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PETITIONER: BANWARI RAM ORS.

       Vs.

RESPONDENT: STATE OF UP

DATE OF JUDGMENT:       10/12/1997

BENCH: G.T. NANAVATI, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CRIMINAL APPEAL NO.579 OF 1980                       J U D G M E N T PATTANAIK,J.      These two  appeals arise out of the same Sessions Trial being Sessions  Trial No.  332 of  1973 in  the Court of Vth Additional and  District Judge, Varanasi. The appellants are the members of Pradeshik Armed Constabulary belonging to the 5th batallion  and their  Headquarter was  at  Ramnagar.  An unfortunate and  unsavoury incident  occurred on  account of the decision  of the  State Government  that the Army should take  over  charge  of  the  armoury  and  magzines  of  the Provincial Pradeshik  Armed  Constabulary  throughout  Uttar Pradesh. It  is on  account of  the aforesaid  direction the forces belonging  to the Personnel from taking charge of the armoury and in furtherance of which 12 personnel from taking charge of  the Army  were killed  and 32  were  injured.  On account of  the firing  form the Army 4 persons belonging to the Pradeshik  Armed Constabulary  were killed and some were injured. Ultimately, however, the direction of the State was implemented and  the Army  took charge  of the  armoury  and other weapons.  The incident  occurred during  the night  of 21.5.1973 and  continued for  a fairly long period till 4.30 p.m. of  22.5.1973. On the basis of First Information Report given on  22nd May,  1973, at  7.30 p.m. a criminal case was instituted  and  a  chargesheet  was  submitted  against  44 accused  persons  including  the  appellants  in  these  two appeals under  Sections 147, 148, 302/149, 307/149, 324/149, 326/149, 395/397,  120B and  427 IPC  and Rule  43(5) of the Defence of  India Rules  as well  as under Sections 6(b) and 7(c) U.P.  Pradeshik Armed Constabulary Act. Accused Banwari Ram, Ram  Kirat Yadav,  Hira  Shanker  Singh,  Sheo  Bahadur Yadav,  Lal   Babu  Singh,   Ramayan  Singh,  Indradeo  Ram, Ramashanker Singh,  Ram Nath Sharma, Lok Nath Singh and Tara Prasad Tewari  were also  charge sheeted  under Section  409 IPC. The  case was  committed to the Court of Sessions Judge by the  Chief Judicial  Magistrate, Varanasi  and ultimately the accused  persons were  tried by  the Vth  Additional and District Judge, Varanasi.      The prosecution case in nutshell is that the members of

