Ram Saran And Others vs State
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Allahabad High Court

Ram Saran And Others vs State on 3 April, 2026

Author: Siddharth

Bench: Siddharth

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2026:AHC:71568-DB
 
 Reserved On :- 23.02.2026  Delivered On :- 03.04.2026  
 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
CRIMINAL APPEAL No. - 560 of 1991   
 
   Ram Saran And Others    
 
  .....Appellant(s)   
 
 Versus  
 
   State    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Appellant(s)   
 
:   
 
Udit Chandra   
 
  
 
Counsel for Respondent(s)   
 
:   
 
A.G.A.   
 
     
 
    
 
 HON'BLE SIDDHARTH, J.  

HON'BLE HARVIR SINGH, J.

(Delivered By Hon'ble Siddharth, J.)

1. Heard Sri Udit Chandra, learned counsel for appellant no. 2, Dina @ Din Dayal; Sri Gagan Mehta, learned A.G.A for State-respondent; perused the trial court record and judgment and order passed by the trial court.

2. This criminal appeal has been preferred against the judgment and order dated 27.03.1991 passed by Additional Sessions Judge, Bareilly in Sessions Trial No. 168 of 1987, whereby the appellant no. 1 has been convicted under Section 302 IPC and appellant no. 2 under Section 302/34 IPC sentencing them for life imprisonment.

3. During the pendency of this appeal, the appellant no. 1, Ram Saran, has died and the appeal has already been dismissed, as abated against appellant no. 1, Ram Saran on 01.02.2024. The appeal is being heard on behalf of appellant no. 2, Dina @ Din Dayal, only.

4. According to the prosecution case, Gulzar Singh along with his wife, children and brother-in-law used to reside in the Jhala in his field situate at the outskirts of village Jhada. Gulzar Singh had purchased this field from Parshadi. Ram Saran had evil eyes on the young daughter of Gulzar Singh and used to visit his Jhala now and then. It was not relished by Gulzar Singh and his son, Devendra Singh and he had asked Ram Saran not to come to his Jhala at odd hours. At about 06:00 a.m on 4th day of July, 1986 Ram Saran along with his brother, Sarnam and uncle Jwala went to the Jhala of Gulzar Singh and an altercation ensued between Devendra Singh, on one hand and Ram Saran on the other.

5. In the evening of 4th day of July, 1986 Devendra Singh was returning from Bareilly talking bearing for the tube-well motor and at about 4:30 p.m as he reached near the field of Zileydar Ram Saran taking his gun along with his cousin, Dina on a bicycle reached there from behind and stopped the bicycle and Dina exhorted Ram Saran to kill, Devendra Singh and immediately Ram Saran fired two shots at Devendra Singh with his gun which hit him and he fell down on the way. Hearing the sound of shot fired and shrieks of Devendra Singh, Gulzar Singh, his wife, daughters and son, Tarsem Singh, who were doing weeding in their capsicum field rushed to the spot. Suraj Pal, brother-in-law of Gulzar Singh also reached there. Thereupon both the assailants ran away on their bicycle.

6. Immediately Gulzar Singh taking his injured son, Devendra Singh, went to the police station- Fatehganj (East) situate at a distance of three miles from the spot and orally lodged a report of the occurrence there at about 05:00 p.m the same day (Ext. Ka 17). The police registered a case under Section 307 IPC and started the investigation (Ext. Ka-18).

7. S.I. R.K. Trivedi to whom the investigation of the case was entrusted recorded the statements of Gulzar Singh and Devendra Singh at the police station itself. Then he went to village Jhada, visited the spot and prepared its site-plan map (Ext. Ka 12). He also collected blood stained and simple earth from the spot and sealed in two separate packets and prepared their memo (Ext. Ka 13) and did other necessary things.

8. Devendra Singh was sent to Primary Health Centre, Faridpur for his medical examination, but it appears that medical officer in-charge, P.H.C referred him to District Hospital, Bareilly for admission and treatment. He was medically examined by Dr. Kirpal Singh, EMO, District Hospital, Bareilly on 04.07.1986 at about 06:45 p.m the same evening. His medical examination revealed below noted injuries on his persons :-

(i) 15-16 gunshot wounds of entry 0.5cm x 0.5 cm x muscle deep on both hips lower part of back. Fresh bleeding present. No blackening or tattooing present.

