as Case Crime No.622 of 1984 under Section 147, 148, 149, 307 IPC and Case Crime No.623 of 1984 under Section 25-A of Arms Act, Police Station-Kasganj, District-Etah. Both the aforesaid case crime numbers were endorsed on Chik No.465 (Exhibit Ka 3). Said incident was also endorsed in General Diary at Rapat No.25 on the same day i.e. at about 10.10 A.M. marked as Exhibit Ka 4.

5. Investigating Officer (hereinafter referred to as "I.O.") has prepared the Site Map (Exhibit Ka 5) and has submitted charge sheet dated 21.09.1984 arraigning only three persons as accused under Section 147, 148, 149, 307 IPC (Exhibit Ka 6). On the same day, I.O. has submitted another charge sheet (Exhibit Ka 7) against same three persons under Section 25-A of the Arms Act. As per endorsement made in the charge sheet, out of three persons, two had already died namely Daulata and Parmeshwari, therefore, charge sheet was submitted only against Ram Dayal (accused-appellant herein).

6. Vide order dated 18.08.1986, the case was committed to the Court of Sessions for trial and vide order dated 25.09.1986, Court has framed charges under Section 148/379/149IPC. By separate order dated 25.09.1986, charge was also framed under Section 25 of Arms Act on the basis of sanction (Exhibit Ka 8) granted by the District Magistrate.

7. To prove the charges levelled against accused/appellant, prosecution has produced as many as three witnesses.

8. PW-1 Shiv Shankar (S.I.), who was a member of police party, along with Jawaharlal (S.I.), has supported the FIR version and deposed that on 15.08.1984 at about 7.30 P.M., police party consists of him, Jawaharlal (S.I.) and four constables namely Rajesh Kumar, Umesh Chandra, Purushottam and Rajendra Prasad, after making G.D. entry at Rapat No.33 (Exhibit Ka 1), left the police station for patrolling duty. In the intervening night of 15/16.08.1984, police party reached village-Nagla Waley Doraee and, therefrom while they proceeded for further destination, at about 5.30 A.M. reached near the corn crop field of Brijpal, they saw 5-6 miscreants armed with lethal weapons sitting on the hedge (med). Suspecting the persons as miscreants, police party had challenged them for counteracting and asked them to disclose their identity. Miscreants, in turn, had fired 4-5 shots at the police party. S.I., Jawaharlal had challenged them to surrender, otherwise they would be neutralized. Second time again the miscreants had fired 3-4 shots at the police party and rounded on them by filthy language. In retaliation Jawaharlal (S.I.) had fired one shot from his private revolver, deponent-Shiv Shankar (PW-1) had fired two shots from his service revolver, Rajesh Kumar (Constable) had fired 3 shots from his rifle, Umesh Chandra (Constable) had fired 3 shots from his rifle. Constables, Rajendra and Purushottam both had fired 2-2 shots from their rifles respectively, in their self defence. Miscreants had succeeded in escaping from north west corner towards Daruapur village. Constables Umesh and Purushottam chased them and arrest the present accused namely, Ram Dayal, who inflicted bullet injury. Absconded miscreants were identified as Daulata, Parmeshwari, Girish and Rishipal, who were known to the deponent. After arrest of present accused/appellant, he had been found in possession of one SBBL Gun of 12 bore, one empty cartridge, 8 live cartridges and belt. From the spot 12 empty cartridges were recovered and sealed which were used by the police party and six empty cartridges were recovered from the spot, which were used by the miscreants/accused. All the recovered materials are marked as Material Exhibit nos.2 to 28 and the recovery memo had been prepared by S.I. Jawaharlal and signed by police personnel who were members of the police party. PW-1 has proved the aforesaid recovery memo as Exhibit Ka 2. PW-1 has stated that the bullet injury inflicted to accused-appellant Ram Dayal was from the firearms of police. He has further deposed that Head Constable Kalyan Singh had written the Chik FIR which has been proved as Exhibit Ka 3 and G.D. Entry was also made of the aforesaid incident at Rapat No.25 which has been proved as Exhibit Ka-4. He has further stated that S.I. Jawaharlal had made his signature over the FIR.

