On a consideration of the totality of the circumstances attendant on the case, we are of the opinion that the conviction of the appellants under Section 304-Part 1 read with Sections 147,148,149 IPC, as recorded by the High Court, is justified. However, in our view, having regard to the singular facts and circumstances, we are inclined to reduce the sentence for the offence under Section 304-Part I/149 IPC to rigorous imprisonment for 7 years. The other sentences are hereby affirmed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPE2LLATE JURISDICTION

CRIMINAL APPEAL NO. 1157 OF 2016
(ARISING OUT OF S.L.P (CRIMINAL) NO.8415 OF 2016)

RAM AUTAR & ORS. .…APPELLANT
VERSUS

STATE OF U.P. ….RESPONDENT

J U D G M E N T

AMITAVA ROY, J.

(1) Leave granted.

(2) The appellants hereby assail the affirmation of their conviction
under Sections 147,148, 149 Indian Penal Code (for short, hereinafter to be
referred to as “IPC”) as recorded by the Trial Court. By the decision
impugned, the High Court, however has altered their conviction from one
under Section 302 IPC to Section 304-Part I IPC. Thereby, the appellants
now stand sentenced to undergo rigorous imprisonment for 10 years and to
pay a fine of Rs.5000/-, in default, to suffer simple imprisonment for
further two months for this offence. All sentences have been ordered to
accrue concurrently.

(3) We have heard Dr. J.P. Dhanda, learned counsel for the appellants and
Mr. Ravi Prakash Mehrotra, learned counsel for the State.

(4) The genesis of the arraignment is traceable to the incident that
witnessed the deadly assault on Lalni @ Raj Kumar, the brother of the
informant Gaya Prasad, on 04.04.1982 at 1.00 p.m. within the precincts of
the house of the deceased.

(5) As the first information laid at 3.15 p.m. on the same date would
reveal, in the morning thereof, the cattle of the deceased had strayed into
the fields of Suraj Bali and others and had allegedly destroyed the Arhar
crop of the accused persons. On being abused by them (accused persons),
the deceased herded back the cattle and returned home crestfallen. While
he was sitting in his compound in the afternoon at about 1.00 p.m. and in
the company of the informant his brother, Gaya Prasad PW-1 as well as
Sitaram PW-2 and Ram Sajeewan @ Dhunna PW-4, altercation broke out between
him and the accused persons including the appellants, who resided next
door, on the same issue. The heated exchanges that followed escalated
tempers, whereupon as per the prosecution, the appellants along with Suraj
Bali and Chandra Bali pounced on the deceased, in a body. On being
exhorted by Suraj Bali to eliminate the deceased, appellant Deo Munni @
Putti, at his instance, brought his gun and fired at Lalni. As Lalni fell,
being injured, the other accused persons joined in the assaults with
lathis. The informant and the other two witnesses though intended to
intervene, they were prevented from doing so, by pointing the gun towards
them. Lalni died at the spot.

(6) On the lodgement of the FIR with the police at about 3.15 p.m., as
herein before mentioned, case was registered under Sections 302,147,148 and
149 IPC. In course of the investigation, inquest on the dead body was
conducted and the sketch map of the place of occurrence was prepared. After
the charge-sheet was laid against the accused persons, charge was framed
under Section 302, read with Sections 147/149 IPC against them, they having
pleaded “not guilty”. Additionally, charge under Section 148 also framed
against appellant Deo Munni @ Putti who was armed with gun, as indicated,
herein before.

(7) The prosecution examined as many as six witnesses including eye
witnesses, namely; Gaya Prasad (PW-1), Sitaram (PW-2), Ram Sajeewan @
Dhunna (PW-4), besides Dr. S.C. Srivastava (PW-5) and Brahm Dev Singh,
Investigating Officer (PW-6).

(8) On the completion of the prosecution evidence, statements of the
accused persons were recorded under Section 313 Cr.P.C.. They also
examined Shyam Lal as their witness in defence.

(9) The Trial Court, on an exhaustive appreciation of the evidence on
record, convicted all the accused persons under Sections 302,147,148 and
149 IPC as mentioned therein. They were amongst others sentenced to
undergo imprisonment for life for the offence under Section 302 IPC. They
were sentenced as well for the other offences.

(10) As referred to hereinabove, the High Court in appeal sustained the
conviction under Sections 147/148/149 IPC but moderated the conviction
under Section 302 IPC to one under Section 304-Part I and the sentence
therefor was ordained to be rigorous imprisonment for 10 years and fine of
Rs.5000/-, in default, simple imprisonment for further two months.

(11) The learned counsel for the appellants has assiduously argued that
the prosecution having failed to prove that the appellants and their co-
accused had been the aggressors who assaulted the deceased and that he
succumbed to the injuries sustained thereby, their conviction and sentence,
if allowed to stand, would signify travesty of justice. According to the
learned counsel, the appellants and the co-accused, while escorting the
cattle of the deceased from the fields to the nearby cattle pond, were
attacked by him and his cohorts, for which DW-1 Shyam Lal had to open fire
in self defence. Without prejudice to this, it has been argued that in any
view of the matter, there was no pre-meditation or pre-concert on the part
of the appellants and the co-accused to attack or assault the deceased and
having regard to the incident that had occurred in the fields earlier in
the day, the sentence awarded by the High Court is unduly harsh and is
liable to be appropriately scaled down in the attendant facts and
circumstances.