(ii) One gunshot wound of entry 1cm x 1cm x muscle deep in the middle and lower part of back.

(iii) Gunshot wound of entry 10cm x 10cm x bone deep on right hand palmar side. No blackening or tattooing present.

(iv) 3 gunshot wounds of entry 0.5 cm x 0.5 cm x muscle deep on chin.

(v) One gun shot wound of entry 0.5 cm x 0.5 cm x muscle deep on left side neck.

All the injuries above noted were kept under observation and advised x-ray. The doctor opined that all the injuries were caused by firearm and fresh in duration. Devendra Singh admitted in the District Hospital for treatment in Emergency Ward.

9. The Additional City Magistrate, R.S. Gupta, recorded the dying declaration of injured, Devendra Singh, in the District Hospital, Bareilly on 04.07.1986 at about 08:18 p.m (Ext. Ka10).

10. Devendra Singh succumbed to the injuries sustained by him in the District Hospital, Bareilly at about 09:25 p.m the same evening.

11. Next day the police of police station Kotwali, Bareilly, prepared an inquest report of the dead body of Devendra Singh and other necessary papers for its post-mortem examination (Exts Ka2 to Ka 6).

12. On receiving the information regarding the death of Devendra Singh, the police altered the case under Section 302 IPC vide G.D. entry No. 17 on 05.07.1986 (Ext. ka 19).

13. The autopsy on the dead body of Devendra Singh was conducted by Dr. A.B. Lal, Senior Child Specialist, District Hospital, Bareilly on 05.07.1986 at about 04:15 p.m. He found the below noted ante-mortem injuries on the dead body :-

(i) Lacerated wound gunshot 12cm x 4cm x bone deep on the right hand with fracture of metacarpal bone and the muscle and soft tissues badly lacerated and fingers hanging with only small skin flaps. Blackening present.

(ii) Gunshot wound 0.4 cm x 0.4 cm x muscle deep on left cheek 2 cm infront of the tragus lower part.

(iii) Gunshot wound 0.4 cm x 0.4 cm x muscle deep on the left side chin 3 cm below the angle of mouth.

(iv) Gunshot wound 0.4 cm x 0.4 cm x muscle deep on left side neck 4 cm below the mandible.

(v) Multiple gunshot wounds in an area of 25cm x 20cm on the back of both buttocks and lumbar region, size 0.4 cm x 0.4 cm x cavity and muscle deep 31 in number.

(vi) Gunshot wound 1.5 cm 1.5 cm on the 5th lumbar region cavity deep. A track was found towards inside cavity.

14. The doctor found gunshot wounds margins black at some places only and due to surgical tattooing, blackening was not seen. And hence the doctor opined that, no definite opinion could be given about distance.

15. On an internal examination the doctor found peritoneum lacerated under injuries nos. 5 and 6 at some places and abdominal walls as noted in injuries nos. 5 and 6. Left kidney and bladder were found lacerated at two and four places respectively. Abdominal cavity contained clotted blood about 150 ml. stomach was found empty. Small intestine was found lacerated at many places and empty and large intestine loaded with faecal matter. The doctor removed 58 pellets from chin, abdominal cavity and neck. The doctor opined that death was caused due to shock and hemorrhage as a result of ante-mortem injuries. The investigating officer took blood stained earth, clothes, etc., sent to the Chemical Examiner, Agra for expert opinion, if they contain human blood. After completing the investigation, the police submitted charge-sheet against the accused.

16. The accused have pleaded not guilty denied the alleged occurrence together and stating that they have been got implicated in the case falsely on account of party facts in the village.

17. The prosecution examined, Gulzar Singh P.W.1 as the eyewitness of the occurrence. P.W.3- Dr Kirpal Singh, who medically examined injured, Devendra Singh, has approved his injury report and bedhead ticket, Ext. Ka 8 and 9). P.W.-2, Dr. A.B. Lal, conducted autopsy on the dead body of Devendra Singh has proved his postmortem report (Ext Ka 1). P.W.-4, R.S. Gupta, the then Additional City Magistrate, Bareilly, who recorded the dying declaration of Devendra Singh has proved the same (Ext. Ka 10). P.W.-5, S.I. R.K. Trivedi, who investigated the case has proved the police papers and the statement of Devendra Singh recorded by him under Section 161 Cr.P.C as dying declaration (Ext. Ka 11). P.W.-6, H.M. Virpal Singh, who recorded the F.I.R of the case at the dictation of Gulzar Singh and made the G.D. Entry regarding thereto has proved these documents (Exts Ka 17 & Ka 18). He also proved G.D entry no. 17 regarding alteration of the case under Section 302 IPC (Ext. Ka 19).