9. PW-2 Rajendra Prasad (Constable), who was the member of police party, has supported the version of FIR and deposed that on 15.08.1984 after endorsing the G.D. Entry, they left the police station at about 7.30 A.M. for patrolling duty in village-Kishorpur, Nagla Waley Doraee, Daruapur. On 16.08.1984 at about 5.30 A.M., they saw 5-6 miscreants sitting on the eastern hedge (med) of the field, while they reached near the corn crop field of Brijpal. When the miscreants had been challenged for counteracting, they, in retaliation, fired at the police party and after exchange of fire between the police and the miscreants, they succeeded in absconding from the crime scene. While they have been chased, present accused-appellant Ram Dayal, inflicted bullet injuries, was arrested on the spot lying in the corn crop field. Remaining miscreants, who fled away, had been recognized. From the possession of accused-appellant Ram Dayal, one SBBL Gun and 8 live cartridges were recovered.

10. PW-3, S.I. Raghubir Singh, who is the I.O., has proved the Site Plan as Exhibit Ka-5 and Sanction Order from the District Magistrate for proceeding under Section 25 of Arms Act as Exhibit Ka 8. He has submitted charge sheet under Section 147, 148, 307/149 IPC and proved the same as Exhibit Ka-6 and another charge sheet under Section 25 of Arms Act and proved it as Exhibit Ka-7.

11. After considering the evidences available on record, learned trial court has found that appellant was one of the member of an unlawful assembly, the common object of which was to commit rioting and in prosecution of common object of such unlawful assembly, he along with other miscreants fired shots towards police party with intention to kill them, consequently vide impugned judgment and order 27.03.1987 accused-appellant herein has been convicted and sentenced as mentioned above.

12. Assailing the impugned judgment and order, learned Amicus Curiae appearing on behalf of the appellant has submitted that :-

(a) The Court below has illegally convicted the present appellant without weighing the evidence available on record in right perspective and decided the case only on the basis of conjectures and surmise.

(b) No case is made out under Section 149 IPC, inasmuch as, prosecution has failed to make out the case of unlawful assembly as enunciated under Section 141 IPC, wherein for unlawful assembly five or more persons are required, but in the present matter, as per charge sheet submitted by the Investigating Officer, only three persons were arraigned as accused namely Daulata, Parmeshwari and Ram Dayal (accused-appellant). Out of aforesaid three accused, Daulata and Parmeshwari had been shown dead.

(c) The Court below has framed a vague charge under Section 25 of Arms Act. No specific charge has been framed against the present accused, as to under which sub section he is guilty of committing crime.

(d) As per prosecution case, accused-appellant was inflicted firearm injury, which was caused from firearms used by police party. There is no medical report to prove the firearm injury inflicted to the present appellant. No bullet or pellet had been retrieved from the alleged wound seat on present appellant. Empty cartridges which were shown to be recovered from the spot, the gun which was shown to be recovered from the possession of present appellant and firearms said to be used by police, had not been examined by any Ballistic Expert to the prove the prosecution case.

(e) No fair investigation has been conducted in the present matter. A false and fictitious story has been concocted to frame the present appellant in criminal case, showing his complicity in commission of crime, for some ulterior motive.

(f) No independent witness or public witness has been adduced to corroborated the prosecution story.

(g) There is contradiction in the statement of PW-1 Shiv Shakerlal and PW-2 Rajendra Prasad with respect to presence of villagers at the place of incident at the relevant time of occurrence. PW-1 states that at the time of incident while fire was exchanged between the police party and the miscreants, no villager came on the spot. Even no one had been seen to come there for nature's call whereas the incident has taken place for about half an hour and after completing the recovery memo and other formalities, it took about one and half hour, whereas PW-2 Rajendra Prasad in his cross-examination has stated that after firing, villagers gathered on the spot.

