RAMVIRversusSTATE OF UTTAR PRADESH

                       [2018] 13 S.C.R. 547                            547


                             RAMVIR                                    A
                                 v.
                  STATE OF UTTAR PRADESH
                 (Criminal Appeal No. 183 of 2013)
                       OCTOBER 26, 2018                                B
[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

         Penal Code, 1860 – ss.148, 149 and 302 – Case of the
prosecution that the appellant along with five other persons armed
                                                                       C
with guns surrounded one ‘S’ and his son and fired shots whereupon
‘S’ on receiving injuries fell down and died – Trial Court while
acquitting the appellant of the charges u/s.149, IPC, convicted him
u/s.302, IPC – Other five accused persons were acquitted from all
the charges leveled against them – High Court in appeal filed by
the appellant upheld his conviction u/s.302, IPC and further           D
convicted him u/ss. 148/149, IPC – Propriety of – Held: Appellant
was acquitted by the Sessions Judge for commission of offences
falling u/ss.148/149, IPC – Appellant’s acquittal was not challenged
by the State by filing any appeal before the High Court thus there
was no occasion for the High Court to have gone into this question
                                                                       E
in appeal filed by the appellant – Five co-accused persons having
also been acquitted of the charges framed against them
u/ss.148/149, IPC, no case was made out against the appellant for
his conviction u/ss.148/149, IPC – Once it was held by the Sessions
Judge that all the six accused persons could not be convicted
u/ss.148/149, IPC and were accordingly acquitted and no appeal         F
having been filed by the State against this part of the order, the
High Court was not justified in convicting the appellant
u/ss.148/149, IPC – Further, appellant’s conviction u/s.302, IPC is
also not factually and legally sustainable – Appellant entitled for
benefit of doubt and is acquitted of the charges framed against him
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u/s.302 r/w ss.148/149, IPC.
      Allowing the appeal, the Court
     HELD: 1.1 Appellant’s conviction under Section 148/149
IPC is not legally sustainable and deserves to be set aside for
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                                547
548           SUPREME COURT REPORTS                     [2018] 13 S.C.R.


A     more than one reasons. First, the appellant was already acquitted
      by the Sessions Judge for commission of offences falling under
      Section 148/149IPC. Also, the appellant’s acquittal was not
      challenged by the State by filing any appeal before the High Court.
      In this view of the matter, there was no occasion for the High
      Court to have gone into this question in an appeal filed by the
B
      appellant as the same had attained finality. Second, in any event,
      five co-accused persons having also been acquitted of the charges
      framed against them under Section 148/149IPC, no case was made
      out against the appellant for his conviction under Section 148/
      149IPC. Once it was held by the Sessions Judge that all the six
C     accused persons could not be convicted under Section 148/
      149IPC and were accordingly acquitted and no appeal having been
      filed by the State against this part of the order, the High Court
      was not justified in convicting the appellant under Section
      148/149IPC. Third, as mentioned above, the prosecution had
      named six accused persons as being the members of “unlawful
D
      assembly” of which the appellant was one. [Paras 13-17]
      [551-E-H; 552-A-B]
             1.2 It is not the case of prosecution that even though these
      six accused persons were acquitted of the charges framed under
      Section 148/149 IPC, yet there were some more unknown persons
E     present at the time of occurrence with the appellant other than
      five named accused persons and, therefore, the appellant could
      still be convicted under Section 148/149 IPC as a member of an
      unlawful assembly with such unknown persons notwithstanding
      the acquittal of five accused persons. The High Court was not
F     justified in convicting the appellant (A-1) for commission of the
      offences punishable under Section 148/149 IPC. The conviction
      under twin sections is, therefore, not sustainable both on facts
      and in law and hence deserves to be set aside. [Paras 18, 19]
      [552-C-E]
G           1.3 Appellant’s conviction under Section 302 IPC is
      concerned, the same is also not factually and legally sustainable.
      There was no evidence to prove that appellant was the author of
      the gun shot which killed ‘S’; Second, the ballistic report (Ex C-
      1) did not support the prosecution case inasmuch as it opined
      that cartridges fired and recovered from the spot could not have
H     been so fired from the rifle belonging to the appellant and the
            RAMVIR v. STATE OF UTTAR PRADESH                                549