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the Armed  Constabulary formed  an Association which was not recognised by  the State of U.P. The forces belonging to the Armed Constabulary  who  had  been  posted  in  the  Lucknow University Campus  became indisciplined  and  some  untoward incidents  happened   there  which   compelled   the   State Government  to   take  a   decision  to   disarm  the  Armed Constabulary and  give charge  of the  armoury and  magzines hitherto under  the charge  of the Armed Constabulary to the Army  in   the  entire   State.  When   this  decision   was communicated by  the I.G.  of Police  to the  DIG of  Police Varanasi range  the said  DIG had a telephonic talk with the Commissioner Shri A.K. Mustaf as the situation was going out of control  and in accordance with the decision taken by the State Government  to hand  over  the  arms  and  ammunitions belonging to  the  Armed  Constabulary  to  Army  the  local Administration   at Varanasi  requested the  Army Commandant Lt. Col.  S.K. Verma  to provide military assistance to take over the  charge of the Armed Constabulary Quarter Guard and the Magzine  at Ramnagar.  The Army  personnel discussed the matter with  the civillian  authorities chalked out a scheme of action  and finally  a contingent of army was sent to the Armed  Constabulary   Headquarter  at   Ramnagar  under  the leadership of  Major C.S.  Chima accompanied by a Magistrate First Class. They started the operation at 2.15 a.m. on 22nd May, 1973,  and reached  at the  Try Junction of the road at Rambagh. The  Magistrate then  proceeded towards the Quarter Guard Building  accompanied by the Company Commanders of the Armed Constabulary  leaving their  vehicles away on the road at a  distance of 50 to 60 yards from Quarter Guards on duty there  were   40  to  50  persons  belonging  to  the  Armed Constabulary and  when the  Commanders directed those people to hand  over charge  of the  armoury to  the Military,  the Guards on  duty as  well as  those who  were  present  there became agitated  and openly  refused to hand over the charge to the  Military. Those  Guards also openly declared that if anybody proceeds  to take  over the  charge of Quarter Guard then they  should be taught a lesson. The Magistrate present there also  tried to  persuade  the  members  of  the  Armed Constabulary not  a resist  Army from taking over the charge inasmuch as  it was the decision of the State Government but those persons did not pay any attention to the advise of the Magistrate. These  Armed Constabulary  personnel seeing that Army is marching towards the Quarter Guard sounded the bugle and then  breaking open  the  locks  of  the  armoury  armed themselves to fight out. The Magistrate on duty declared the Assembly of  the Armed  Constabulary at  the  Quarter  Guard Building as unlawful and ordered their dispersal but instead of dispersing  from the  place they  opened  fire  from  the Quarter Guard  Building  towards  the  Military  force.  The officers of  the Military  forces marching  towards  Quarter Guard Building thereupon returned back and Major Cheema, who was the commanding officer of the Army sought for permission of the Magistrate the Army personnel took their position and opened  fire  and  a  regular  battle  started  between  the personnel of  the  Armed  Constabulary  and  the  Army.  The Magistrate  then   had  a  telephonic  discussion  with  the District Magistrate and sought for reinforcement of the Army personnel. Lt. Col. S.K. Verma reached the place of incident with the  reinforcement of Military personnel accompanied by Major N.N.  Jolly. Under  the orders  of Col.  Verma a group lead by  Major Jolly  started approaching  the Quarter Guard Building from   one direction and another group lead by Col. Verma proceeded  from another  direction.  Both  the  groups faced stiff  resistance from  the personnel belonging to the Armed  Constabulary   and  ultimately   Armed   Constabulary