(12) The learned counsel for the respondent, in refutation, has urged that
it having been proved beyond all reasonable doubt by unimpeachable
testimony of the eye witnesses, Gaya Prasad (PW-1), Sitaram (PW-2) and Ram
Sajeewan @ Dhunna (PW-4) that the appellants and their co-accused Suraj
Bali and Chandra Bali had formed an unlawful assembly and had with the
intention of eliminating the deceased, had jointly launched a lethal attack
by using, amongst others, a fire arm, the conviction recorded by the High
Court, does not merit interference. According to him, having regard to the
seriousness of the charges proved, the appellants have been let off lightly
with the substantive sentence of ten years’ rigorous imprisonment.

(13) We have lent our due consideration to the materials on record as well
as the competing assertions. Noticeably, the findings on the incident are
concluded by concurrent deductions of the two courts below. This
notwithstanding, we have examined in particular, the evidence of the eye
witnesses Gaya Prasad (PW-1), Sitaram (PW-2) and Ram Sajeewan @ Dhunna (PW-
4) as well as that of the Dr. S.C. Srivastava (PW-5), who had performed the
post-mortem examination on the dead body.

(14) A close scrutiny of the evidence of the eye witnesses leaves no
manner of doubt that not only they have with noteworthy consistency and
cohesion authenticated the case of the prosecution in all material
particulars, they have identified as well the appellants and their co-
accused and also have provided graphic details of the events in the
sequence in which the same unfolded at the place of occurrence. The
testimony of the Dr. S.C. Srivastava (PW-5) reveals fire arm wounds on the
head, chest and right upper arm of the deceased together with the multiple
abrasions and contusions on various parts of the body. According to this
witness, death had occurred due to shock and haemorrhage as a result of the
ante-mortem injuries.

(15) Noticeably this witness also referred to lacerated/incised wounds
and contusions sustained by the appellants Deo Munni, Ram Autar and the co-
accused Suraj Bali which, according to the medical expert, were however
simple in nature.

(16) Though an attempt had been made at the trial by the defence to shift
the place of occurrence to fit in with their version, as offered in course
of the statements under Section 313 Cr.P.C., and urged in course of the
arguments, the evidence of the Investigating Officer Brahm Dev Singh (PW-
6), when considered along with the sketch map, Ex. A-12, the same stands
belied. That the place of occurrence was, as cited by the prosecution is,
also corroborated by the blood stained earth collected therefrom in course
of the investigation. That the blood was human blood also stands proved
by the report of the chemical analyst. These proved facts, in a way,
demolish the defence version totally in all respects.

(17) Though, at the trial as well as before the High Court, the
prosecution case was sought to be discredited for the absence of
explanation of the injuries suffered by some of the accused persons, in
absence of any evidence forthcoming that at the relevant time, the
deceased was armed or that the prosecution witnesses present did launch a
counter attack, the courts below rightly dismissed this plea. The High
Court, noticing the injuries, which the Dr. S.C. Srivastava had identified
to be simple in nature, did conclude, had been self inflicted in order to
contrive a defence. Bearing in mind the evidence available and the overall
scenario, this finding, in our estimate, cannot be repudiated to be absurd
or illogical.

(18) In the ultimate analysis, however, one cannot overlook the
progression of events that occurred since the incident of trespass of the
cattle of the deceased in the fields of Suraj Bali and others leading to
abuse and unpleasantness between them earlier in the day. The second bout
of bickerings precipitated in the afternoon on the same day while the
deceased, appellants and the co-accused were sitting in their respective
compounds, abutting each other. The witnesses of the incident though, at
the preliminary stages, did advise the deceased to go in and avoid a
brewing confrontation, he obdurately refused to do so and stoked the
growing indignation so much so that eventually he was shot at and also
assaulted by the appellants and their companions. The materials on record
do suggest that the deceased did also contribute to the escalating tension
and in the process the accused persons jointly unleashed attack on him by
lathis and also shot him. A sudden spurt of irreversible events thus
got triggered thereby.

(19) In the fact situation that developed in quick succession, we are of
the comprehension that there was as such no pre-meditation or prior concert
on the part of the accused persons to commit murder of Lalni. The incident
happened on the spur of the moment and in an uncontrollable, embittered and
agitated state of enragement, thus depriving the accused persons of their
power of self control. Though during the assaults, the accused persons
were understandably aware of the likely results thereof, it is difficult to
perceive that they had any common object of eliminating the deceased. This
is more so as the evidence discloses that the accused-appellants, first
informant as well as the deceased did descend from a common ancestor and
that their grandfathers were real brothers. The evidence demonstrates
that the accused- appellants do not have any infamous criminal background
as well. The incident had occurred in the year 1982 and as on date, more
than three decades have passed.

(20) On a consideration of the totality of the circumstances attendant on
the case, we are of the opinion that the conviction of the appellants under
Section 304-Part 1 read with Sections 147,148,149 IPC, as recorded by the
High Court, is justified. However, in our view, having regard to the
singular facts and circumstances, we are inclined to reduce the sentence
for the offence under Section 304-Part I/149 IPC to rigorous imprisonment
for 7 years. The other sentences are hereby affirmed.

(21) The appeal is thus partly allowed with the above modifications. The
Trial Court would take the necessary follow up steps to ensure that the
appellants serve out the sentence as awarded.
………………………………………J.
(DIPAK MISRA)
……………………………………….J.
(AMITAVA ROY)

NEW DELHI;
NOVEMBER 28, 2016.