third, the alleged rifle was not taken in police custody immediately        A
after the incident but it was surrendered by the appellant in the
Court. In the light of foregoing reasons, the appellant is entitled
for benefit of doubt and hence deserves to be acquitted of the
charges framed against him under Section 302 read with Section
148/149 IPC. The appellant is acquitted of the charges for
                                                                            B
commission of offences punishable under Section 302 read with
Section 148/149 IPC. [Paras 20-23] [552-B-H; 553-A-C]
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 183 of 2013.
      From the Judgment and Order dated 28.02.2012 of the High Court        C
of Judicature at Allahabad in Criminal Appeal No. 1649 of 1983.
     S. R. Singh, Sr. Adv., Mangat Prasad, Adarsh Verma, Ms. Namita
Choudhary, Advs. for the Appellant.
      Manoj K. Mishra, Pradeep Misra, Advs. for the Respondent.
                                                                            D
      The Judgment of the Court was delivered by
      ABHAY MANOHAR SAPRE, J. 1. This appeal is filed by the
accused(A-1) against the final judgment and order dated 28.02.2012
passed by the High Court of Judicature at Allahabad in Criminal Appeal
No. 1649 of 1983 by which the appeal filed by the appellant herein was
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dismissed.
      2. In short, the case of the prosecution is as follows.
       3. On 25.12.1980 around 5 P.M, Siya Ram (deceased) and his
son - Kripal (PW-2) were going to a place called “ Baithak “ in a village
- Bishnodi (PS -Patiyali) from their house. When they reached near the      F
hut of one Ram Vilas, the appellant (Ramvir) along with five persons
namely (1) Bhoorey (2) Satya Ram (3) Shaitan Singh (4) Ram Das and
(5) Jagdamba Prasad armed with guns/rifles came there and surrounded
Siya Ram and fired shots from their guns/rifles. Siyaram on receiving
injuries fell down and succumbed to the injuries.
                                                                            G
      4. On hearing the noise, Badri (PW-1), uncle of the deceased
along with co-villagers who happened to be in near proximity with the
place of occurrence rushed to the spot. The appellant (A-1) and five
other accused persons (A-2 to A- 6) seeing the mob fast approaching
towards them, ran away from the spot by firing gun shots in the air.
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550             SUPREME COURT REPORTS                           [2018] 13 S.C.R.


A            5. Badri (PW-1) - uncle of deceased lodged FIR (Ex- Ka- 2) on
      the next day morning in police station (Patiyali) against six named persons.
      The investigation was done which resulted in arrest of the
      afore-mentioned six named persons. The six persons were put to trial
      for commission of offences punishable under Section 148/149 read with
      Section 302 IPC. The prosecution examined eight witnesses whereas
B
      the defense also examined two witnesses.
            6. By Judgment dated 15.7.1983, the learned Sessions Judge
      acquitted five accused persons(A-2 to A- 6) out of six, from all the
      charges leveled against each of them. So far as the appellant (A- 1) is
      concerned, he was also acquitted of the charges under Section 149IPC
C     but was convicted for commission of an offence punishable under Section
      302 IPC. The operative portion of the order reads as under:
                 “Accused Ramvir(appellant herein) is hereby held guilty
             of the offence punishable under Section 302 IPC simpliciter
             and he is hereby convicted for the same. He is however
D            held not guilty of offence punishable under Section 149 IPC
             and he is hereby acquitted of the same.
                 Accused Bhoorey, Satya Ram, Shaitan Singh, Ramdas
             and Jagdamba Prasad are not found guilty under Sections
             148 and 302/149 IPC and they are hereby acquitted.
E
                They are on bail. Their bail-bonds are hereby cancelled
             and sureties are discharged. They need not surrender.
                Accused Ramvir is also on bail. He shall be taken into
             custody herewith. His bail-bonds are hereby cancelled and
F            sureties are discharged.”
             7. It is against this order; the appellant (Ramvir), feeling aggrieved,
      filed criminal appeal in the High Court of Allahabad. So far as the State
      is concerned, the State did not file any appeal against the part of the
      order whereby A-2 to A-6 were acquitted of all the charges, and nor has
      the State filed any appeal against the acquittal of A-1 with respect to the
G
      offence punishable under Section 149 IPC. To that extent, therefore,
      the judgment of the Sessions Judge attained finality.
            8. By the impugned order, the High Court dismissed the appeal
      and while upholding the appellant’s conviction under Section 302 IPC
      further convicted the appellant for commission of offences punishable
H
             RAMVIR v. STATE OF UTTAR PRADESH                                     551
                [ABHAY MANOHAR SAPRE, J.]

