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PETITIONER: RAM DUTT

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT:       17/04/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) VENKATASWAMI K. (J)

CITATION:  JT 1996 (4)   760        1996 SCALE  (3)619

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.N. RAY,J.      This appeal  is directed  against Order  dated November 25, 1983  passed by  the Division  Bench of  Allahabad  High Court, (Lucknow  Bench) in  Crl. Appeal No. 151 of 1976. The appellant and  six other  co-accused  faced  a  trial  under Section 148,  302/149 and  307/148 Indian  Penal Code before the learned  Additional District  and Sessions Judge, Kheri, in Sessions  Trial No.A-45  of 1976.  The learned Additional Sessions Judge  acquitted accused  No.4; * But convicted the appellant Ram Dutt under Sections 148. 307 read with Section 149, and  302 IPC.  The accused  Vijai Prakash,  Ram  Tahal, Ramlal, Dharai  and Shed  Dutt were convicted under Sections 148, 307  read with  149 and  302 read  with  149  IPC.  The appellant was  sentenced to suffer life imprisonment for the offence  under   Section  302   IPC,  five  years’  rigorous imprisonment under Section 307 read with Section 149 and one year’s rigorous  imprisonment  under  Section  148.  Various sentences were  passed against  the other convicted accused. It was directed that the sentences would run concurrently.      Against the  said conviction and sentence passed by the learned Additional  Sessions Judge,  the accused  Ram  Tahal preferred Criminal  Appeal No.900 of 1976 before the Lucknow Bench  of  the  Allahabad  High  Court.  The  accused  Vijay Prakash, Ramlal,  Dharai @  Ram Dass and Sheo Dutt preferred Criminal Appeal  No.12 of 1977 before the said Lucknow Bench and the appellant Ram Dutt preferred Criminal Appeal No. 151 of 1976 before the said Lucknow Bench against the conviction and section passed by the learned Additional Sessions Judge. All the  said appeals were analogously heard and disposed of by the common judgment passed on November 25, 1983. The High Court convicted  Vijai Prakash,  Ram Tahal under Section 324 read with Section 34 and sentenced them to suffer one year’s rigorous imprisonment  but they  were acquitted of the other charges. The accused Ramlal, Dharia @ Ram Dass and Sheo Dutt were not  found guilty  of any  of the charges and they were

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acquitted. Their  conviction and  sentence were set aside by the High  Court.  The  conviction  of  the  appellant  under Section 302  and the  sentence of life imprisonment for such offence  was,   however,  upheld  by  the  High  Court.  The conviction of  the appellant  under Sections  148, 307  read with 149  IPC has been set aside. The appellant Ram Dutt has also been  convicted under  Section 324 read with Section 34 and  has  been  sentenced  to  suffer  one  year’s  rigorous imprisonment. We have been informed that the other convicted accused have  not preferred  any appeal and the only appeal, namely, Criminal  Appeal No.  512 of 1984 has been preferred by Ram Dutt.      The prosecution  case in  short is that the complainant Sanwalia Prasad  and the  accused has strained relations for the last  thirty years  and there had been proceedings under Sections 107  and 117 of the Criminal Procedure Code between them. The appellant Ram Dutt and the other accused Sheo Dutt were real  Brothers and sons of the accused Jadunath Prasad. The other  accused persons  were closely  related. It is the prosecution  case   that  the   accused  persons   and   the complainant Sanwalia  Prasad and  his son  Pravin Kumar  the deceased and  other injured  persons reside  in the  village Barniya in  the police  station  Pasgawan  in  the  District Kheri. At  about 5.00  P.M. on  November 24, 1975, Sheo Nath was coming to his village in a beffalo-cart from the side of a canal.  When he reached near the fields of Chakrapani, the accused Vijai  Prakash and  Ram Tahal  obstructed  him  from going to  that side.  There was a noisy altercations between Vijai Prakash  and Ram  Tanal and  Sheo Nath. On hearing the noise, Sanwalia Prasad came out of his house to see what had happened. His  son, Pravin  Kumar, also  came with him. When they reached  near Tiraha  in the south of the village, Sheo Nath met them. All the accused persons then reached the said place of  incident on  the northern  side of the village and they stood  towards the south west of the house of Hem Nath. All the accused persons were armed with guns except Jadunath who was  armed with  a rifle. The appellant Ram Dutt was the first persons  who opened  the fire  with a D.B.B.L. gun and thereafter other  persons also  fired from  their respective weapon. In  view of  such firing,  Sanwalia Prasad,  Praveen Kumar, Gurdayal,  Hanuman Saran, Rajesh Kumar, Ram Niwas and Sheo Nath  were injured.  It is  the prosecution  case  that Praveen Kumar  well on the ground being hit by the gun fired by Ram  Dutt and  died on  the spot.  The accused after such firing ran  away towards north. Sanwalia Prasad took Praveen Kumar to  his house  and took  all the  injured persons with him. All  the six injured persons were medically examined at Salia hospital  and thereafter Sanwalia with injured persons went to  police  station  to  lodge  the  first  information report. He handed the report got prepared at his instance in the  police   station  which   was  registered.  Thereafter, investigation was  taken by  the police and the charge sheet was submitted against the said accused.      The appellant,  was convicted  under  Section  302  for murdering the  deceased Pravin  Kumar and  also for  causing injuries to others. Accordingly, he has been convicted under Sections 302,324 read with 34 IPC by the High Court. For the purpose of  disposing of this appeal, it is not necessary to consider the complicity of the other accused persons because Ram Dutt  is the  only appellant in this appeal. The learned counsel appearing  for the  appellant at the hearing of this appeal has  submitted that  although the  conviction of  Ram Dutt under  Section 302  IPC has  been affirmed  by the High Court, both the courts have failed to notice the significant fact which has clearly emerged from the depositions given by