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personnel surrendered  and the Military took over the charge of the  armoury in  the Quarter  Guard Building.  As already stated, on  the basis  of First Information Report lodged on 22.5.1973 at  7.30 p.m.  a Criminal  case was registered and after necessary investigation charge sheet was filed against 44 persons  including the  appellants in  these two appeals. The learned  Additional Sessions  Judge Acquitted  9 accused persons  of  all  the  charges  levelled  against  them  and convicted accused Banwari Ram. Ram Kirat Singh Yadav, Ganesh Prasad, Sheo  Bahadur Ram,  Hira  Shankar  Singh,  Lok  Nath Singh, Rama  Shanker Singh, Lal Babu Singh, Ram Nath Sharma, Indradeo Ram  and Tara  Prasad Tewari  of the  offence under Sections 302/149,127,148,302/149.427/149  IPC and Rule 43(5) of the Defence of India Rules as well as under Sections 6(b) and 7(c)  of the  UP Pradeshik  Armed Constabulary Act. They were, however,  acquitted  of  the  charges  under  Sections 324/149,326/149,325/149 and  120B IPC.  One Chhabinath Singh was convicted  only of the offence under Section 7(c) of the UP Pradeshik Armed Constabulary Act and was acquitted of the remaining  charges.   Accused  Bansh  Narain  Singh,  Ghulam Sarvar, Purshottam  Singh, Virendra  Singh Bhadauria,  Indra Ssingh Rai and Kesh Nath Singh were acquitted of the charges under Sections  302/149,307/149,324/149,326/149,395/397  IPC and 120B  IPC but  were  convicted  for  the  offence  under Sections 147,  148, 427/149  IPC and 43(5) of the Defence of India Rules  and Sections 6(b) and 7(c) of the UP Provincial Armed Constabulary  Act. Accused Shambhu Singh, Jagdish Rai, Hira Lal  Tripathi, Nand  Kumar Yadav,  Banshidhar Tripathi, Shamim Ahmad,  Markandey Singh,  Mushtaq  Ahmad,  Ram  Kewal Singh, Satya  Narain Prasad  Singh, Anil Kumar Dass, Jagdish Singh  Prasad   Mishra   were   convicted   under   Sections 147,427/149 IPC 43(5) of the Defence of India Rules and 7(c) of the  UP Provincial  Armed Constabulary  Act.  They  were, however,   acquitted   of   the   charges   under   Sections 148.302/149.307/149.324/149,326/149,395/397 and 120B IPC and Section 6(b) of the UP Provincial Armed Constabulary Act.      19 of  the convicted  accused persons  filed a Criminal Appeal No.2478  of 1976.  Accused Banwari  Ram and 11 others filed a  Criminal Appeal  No. 2587 of 1976 challenging their conviction  and   sentence  passed   against  them.  Accused Chhabinath  filed   a  Criminal  Appeal  No.  2823  of  1976 assailing  his   conviction  under   Section  7(c)   of  the Provincial Armed  Constabulary Act.  Three  of  the  accused persons Mushtaq  Ahmad, Anil Kumar and Jagdish Prasad Mishra did not prefer any appeal and suffered the sentences awarded against them.  The State  also filed an appeal against total acquittal of  the 11 accused persons as already indicated as well as  against the acquittal of other persons of different charges. All  these appeals  were disposed  of by  a  common judgment dated 26th of September, 1979 by the Division Bench of the  Allahabad High  Court out  of which  the present two appeals have been preferred.      In  Criminal   Appeal  No.579   of  1980  there  are  5 appellants and in Criminal appeal No. 8 of 1980 there were 6 appellant   out of  whom appellant  Banwari Ram  and  Ganesh Prasad have  died during the pendency of the appeal. Thus in all 9  appellants are  now before  the Court  in  these  two appeals, they  being Bans Narain Singh, Shambhu Singh, Satya Narain Prasad, Ramayan Singh, Tara Prasad Tewari, Ram Kirath Singh, Ram Shanker Singh, Lok Nath Singh and Ramnath Sharma. These  appellant   have  assailed   their  conviction  under Sections  303/149.148,307/24   and  Section   7(c)  of   the Provincial Armed  Constabulary Act.  It may  be stated  that appellants Bans Narain Singh, Shambhu Singh and Satya Narain Singh thought were acquitted by the Learned Session Judge of

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the charge  under Sections  303/249,307/149 and  148 IPC but the Government  Appeal against  their acquittal  having been allowed by  the High  Court of  the charges  under  Sections 302/149,307/149 and  148 IPC.  Before this Court two sets of arguments had  been advanced  by the learned counsel for the appellants in  the two  appeals. So  far  as  the  order  of acquittal passed by the Sessions Judge having been set aside and 3  of the  appellants, as  already stated,  having  been convicted, it  was  urged  that  the  High  Court  committed serious error  in not  adverting to  the reasons advanced by the Sessions  Judge in  passing an order of acquittal and no reasons having been indicated for setting aside the order or acquittal the  impugned order of conviction, so far as those appellants are concerned, is on the face of it erroneous and cannot be  sustained. The arguments so far as the appellants whose conviction and sentence has been passed by the learned Sessions Judge  and affirmed  by the  High Court is that the prosecution case  must be  held  not  to  be  proved  beyond reasonable doubt,  inasmuch as  in respect  of the  12  Army personnel found  dead neither there has been any inquest nor there has  been any  postmortem report  and consequently the fact  that     homicidal   death  occurred   has  not   been established. Further  argument advanced  was that even if it is held  that the prosecution has been able to establish the 12 persons belonging to the Army forces died but there is no evidence to indicate that their death occurred on account of the  shooting  from  the  appellants’  and,  therefore,  the conviction of  the appellants  of the  charge under  Section 302/149 cannot  be sustained.  It was also contended that so far as appellant Shambhu Singh is concerned, on the admitted prosecution case  that he was not there at the Quarter Guard when the  firing started and came at a later stage he cannot be held  to be  a member of the unlawful assembly nor he can be held  to  be shared a common object particularly when the prosecution evidence  is totally  silent with  regard to the overt Act by the said Shambhu Singh.      So far as the contention that order of acquittal passed by the  Sessions Judge  has been  reversed by the High Court without considering  the reasons  advanced  by  the  learned Sessions Judge  in support  of the order of acquittal, we do not ind  any force with the same. It is now too well settled that  under   the  Criminal   Procedure  Code  there  is  no difference so  far as  the power  of the  Appellate Court is concerned to  deal with an appeal from a conviction and that from an  appeal against an order of acquittal excepting that an appeal  against a  conviction is  as of right and lies to Courts of different jurisdictions depending on the nature of sentence and  kind of trial and the Court in which the trial was held,  whereas an  appeal against  an order of acquittal can be  made only  to the  High Court  with the leave of the Court. The  procedure for  dealing with two kinds of appeals is identical  and the  powers  of  the  Appellate  Court  in disposing of  the appeals  are in essence the same. The High Court, therefore,  has full  powers while  hearing an appeal against an order of acquittal, to re-appreciate the evidence and to  come to  a conclusion whether the order of acquittal passed by  the Sessions  Judge was  per se  bad or  not. If, however, on  the evidence two views are reasonably possible, one supporting acquittal and the other indicating conviction then the  High Court  would not  be justified in interfering with an  order of acquittal merely because it takes the view that it  would have  taken the other view sitting as a Trial Court. It  would, therefore,  be correct  to state  that the High Court  while reversing an order of acquittal must apply its mind  to the  reasons given  by the Trial Court and find