under Section 148/149 IPC. The operative portion of the High Court’s              A
order reads as under
           “Accordingly, we convict the appellant by altering his
       conviction from that under Section 302 IPC to Sections 148
       and 302/149 IPC. We do not intend to inflict any other
       sentence under both the counts other than that had been                    B
       passed against him by the learned trial Judge.”
       9. It is against this order; the appellant (A-1), feeling aggrieved,
filed the present appeal after obtaining special leave to appeal in this
Court.
      10. So, two questions arise for consideration in this appeal: First,        C
whether the High Court was justified in upholding the appellant’s (A-1)
conviction in so far as it relates to the offence punishable under Section
302 IPC and Second whether the High Court was justified in convicting
the appellant under Section 148/149 IPC.
     11. Heard Mr. S.R. Singh, learned senior counsel for the appellant           D
and Mr. Manoj K. Mishra, learned counsel for the respondent.
       12. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are inclined to allow the appeal, set aside
the impugned order, and acquit the appellant of the charges framed under
Section 302 read with Section 148/149 IPC.                                        E
      13. In our considered opinion, so far as appellant’s conviction under
Section 148/149 IPC is concerned; the same is not legally sustainable
and deserves to be set aside for more than one reasons.
       14. First, it is not in dispute that the appellant was already acquitted
                                                                                  F
by the Sessions Judge for commission of offences falling under Section
148/149IPC. It is also not in dispute that the appellant’s acquittal was
not challenged by the State by filing any appeal before the High Court.
      15. In this view of the matter, there was no occasion for the High
Court to have gone into this question in an appeal filed by the accused
(appellant herein) as the same had attained finality.                             G

      16. Second, in any event, five co-accused persons having also
been acquitted of the charges framed against them under Section 148/
149IPC, no case was made out against the appellant for his conviction
under Section 148/149 ibid. In other words, once it was held by the
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552             SUPREME COURT REPORTS                           [2018] 13 S.C.R.


A     Sessions Judge that all the six accused persons could not be convicted
      under Section 148/149 ibid and were accordingly acquitted and no appeal
      having been filed by the State against this part of the order, the High
      Court was not justified in convicting the appellant under Section
      148/149IPC.
B           17. Third, as mentioned above, it is not in dispute that the prosecution
      had named six accused persons as being the members of “unlawful
      assembly” of which the appellant was one.
            18. It is not the case of prosecution that even though these six
      accused persons were acquitted of the charges framed under Section
C     148/149IPC, yet there were some more unknown persons present at the
      time of occurrence with the appellant other than five named accused
      persons and, therefore, the appellant could still be convicted under Section
      148/149 as a member of an unlawful assembly with such unknown
      persons notwithstanding the acquittal of five accused persons.
D            19. In the light of afore-mentioned three reasons, we are of the
      considered opinion, that the High Court was not justified in convicting
      the appellant (A-1) for commission of the offences punishable under
      Section 148/149 IPC. The conviction under twin sections is, therefore,
      not sustainable both on facts and in law and hence deserves to be set
      aside.
E
            20. Now so far as appellant’s conviction under Section 302 IPC is
      concerned, the same is also not factually and legally sustainable for
      following reasons. At the out set, it is apposite to quote how the High
      Court in Para 15 dealt with the issue in question.

F            “….Even at the cost of repetition, we want to note that
             there was no evidence on record suggestive of the
             inference which was drawn by the learned trial judge against
             the present appellant that he was author of the shot that hit
             and killed the deceased Siya Ram…”
             21. The aforesaid reasoning itself suggests that there was no
G
      evidence to prove that appellant was the author of the gun shot which
      killed Siyaram: Second, the ballistic report (ExC-1) did not support the
      prosecution case inasmuch as it opined that cartridges fired and recovered
      from the spot could not have been so fired from the rifle belonging to the
      appellant and the third, the alleged rifle was not taken in police custody
H
               RAMVIR v. STATE OF UTTAR PRADESH                                 553
                  [ABHAY MANOHAR SAPRE, J.]

immediately after the incident but it was surrendered by the appellant in       A
the Court.
      22. In the light of foregoing reasons, we are of the view that the
appellant is entitled for benefit of doubt and hence deserves to be
acquitted of the charges framed against him under Section 302 read
with Section 148/149 IPC.                                                       B
       23. Accordingly the appeal succeeds and is allowed. Impugned
order is set aside. The appellant - Ramvir (A-1) is acquitted of the charges
for commission of offences punishable under Section 302 read with
Section 148/149IPC. He is, therefore, set at liberty unless required in
any other case.                                                                 C
      24. Pending application(s), if any, stand dispose of.


Divya Pandey                                                  Appeal allowed.

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