(h) Accused-appellant is entitled for the benefit of doubt, inasmuch as, prosecution has failed to prove its case beyond reasonable doubt. No unimpeachable evidence has been adduced to corroborate the prosecution story.

13. Per contra, learned A.G.A. has supported the impugned judgment and order passed by the Court below and submitted that :-

(a) Prosecution has successfully proved its story as well as the accusation made against the present appellant qua his complicity in commission of the crime.

(b) Even assuming that the I.O. has not properly investigated the matter, minor procedural defects could be ignored by the Court below.

(c) All the prosecution witnesses have successfully corroborated the version of FIR and there is no glaring contradiction or discrepancy in their statements to disbelieve their testimonies.

(d) The facts and circumstances of the case and the evidence available on record, are damning present accused-appellant beyond reasonable doubt and he cannot be acquitted on the submissions made by learned Amicus Curiae.

(e) There is no illegality, perversity or infirmity in the impugned judgment and order requiring indulgence of this Court in exercise of its appellate jurisdiction to reverse or modify the impugned judgment and order, which is liable to be affirmed by this Court.

14. I have carefully considered the chronological events of the case, rival submissions made on behalf of the learned counsel for the parties as well as the evidences available on record.

15. Accusing Ram Dayal (appellant herein), prosecution came with the case that on 16.08.1984 at about 5:30 A.M. nearby the field of Brijpal Jatav in village-Daruapur, within the circle of Police Station-Kasganj, District-Etah, he along with 4-5 persons being a member of unlawful assembly, having common object to commit rioting, armed with lethal weapon (country made SBBL gun has been shown to be recovered from possession of the appellant) and in prosecution of common object, he fired shots upon the police party with such intention and knowledge that by that act death of any of the police personnel would have been caused. As per prosecution story, police party was, headed by Jawahar Lal (Sub Inspector), consists of (Sub Inspector) Shiv Shankar Sonkar and four Constables had started patrolling duty on 15.08.1984 at about 7:30 P.M. after endorsement in General Diary at Rapat No. 33. In the course of their patrolling, while they reached near the corn crop field of Brijpal, they saw 5-6 persons sitting on the eastern hedge of the field armed with lethal weapons. When they have been challenged to disclose their identity and counteracting, all 5-6 persons, who were suspected to be miscreants, had suddenly entered into the corn crop field and fired 3-4 shots therefrom towards the police personnel. Thereafter, police personnel had taken defensive position at the surrounding of the corn crop field and challenged the miscreants to surrender, who in turn, again fired 3-4 shots at the police party. In defence, police personnel had also fired shots. Due to cross firing, stampeded took place amongst the miscreants, who absconded from the crime scene except the present appellant, who was arrested from the spot in injured condition. After police operation, the present appellant had been shown to be in possession of one country made SBBL gun and eight live cartridges, one exhausted cartridge from the barrel of the gun and one belt. Jawahar Lal (Sub Inspector) has prepared the recovery memo (Exhibit Ka-2) on the spot showing all the recovered articles from Material Exhibit 1 to 28.

16. Unlawful assembly is one of the important ingredient to prove the culpability of an accused under Section 148 and 149 IPC. Section 148 IPC deals with "guilt of rioting" and Section 146 IPC defines "rioting" which connotes that whenever force or violence is used by an unlawful assembly, or any member thereof, in prosecution of common object of such assembly, every member of such assembly is guilty of offence of rioting. Likewise, Section 149 IPC denotes the vicarious liability of all members of unlawful assembly or acts done in common object.