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out whether  such reasons are at all sustainable or not. But on examining the reasons advanced by the Trial Court as well as on  re-appreciating the  evidence on  record if  the High Court is satisfied that the Appreciation of evidence made by the Trial  Court is  per se  bad  then  there  would  be  no limitation on  the power  of the  High Court to set aside an order of  acquittal. If  the impugned  judgment of  the High Court setting  aside the  acquittal of  some of  the accused persons by  the learned  Sessions Judge  and convicting them under Section  302/149 IPC  is examined  from the  aforesaid stand point  we really  do not  find any  infirmity with the same. The  High Court  has  indicated  the  fallacy  of  the reasonings  advanced   by  the  learned  Sessions  Judge  in acquitting some  of the accused persons by holding that "the Trial Court  having held  those accused persons were members of an  unlawful assembly, they could not be exonerated under Section 302/149  and 307/149."  On analysis  of the evidence the High Court has come to the conclusion that those accused persons became  the members  of an unlawful assembly and had seen some  of the  members of  that  assembly  had  equipped themselves with  rifles and have been indiscriminately using them against the Army Jawans. Some of the accused persons in fact were  injured which establishes the fact of their being present at  the place  of occurrence  and their  presence is also otherwise  established through  the oral  testimony  of more than  two prosecution  witnesses. Once  it is held that they were  also members  of unlawful  assembly they  will be liable for  the unlawful  activities of  the members  of the said assembly,  even if  they might  not have actually fired the guns. On the materials on record the High Court has come to the  conclusion that  not only the persons concerned were members of  unlawful assembly but also their presence at the spot constituted  sufficient encouragement for other members of the  said assembly who indiscriminately started firing at the Army  jawans. It  is well  settled that  if  offence  is committed by  some members  of an unlawful assembly then the other members  of the  assembly  are  also  liable  for  the offence under  Section 149 of the Indian Penal Code. We have also carefully  scrutinised  the  judgment  of  the  learned Sessions Judge  as well as that of the High Court and we are of the  considered opinion  that the  High Court  was wholly justified in  reversing an  order of acquittal passed by the learned Sessions  Judge and  we do not find any error of law therein.      Coming now to the arguments advanced on behalf of those accused persons  whose conviction and sentence passed by the learned Sessions  Judge have  been upheld  in an  appeal, it appears to  us that  the High Court while hearing  an appeal against the judgment of the learned Sessions Judge has fully re-appreciated the  evidence and has affirmed the conclusion arrived at  by the  learned Sessions  Judge by  applying the test of  identification by  two or  more of  the prosecution witnesses and  also by  examining  the  duty  chart  of  the accused persons  which indicates persons who were present at the relevant  point of  time at  the Quarter Guard duty. The arguments of  the learned counsel appearing on behalf of the appellants that in the absence of any inquest or post mortem in respect  of the deceased Army personnel it has to be held that  the  prosecution  case  has  not  been  proved  beyond reasonable doubt  is an  argument  which  is  merely  to  be mentioned  for  being  rejected.  The  prosecution  evidence unequivocally establishes  the fact that the accused persons belonging   to    the   Provincial    Constabulary   started indiscriminately firing  at the  Army jawans  who  had  been called upon  to take  charge of  the armoury.  On account of