18. Ext. Ka 20 is the report of the S.S. Tripathi, Assistant Director, Vidhi Vigyan Prayogshala, U.P. Agra. A perusal of this document goes to show that on chemical examination the Serologist found that blood stained earth collected from the spot and clothes of the deceased contained human blood.

19. The accused examined, D.W. 1, Surya Prakash, Lekhpal in support of their defence. The defence version as suggested to P.W-1, Gulzar Singh, in his cross-examination is that Jhala of Gulzar Singh is situate at a distance of some 500 yards from the place of occurrence. D.W.1, Surya Prakash, stated on the basis of village map prepared during consolidation proceedings in the year 1971 and revenue record that, there is Chak road in between the field of Jangi and Parshadi. The accused also filed copies of Khasra and Khatauni extracts in order to show that Prashadi is the owner and in possession of the Chak (Ext. Kha 1 and 2).

20. Learned counsel for the appellants has submitted that, as per the F.I.R the surviving appellant, Dina @ Din Dayal, exhorted deceased-appellant, Ram Saran, to kill Devendra Singh and immediately Ram Singh fired two shots at Devendra Singh with his gun and he fell down. He has further submitted that the version in the F.I.R is belied by the dying declaration of the deceased ,wherein he only stated that Ram Saran caused him gun shot injury when the second accused, Dina @ Din Dayal, was present there. He does not know why Ram Saran fired on him and Dina @ Din Dayal, was simply standing there. He has submitted that the dying declaration of deceased is more reliable than the version in the F.I.R lodged by P.W.-1. He has further submitted that by merely being passive on-looker the appellant, Dina @ Din Dayal, cannot be punished for committing the offence of murder of the deceased in furtherance of any common intention.

21. Learned A.G.A has vehemently opposed the submission made by learned counsel for the surviving-appellant, Dina @ Din Dayal and has submitted that the role of exhortation assigned to the appellant, Dina @ Din Dayal in the F.I.R makes him liable for conviction under Section 302/34 IPC. The judgment of the trial court is in accordance with law and may not be interfered by this Hon'ble Court.

22. After hearing the rival submissions, we find that the dying declaration of Devendra Singh was recorded by Additional City Magistrate, Bareilly on 04.07.1986 at 08:10 p.m. Dr. Kripal Singh, (P.W.-3) stated that, since the condition of Devendra Singh was serious, his dying declaration was recorded at 08:18 p.m when Additional City Magistrate, Bareilly was present. City Magistrate recorded his dying declaration and proved the same before the court by appearing before the court as P.W.-4. He stated that the deceased was in a fit mental condition to get his statement recorded. The dying declaration of deceased appears to be natural and truthful and does not appears to be tutored. Devendra Singh clearly stated that, at about 03:30 p.m when he was returning from Bareilly and reached near his house, Ram Saran, accompanied by Dina @ Din Dayal came. Ram Saran fired on him while Dina @ Din Dayal was standing.

23. We also find that the doctor has also certified the fit mental condition of deceased, Devendra Singh, before his statement was recorded and after his dying declaration was concluded.

24. Counsel for the appellants has referred to the judgment of the Apex Court in the case of Vasant @ Girish Akbarasab Sanavale and Another vs. State of Karnataka, reported 2025 INSC 221, wherein the Apex Court has held that mere presence of an accused at the scene of crime is insufficient for his conviction with the help of Section 34 IPC. The relevant paragraphs of the aforesaid judgment are being reproduced herein-below for ready reference :-

"81. In Bashir v. State, AIR 1953 Allahabad 668 (F) which is a Bench decision of the Allahabad High Court, it was observed by Desai J. that:-

"All the persons who are sought to be made liable by virtue of Section 34 must have done some act which is included in the 'criminal act', One who has not taken any part in doing the criminal act cannot be made liable under the section".

82. In Faiyaz Khan . Rex, AIR 1949 Allahabad 180 (G) it was held that:-

"Section 34 refers to cases in which several persons both intend to do and do an act. It does not refer to cases where several persons intend to do an act and some one or more of them do an entirely different act. In the latter class of cases Section 149 may be applicable, but Section 34 is not".