17. In light of legal provisions as discussed above, it is clear that to show the complicity of the accused in commission of crime as mentioned under Section 148 and 149 IPC, it should be proved beyond reasonable doubt that he was a member of unlawful assembly and has acted in prosecution of the common object of such assembly. Section 148 and 149 IPC, comes under Chapter VIII of IPC relates to the crime against the public peace, captioned as "OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY". "Unlawful assembly" is defined under Section 141 IPC which is reproduced below:-

"141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is--

(FIRST) -- To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or

(SECOND) -- To resist the execution of any law, or of any legal process; or

(THIRD) -- To commit any mischief or criminal trespass, or other offence; or

(FOURTH) -- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

(FIFTH) -- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."

18. Meaning thereby, there should be an assembly consists of minimum five, more than four, or more persons and to consider/declare said assembly to be an unlawful assembly, all the members of the said assembly must be having one of the five specified objects as their "common object" as enunciated under Section 141 IPC. Even if the fifth person was present, who did nothing to show that he shared the common object of the others, he would not become guilty by merely remaining in an unlawful assembly. The combined reading of Section 141 and 149 IPC shows that assembly of less than five members is not an unlawful assembly and cannot, therefore, form the basis of conviction of an offence with the aid of Section 149 IPC.

19. In the matter at hand, charge sheet has been submitted arraigning only three persons as accused and out of them two accused were shown to have died, accordingly, trial commenced only against the present appellant, who was alive.

20. Learned counsel for the appellant has laid much emphasis on the number of persons, who have been charge sheeted for commission of offences under Section 148 and 149 IPC and submitted that no offence has been made out under the aforesaid sections, inasmuch as, there was no unlawful assembly as defined under Section 141 IPC.

21. As per FIR version, police party had seen 5-6 persons, who were armed with lethal weapons, sitting on the eastern hedge of the corn crop field. All the accused persons have been recognized by the police, while they were absconding after exchange of fire. Out of them, only accused-appellant herein was arrested in injured condition lying in the corn crop field. In the FIR, name of other five accused persons, except the present appellant, has been shown as Daulata, Parmeshwari, Girish, Ram Pal and Rishi Pal respectively. After due investigation, I. O., despite having full knowledge of all the accused persons, did not find it proper to arraign all the named persons as accused in the charge sheet. I. O. had named only Daulata, Parmeshwari and Ram Dayal as accused and out of the aforesaid two accused namely, Daulata and Parmeshwari were shown to be dead. No explanation has been offered in the charge sheet as to why remaining three persons have been exempted from the charges. Perusal of the chargesheet reveals that in the second column of the charge sheet, which is captioned as "name and address of the accused who have not been challaned, either arrested or not", name of three accused have been mentioned namely Girish, Ram Pal and Rishi Pal, who have not been arraigned as an accused. Name of the present appellant-Ram Dayal has been shown solitary in the third column of the charge-sheet, which is captioned as "name and address of the accused who have been challaned". On the basis of the aforesaid charge sheet, trial commenced only against the present appellant and he has been charged under Section 148, 307 & 149 IPC and under Section 25 of the Arms Act.

22. Seeing the number of participants in the commission of alleged crime, who are less than five, it is abundantly clear that assemblage of charge sheeted men are not constituting any unlawful assembly as defined under Section 141 IPC, as such, the phrase 'common object' as implied under Section 141/149 IPC is also not attracted in the present matter. In the absence of fair trial, which is right of an accused, the complicity of the accused persons, who were shown dead in the charge sheet, in the commission of crime, cannot be inferred. Mere naming of any person in the charge sheet is not proof of his culpability.

23. In the light of the discussions as made above, it is clear that neither the presence of five or more persons has been proved by prosecution in the present matter to make out a case of unlawful assembly, nor any common object could be attributed to them. No explanation has been offered either in the statement made by the I.O. nor any material has been brought on record to show as to why all the named accused, as mentioned in the FIR, had not been charge sheeted.