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the eye  witnesses in  the said  Sessions Trial. The learned counsel has  contended that  it is  the positive case of the prosecution and the eye-witnesses that besides the appellant Ram Dutt,  other accused persons also opened fire from their respective fire  arm. The learned counsel has submitted that PW 7  Lok Nath,  stated in  his statement  under Section 161 Cr.P.C. that  Ram Dutt  was armed  with a  pistol and he was found with  such pistol near a guava tree by the side of the house of  Hem Nath.  At the  trial, however,  the  witnesses stated that  Ram Dutt  fired  from  a  double  barreled  gun causing injuries  to  Pravin  Kumar  and  also  to  Sanwalia Prasad, the father of the deceased. It has been contended by the learned  counsel for  the  appellant  that  if  all  the accused had  opened fire from their respective weapon almost simultaneously, it is not possible to precisely determine as to whether  Ram Dutt  had actually caused injuries on Pravin Kumar resulting his death. The learned counsel has submitted that it  is quite  apparent that firing was resorted to by a number of  persons causing injuries on a number of witnesses on the  side of  the prosecution. Even if it is assumed that Ram Dutt  did not  fire from  a pistol  but had fired from a gun, there  is no  convincing evidence on the basis of which it can  be clearly  found that  he had  actually caused  the death of  Pravin Kumar.  The learned  counsel has  submitted that the  High Court  has acquitted  some of the accused and has convicted  Vijai Prakash and Ram Tahal under Section 324 for causing  injuries to  other persons  and  has  passed  a sentence of  one year’s  rigorous imprisonment against them. In the  facts of  the case,  Ram Dutt  should also have been treated similarly  and  his  conviction  under  Section  302 I.P.C. is  not at  all warranted.  In the facts of the case, the concurrent  finding by  the learned  Additional Sessions Judge and by the High Court that Ram Dutt was guilty for the offence under  Section 302 IPC for murdering Pravin Kumar is passed  on   surmise  and   conjecture.   Accordingly,   his conviction under Section 302 is liable to be set aside.      In our view, such contention of the learned counsel for the appellant cannot be accepted. PW 3, Sanwalia Prasad, the father of  the deceased has specifically deposed that it was the appellant  Ram Dutt  who first  opened the  fire with  a double barrel  gun which  critically injured  his son Pravin Kumar and  he also  sustained injuries.  It was  after  such firing by  Ram Dutt  other accused  also  fired  from  their respective fire  arm which  caused  injuries  to  the  other persons. PW  5 Sheo  Nath has  also specifically stated that Ram Dutt  fired from  a gun which hit Pravin Kumar resulting his death.  In view  of such clear and specific evidence, in our view,  there is  no occasion  to entertain a doubt as to whether or  not the deceased was injured by Ram Dutt who had opened fire with a gun. Both the learned Additional Sessions Judge and the High Court having accepted the  depositions of the eye-witnesses  about the complicity of the appellant Ram Dutt in causing the murder of Pravin Kumar had no hesitation in convicting  the appellants  for the  offence  of  murder. There is also clinching evidence that besides the appellant, some other  accused persons also fired from their respective fire arm  thereby causing  injuries to  Sanwalia Prasad  and other persons.  In view  of such depositions, the conviction of the appellant for the offence under Section 324 read with 34 IPC  is also  justified. We, therefore, find no reason to interfere with  the conviction  and sentence  passed against the appellant  and the  appeal is  therefore  dismissed.  It appears that  the appellant  was granted bail by an order of this  Court  dated  April  29.1985.  The  bail  bond  stands cancelled. The  appellant is  directed to  be  arrested  and

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detained in  jail to  serve out  the sentence passed against him.