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such indiscriminate  firing by the members of the Provincial Constabulary 12  persons belonging  to the  Army died  whose dead bodies  were recovered  from the  spot itself  and  the necessary death  certificates had been issued by the Medical authority. In  such an  event non holding of any post mortem examination is  immaterial and the contention of the learned counsel appearing  for the  appellants that  the prosecution failed on  that score  is wholly unsustainable in law and we have, therefore,  no hesitation  to  reject  the  same.  The further  argument  that  the  prosecution  evidence  is  not categorical to  the face  that the  death of the Army jawans occurred on  account of  firing by the appellants is equally unsustainable in  view of  the charge under Section 302 read with 149  IPC and  in view  of the findings that the accused appellants together  with several  others belonging  to  the Provincial Armed  Constabulary formed  an unlawful  assembly and in  resisting the  Army jawans from taking charge of the Armoury and  the Quarter  Guard  indiscriminately  fired  at them. We  have also  examined the evidence on record and the conclusion is  irresistible that  the prosecution  case that accused appellants  being members  of an  unlawful  assembly indiscriminately started  firing at  the Army  jawans  which resulted in  the death oaf 12 Army personnel has been proved beyond reasonable  doubt, and  as such,  the High  Curt  has rightly convicted  them under  Section 302/149 IPC.  We have also considered the argument specifically advanced on behalf of the  appellant Shambhu  Singh to  the effect that Shambhu Singh was  not there  at the  Quarter Guard  when the firing started and  he came  at a  later stage  and as  such cannot beheld to  be a member of an unlawful assembly but we do not find any substance in the same.      PW 3  Vishwa Nath  Pandey was  the senior  most Company Commanders in  respect of  9 companies  constituting the 5th Batallion. He  had gone  to the  place of occurrence several times both in the beginning of the incident as well as after the arrival  of the  Armed  forces  and  marched  with  them towards the Quarter Guard. According to him he could see and recognise from  amongst the  Provincial  Constabularies  who became unlawful  and started  firing  at  Armed  jawans,  12 persons including  head constable  Shambhu Singh. He further indicated that  he had seen all of them at the Quarter Guard and 10  of them  were  firing.  In  view  of  the  aforesaid positive evidence  of PW3  the senior most Company Commander which has  been accepted  by the  two  Courts  below  it  is difficult for  us to  sustain the  argument advanced  by the learned counsel  for the appellant Shambhu Singh that he was not a member of the unlawful assembly from the beginning and even at  later point  of time he has not done anything so as to convict  him by  taking recourse  to Section 149 IPC. We, therefore,  reject  the  said  submission  advanced  by  the learned counsel  for Shambhu  Singh.  Though  normally  this Court  does   not  re-appreciated   and  held  the  evidence reliable, but  in view  of the  fact that  large  number  of appellants were  involved and  incident itself occurred in a very peculiar  situation we  have also ourselves scrutinised the evidence  and we  find the  evidence to  be reliable and trustworthy and  the learned  Sessions Judge  as well as the High Court  rightly relied upon the said testimony in basing conviction against  the accused  appellants. We  do not find any legal  infirmity with the conviction and sentence passed by  the  High  Court  against  the  appellants  and  in  our considered  opinion   prosecution  has  proved  the  charges against the  accused persons beyond reasonable doubt. In the premises aforesaid both the Criminal appeals are dismissed.      Those accused  persons who are on bail their bail bonds

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stand cancelled  and they are directed to surrender to serve the sentences.