24. Learned A.G.A. has submitted that it was a minor deficiency in the investigation and same can be ignored in deciding culpability of the present appellant. He has placed reliance on the verdict given by the Hon'ble Supreme Court in the case of Maqbool alias Zubir Alias Shahnawaz and Another vs. State Andhra Pradesh, (2010) 8 SCC 359, wherein it has been expounded that lapse in the investigation cannot vitiate the proceedings where guilt is proved otherwise. In the aforesaid cited case, nine persons were made accused of committing murder and theft. It has been argued before Hon'ble Supreme Court that investigation of the case was so faulty that even important piece of evidence were not collected from the place of occurrence and identification parade was conducted contrary to the settled law. After considering the facts and circumstances of the case, Hon'ble Supreme Court has negated the submission advanced by learned counsel for appellant and observed that accused himself was arrested after one year and it was only thereafter, the I.O. had been able to collect the substantial evidence and even after arresting all the concerned accused, identification parade was conducted. Finally, Hon'ble Supreme Court concluded that prosecution has been able to prove its case beyond reasonable doubt. Pointing out some deficiency in the investigation, Hon'ble Supreme Court has directed the Director General of Police to examine the matter and take appropriate action. Thus, the case of Maqbool (supra) cited by learned A.G.A. is not fully applicable in the facts and circumstances of present case, wherein police party itself confronted with the alleged accused persons as named in the FIR and shown their involvement in commission of crime under Section 148, 149 and 307 IPC and under Section 25-A of the Arms Act, but utterly failed to file the charge sheet arraigning five or more persons to be accused to prove their case beyond reasonable doubt.

25. Learned counsel for the appellant has emphatically denied the occurrence as portrayed in the FIR and submits that neither the appellant herein was present at the place of occurrence nor any unlawful assembly was constituted on the place of occurrence. In fact, present appellant was arrested from his house, as he himself stated in his statement under Section 313 Cr.P.C. and falsely made him a member of an imaginary unlawful assembly which was not constituted. Even presence of other accused as mentioned in the FIR is also doubtful in the light of the fact that out of five persons, excluding the present appellant, two were shown to have died in the charge sheet dated 21.09.1984 which was filed within 35 days of the occurrence and remaining three were not arraigned as accused. In support of his contention, learned counsel has placed reliance on Paragraphs 9, 10, 11 & 12 in the case of Roy Fernandes vs. State of Goa & Others, (2012) 3 SCC 221, decided by the Hon'ble Supreme Court in. Paragraphs 9, 10, 11 & 12 are reproduced below :

"9. To the same effect is the decision of this Court in Dharam Pal and Ors. Vs. State of U.P. [1975 (2) SCC 596] where this Court observed:

"10. xxx If, for example, only five known persons are alleged to have participated in an attack but the Courts find that two of them were falsely implicated, it would be quite natural and logical to infer or presume that the participants were less than five in number. On the other hand, if the Court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of the alleged assailants, and, therefore, acquits two of them, the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding based on good evidence and sound reasoning that the participants were five or more in number.

10. Acquittal of three of the five accused persons comprising the unlawful assembly does not in the light of the settled legal position make any material difference. So long as there were four other persons with the appellant who had the common object of committing an offence the assembly would be unlawful in nature acquittal of some of those who were members of the unlawful assembly by reason of the benefit of doubt given to them notwithstanding.

11. That leaves us with the question whether the commission of murder by a member of an unlawful assembly that does not have murder as its common object would attract the provisions of Section 149 IPC. Section 149 IPC reads:

"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. - 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.

12. A plain reading of the above would show that the provision is in two parts. The first part deals with cases in which an offence is committed by any member of the assembly "in prosecution of the common object" of that assembly. The second part deals with cases where the commission of a given offence is not by itself the common object of the unlawful assembly but members of such assembly `knew that the same is likely to be committed in prosecution of the common object of the assembly'. As noticed above, the commission of the offence of murder of Felix Felicio Monteiro was itself not the common object of the unlawful assembly in the case at hand. And yet the assembly was unlawful because from the evidence adduced at the trial it is proved that the common object of the persons comprising the assembly certainly was to either commit a mischief or criminal trespass or any other offence within the contemplation of clause (3) of Section 141 of the IPC, which may to the extent the same is relevant for the present be extracted at this stage:

"Section 141 : Unlawful Assembly:

An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is--

First.-- xxx

Second.- xxx

Third-To commit any mischief or criminal trespass, or other offence"

26. Learned counsel for the appellant has also relied upon the verdict given by a three Judges Bench of Hon'ble Supreme Court in the case of Dharam Pal and others vs. The State of U.P., AIR 1975 SC 1917. The relevant paragraph 14 of the aforesaid judgement is quoted below :

"14.The following cases were also cited before us: Dalip Singh & v. State of Punjab AIR 1954 1953; Bharwad Mepa Dana & Anr. v. State of Bombay 1960 CriLJ 424; Kartar Singh v. State of Punjab AIR 1961; Mohan Singh v. State of Punjab, AIR 1963 SC 174; Ram Bilas Singh v. State of Punjab 1964 CriLJ 573.

In the case of Ram Bilas Singh (supra) previous decisions of this Court on the question argued before us have been considered at some length and a passage from the case of Krishna Govind Patil v. State of Maharashtra, (1964) 1 SCR 678 was also quoted. In none of these cases was it decided that where, out of abundance of caution, a large number of accused persons obtained an acquittal with the result that the number of those whose participation is established beyond reasonable doubt is reduced to less than five, but, at the same time, it is clear that the total number of assailants could not be less than five, the convicted accused persons must necessarily get the benefit of doubt arising in the case of the acquitted accused persons. A case like the one before us stands on the same footing as any other case where there is certainty that the number of participants was not less than five but there is doubt only as to the identity of some of the participants. It has to be remembered that doubts may arise with regard to the participation of a particular accused person in circumstances whose benefit can only be reaped by the accused who raises such doubt. Doubts may also arise about the veracity of the whole prosecution version and doubts about the participation of individual accused persons may contribute to the emergence of such doubts which may cover and engulf the whole case. Never the less, if, as in the instant case, the Courts, whose duty is to separate the chaff from the grain, does hold that the convicted persons were certainly members of an unlawful assembly which must have consisted of more than five persons, we do not see any principle of law or justice which could stand in the way of the application of Section 149 I.P.C. for convicting those found indubitably guilty of participation in carrying out of the common object of an unlawful assembly."

27. The record evinced that number of participants in the commission of alleged crime, for which the accused had been charge sheeted, were less than five. Although name of six persons were mentioned in the FIR but the same cannot be considered in determining the commission of crime for which the accused had been charge sheeted, unless all the persons, named as accused in the FIR, are charge sheeted and tried by the trial court and were held guilty for being a member of unlawful assembly. In the matter at hand, any sort of effort has not been made on behalf of the prosecution and the investigating officer to prove participation of five or more persons in the alleged incident. In the absence of number of participants as required under the law for the constitution of unlawful assembly, in my opinion, prosecution has failed to make out a case showing culpability of the accused in commission of crime as defined under Section 141 and 149 IPC.

28. So far as the charge sheet under Section 25 of the Arms Act is concerned, it is submitted that the trial court, vide order dated 25.09.1986, had framed separate charge under Section 25 of the Arms Act without specifying nature of crime as to under which sub section or clause of Section 25 of the Arms Act, the accused had committed offence. A perusal of the charge evinced its vagueness in nature and it would be difficult to ascertain the complicity of the accused in the commission of a particular crime as defined under several sub-sections of Section 25 of the Arms Act. As per the FIR version, the appellant had been shown to be in possession of one country made SBBL gun, eight live cartridges and one exhausted cartridges recovered from the barrel of the gun. All the materials were sealed and marked as Exhibit Nos.1 to 11.