83. In AIR 1924 Calcutta 257 (D) which is a Full Bench case of the Calcutta High Court, Cuming J. observed that:

"The expression criminal act done by several persons includes the case of a number of persons acting together for a common object and each doing some act in furtherance of the final result which various acts make up the final act".

84. In Aydrooss v. Emperor, AIR 1923 Madras 187 (2) (H) it was held that in order to justify the application of Section 34, evidence of some distinct act by the accused, which can be regarded as part of the criminal act in question, must be required.

85. To the same effect are the following observations of Sharpe J. in Abdul Kader v. Emperor, AlR 1946 Calcutta 452 (I) which is a Bench decision of the Calcutta High Court:

"We think it desirable to draw attention to the decision in Fazoo Khan . Jatoo Khan AIR 1931 Calcutta 643 () in which it has been observed that 'all the accused persons can be found guilty of an offence constructively under Section 34 of the Penal Code only on a finding that each of them took some part or other in, or towards, the commission of the offence".

86. It is true that to convict any particular accused constructively under Section 34 of an offence, say of murder, it is not necessary to find that he actually struck the fatal blow, or any blow, but there must be clear evidence of some action or conduct on his part to show that he shared in the common intention of committing murder".

87. The net result of the above discussion is that although Section 34 deals with a criminal act which is joint and an intention which is common, it cannot be said that it completely ignores or eliminates the element of personal contribution of the individual offender in both these respects.

88. On the other hand, it is a condition precedent of Section 34, IPC, that the individual offender must have participated in the offence in both these respects. He must have done something, however slight, or conduct himself in some manner, however nebulous whether by doing an act or by omitting to do an act so as to indicate that he was a participant in the offence and a guilty associate in it. He must also be individually a party to an intention which he must share in common with others.

89. In other words, he must be a sharer both in the 'criminal act' as well as in the 'common intention' which are the twin aspects of Section 34, IPC. In view of the above position, it is difficult for the accused to legitimately urge before the Court that owing to the mention of Section 34, IPC, in the charge, he was misled or prejudiced in his defence by being persuaded to presume that all consideration of his individual liability was completely shut out as a result thereof. He would be presumed to know the law on the point and if, in spite of it, he deluded himself into any such belief, he would be doing so at his own peril."

25. The motive of crime is attributed to Ram Saran, who used to visit the house of informant with ill motive towards his daughter. P.W.-1 did not assigne any motive to appellant no. 2, Dina @ Din Dayal.

26. After hearing the above consideration, we find that the Apex Court in the case of Vasant @ Girish Akbarasab Sanavale (Supra) acquitted the husband of the deceased on the ground that, at the time of commission of offence of dowry death, it was the mother-in-law who poured kerosene oil on the deceased and set her on fire. While her husband was present, but he was not assigned any overt role in the incident and therefore the Apex Court upheld the conviction of the mother-in-law, but acquitted the husband for committing the offence of murder of his wife with the aid of Section 34 IPC.

27. It is settled law that the dying declaration stands on better footing vis-a-vis the F.I.R version, if the court finds as in this case, that it is free from suspicion and therefore reliable.

28. We are of the view that the surviving-appellant no. 2, Dina @ Din Dayal, was only implicated by the deceased in his dying declaration for standing at the place of incident. There is no allegation against him that he facilitated the deceased-appellant no. 1, Ram Saran, to commit the murder of the deceased, Devendra Singh.

29. In view of the above discussion, we find that the judgment of the trial court convicting and sentencing the appellant for committing the offence of murder with the help of Section 34 IPC is not based on evidence on record. The trial court has although considered the dying declaration, but has wrongly held that it establishes the charge against surviving appellant no. 2, Dina @ Din Dayal, also when from dying declaration the charge was clearly established against the deceased-appellant, Ram Singh, only.

30. Hence, the judgment and order passed by the trial court against the appellant no. 2, Dina @ Din Dayal, is hereby set aside.

31. The appellant no. 2 is on bail. His bail bond is cancelled and sureties are discharged. He need not to surrender.

32. The criminal appeal is allowed qua appellant no. 2, Dina @ Din Dayal, only.

33. Let the lower court record be returned to the trial court along with a copy of judgment for necessary compliance.

(Harvir Singh,J.) (Siddharth,J.)

April 3, 2026

Rohit