29. No independent public or eye witness has been adduced to authenticate the veracity of occurrence as portrayed by the prosecution. The trial court, dealing with this point, has observed that police personnel are the best witnesses who were present at the time of alleged occurrence and arrested the accused. In my opinion, the trial court has utterly failed to appreciate the deposition of the prosecution witnesses which are contradictory qua presence of public at place of occurrence. P.W. 1, in his cross-examination, deposed that it took half an hour in conducting the entire operation. He further deposed that it took about one and half hours in completing the entire formalities which includes preparation of recovery memo (Exhibit Ka 2). At page 7 he deposed that during operation no villagers were gathered at the place of occurrence. Even no person had been seen to attend the call of nature. On the contrary, P.W. 2, in his cross-examination, at page (4) deposed that natives of the village were gathered at the place of occurrence, about 10-5 people came over there and after sometime, some more co-villagers also gathered there. Deposition of P.W. 1 and P.W. 2 qua presence of the villagers at the place of occurrence shows glaring contradictions and creates doubts about their testimony and occurrence of crime. Even assuming, for the sake of arguments, that PW-1 Shiv Shankar Lal Sonkar had duly set forth the incident, it would be hard to believe that no villager came at the place of occurrence, while the police party was present over there for more than one and half hour i.e. from 5.30 A.M. to 7:00 A.M., which is a vital time in which most of the natives of the rural area get up in the early morning and used to go for call of nature. Seeing relevance of the time and duration which took place in completing the operation and other formalities, no prudent person could believe that incident in question could not come to the knowledge of the local residents. As per the FIR version, 6 to 8 shots were fired by the accused persons and about twelve shots were fired by the police personnel, total 20 shots were fired at the place of occurrence. Therefore, the theory given by the police that no one came on the spot, even after hearing the shots fired by both the parties, is hard to believe. Deposition made by P.W. 2 qua presence of the villagers on the spot has entirely been washed out and ignored by the trial court without assigning any cogent reason.

30. There is no unimpeachable evidence on the record to prove the accusation made by prosecution, which creates doubt with respect to the commission of crime said to have been occurred as mentioned in the FIR. In fact, the prosecution has failed to make out the genesis of crime wherein neither the adequate number of participants have been shown nor their common object has been proved beyond reasonable doubt so as to make out a case under Section 141/149 IPC.

31. In view of conspectus as discussed in the preceding paragraphs, case under Section 307 IPC also comes under cloud. It is unfortunate that no report was called for from the ballistic expert to prove the use of fire arms at the place of occurrence. Mere showing recovery of gun and cartridges, which may be a fake recovery showing its use in the commission of crime of attempt to murder, to make out a false case, does not automatically comes within the ambit of Section 307 IPC. None of the ingredients as mentioned in Section 307 IPC, to prove the complicity of the accused in the commission of crime, have been satisfied by the prosecution beyond reasonable doubt. In the light of the fact that neither the unlawful assembly nor the common object could be proved nor even the case under the Arms Act could properly be made out by the prosecution, it cannot be said that any offence is made out against the present appellant under Section 307 IPC.

32. It is the case of the prosecution that present appellant was arrested in injured condition. Unfortunately, there is no evidence on record to prove that injured accused was ever sent to any hospital or Medical Practitioner with the purpose of medical examination. No injury report has been filed on record to prove the injury of the accused as deposed by prosecution witnesses and set forth in the FIR. Neither any sort of wound has been explained by the prosecution witnesses nor any bullet or pellet had been shown to be retrieved from the said wound, which could prove the injury of the appellant sustained by the police firing. The report of the ballistic expert could establish the use of firearms inflicting injury to the accused, but prosecution has not made any endeavour to get the report of ballistic expert qua use of fire arms, said to have been recovered from the possession of appellant and, by which accused/appellant sustained injuries.

33. Considering the evidences available on record in totality of facts and circumstances of the case as portrayed by the prosecution, reasonable doubt occurred qua the correctness of the genesis of crime, therefore, as per submission made by learned Amicus Curiae on behalf of appellant, entitlement of accused-appellant for benefit of doubt, cannot be denied. To explain the "benefit of doubt" and "reasonable doubt", learned Amicus Curiae has cited the case of State of Haryana vs. Bhagirath, 1999 (5) SCC 96. In the aforesaid cited case, a blind son was butchered by his father with two accomplice. On the testimonies of two eye witnesses, PW-4 and 6, Trial Court had convicted Bhagirath (father) along with his two accomplice under Section 304 IPC. A Division Bench of High Court, Punjab and Haryana has affirmed the conviction of two accomplice but reversed the judgment with respect to conviction of Bhagirath giving him benefit of doubt. Hon'ble Supreme Court has reversed the judgment of High Court and expounded the relevancy of definition of phrase "benefit of doubt" and "reasonable doubt". Relevant paragraphs 9, 10, 11, 12 and 13 of the aforesaid judgment is reproduced below :-

"9. The High Court has failed to consider the implication of the evidence of the two eye witnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. Benefit of doubt was given to Bhagirath as a matter of abundant caution. Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of benefit of doubt. Abundant caution is always desirable in all spheres of human activities. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the judge conscientiously and reasonably entertains doubt regarding the guilt of the accused.

10. It is nearly impossible in any criminal trial to prove all elements with scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression reasonable doubt is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the judge.

11. Francis Wharton, a celebrated writer on Criminal Law in United States has quoted from judicial pronouncements in his book on Whartons Criminal Evidence as follows (at page 31, volume 1 of the 12th Edition):

"It is difficult to define the phrase reasonable doubt. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster Case. He says: It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."

12. In the treatise on The Law of Criminal Evidence authored by HC Underhill it is stated (at page 34, Volume 1 of the Fifth Edition )thus:

"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."

In Shivaji Saheb Rao Bobade vs. State of Maharashtra [1974 (1) SCR 489] this Court adopted the same approach to the principle of benefit of doubt and struck a note of caution that the dangers of exaggerated devotion to rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. This Court further said:

"The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt."

13. These are reiterated by this Court in Municipal Corporation of Delhi vs. Ram Kishan Rohatgi [AIR 1983 SC 67]."

34. If the evidence of prosecution is read and considered in totality of facts and circumstances coupled with other evidences available on record, in which crime is alleged to have been commissioned, I am of the view that deposition of prosecution witnesses does not inspire confidence of the Court. Evidence of prosecution, in the light of chronological events as shown to be portrayed qua culpability of appellant, is not worthy of credibility and implicitly unreliable. Prosecution has not disclosed true genesis of crime and in such a situation of fact, as discussed above, accused-appellant is entitled to get benefit of doubt and his innocence can easily be inferred. There is no proper evidence available on record and the surrounding circumstances to hold the appellant guilty. No unimpeachable evidence had been adduced by the prosecution to prove its accusation against the accused/appellant beyond all reasonable doubts.

35. Accused/appellant succeeded in making out substantial grounds/reasons, warranting indulgence of this Court in exercise of its appellate jurisdiction to reverse the order of conviction passed by the Court below. Findings given by the Court below are wholly unreasonable and sans clinching evidence. It suffers from serious illegality including ignorance and misreading of evidence on record.

36. In the result, the present appeal is allowed. The conviction and sentence of appellant under Section 148 and 304/149 IPC and under Section 25 of Arms Act is hereby withheld and judgment and order dated 27.03.1987 passed by IInd Additional Sessions Judge, Etah in Sessions Trial No.342 of 1986, is hereby set aside. Appellant is on bail, his bail bond stands cancelled and the sureties are discharged.

37. Let a copy of this judgment along with lower Court's record be sent to concerned Court below, for compliance.

38. Before parting, I find it appropriate to place on record my commendation to Sri Shivam Agarwal, learned counsel who has argued this appeal as Amicus Curiae with ability and this Court appreciates the labour and assistance extended by him. This Court provides that he shall be paid counsel's fee as Rs.5,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Sri Shivam Agarwal, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.

Order date :10.03.2021

nd/VR/Manish Himwan