RAM AUTAR & ORS.versusSTATE OF U.P.

                              [2016) 7 S.C.R. 790



A                           RAM AUTAR & ORS.
                                        v.
                                STATE OF U.P.
                      (Criminal Appeal No. 1157 of2016)
B                           NOVEMBER 28, 2016
               [DIPAK MISRA AND AMITAVA ROY, JJ.)
          Penal Code, 1860: ss.304 Part-I, 147, 148 and 149 - Fatal
    attack - Prosecution case was that on the 111orning of the incident,
    the cattle of the victi111-deceased strayed into the field of the appellant
c   and destroyed the crop - Accused persons abused the deceased
    whereafter he herded back the cattle - Later when the deceased
    and co111plainant party were sitting in their compound, altercation
    took place between the deceased and accused persons who resided
    next door - On exhortation of other accused persons, appellant
D   brought gun and fired at the deceased and the other accused persons
    attacked him with lathis - Deceased died on the spot - Conviction
    of all accused persons u/s.302 - High Court 111odified conviction to
    one u/s.304 Part I - On appeal, held: The 111aterials on record
    suggested that the deceased also contributed to the escalating
    tensio11 and in the process the accused perso11s joi11tly u11leashed
E
    attack 011 him by lathis and also shot him - Jn the fact situation that
    developed in quick succession, there was as such no pre-meditation
    or prior concert 011 the part of the accused persons to com111it murder
    - The incident happened on the spur of the moment and in an
    uncontrollable, embittered and agitated state of e11rage111ent, thus
F   deprivi11g the accused persons of their power of self control - The
    evidence shows that the appellants did not have any infamous
    criminal background as well - Also the incident had occurred in
    1982 and 111ore than three decades ha11e passed - In totality of
    circumstances, conviction of appella11ts u/s.304-Part 1 rlw
    ss.147,148,149, as recorded by High Court, is justified - However,
G
    in view of facts and circu111stances, the sentence for the offence u/
    s.304-Part 11149 reduced to rigorous i111priso11111e111 for 7 years.
         Partly allowing the appeal, the Court
        HELD: 1. The evidence of the eye witnesses showed that
H   not only they have with noteworthy consistency and cohesion
                                       790
             RAM AUTAR & ORS. v. STATE OF U.P.                          791



authenticated the case of the prosecution in all material                A
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 doctor who performed post
mortem on the dead body (PW-5) reveals fire arm wounds on the
                                                                        B
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. This
witness also referred to lacerated/incised wounds and contusions
sustained by the appellants and the co-accused which, according          c
to the medical expert, were however simple in nature. The High
Court, noticing the injuries, which PW-5 had identified to be simple
in nature, did conclude, had been self inflicted in order to contrive
a defence. In view of the evidence available and the overall
scenario, this finding cannot be repudiated to be absurd or
                                                                        D
illogical. 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 co-accused 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           E
in their respective compounds, abutting each other. The
witnesses of the incident though, at the preliminary stages, did
advise the deceased tu 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
                                                                         F
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. [Paras 14, 15,
17, 18) (795-C-F; 796-B-E]                                               G
     4. In the fact situation that developed in quick succession,
there was as such no pre-meditation or prior concert on the part
of the accused persons to commit murder. The incident happened
on the spur of the moment and in an uncontrollable, embittered
and agitated state of enragement, thus depriving the accused             H
792            SUPREME COURT REPORTS                          [2016] 7 S.C.R.


A     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
B
      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. The conviction of the appellants under Section 304·Part 1
c     read with Sections 147,148,149 IPC, as recorded by the High
      Court, is justified. However, having regard to the singular facts
      and circumstances, the sentence for the offence under Section
      304-Part 11149 JPC is reduced to rigorous imprisonment for 7
      years. [Paras 19-20) [796-F-H; 797-A-B)
D         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 1'!o.
      1157of2016.
            From the Judgment and Order dated 10.06.2016 of the High Comt
      of Judicature at Allahabad in Criminal Appeal No. 958of1983.
           Dr. J. P. Dhanda, Ms. Raj Rani Dhanda, Vineet Dhanda, N. A.
E     lJsmani, Mohd. Shahid Hussain, Advs. for the Appellant.
           Ravi Prakash Mehrotra, V. S. Shukla, Vibhu Tiwari, Advs. for the
      Respondent.
           The Judgment of the Court was delivered by
F          AMITAVA ROY, J. I. Leave granted.
            2. The appellants hereby assail the affirmation of their conviction
      under Sections 147, 148, 149 Indian Penal Code (for sho1t, hereinafter to
      be referred to as "!PC") as recorded by the Trial Court. By the
      decision impugned, the High Court, however has altered their conviction
G     from one under Section 302 !PC to Section 304-Part I !PC. Thereby,
      the appellants now stand sentenced to undergo rigorous imprisonment
      for I 0 years and to pay a fine of Rs.5000/-, in default, to suffer simrte
      imprisonment for further two months for this offence. All sentences
      have been ordered to accrue concurrently.
H
              RAM AUTAR & ORS. v. STATE OF U.P.                               793
                     [AMITAVA ROY, J.)

     3. We have heard Dr. J.P. Dhanda, learned counsel for the appellants     A
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.                                                  B
      S. As the first information laid at 3.1 S p.m. on the same date would
reveal, in the morning thereof, the cattle of the deceased had strayed
into the fields ofSuraj 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                c
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- I 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             D
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 tired at Lalni. As Lalni fell, being injured, the other
accused persons joined in the assaults with lath is. The informant and         E
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 bdgement of the FIR with the police at about 3.1 S p.m.,
as herein before mentioned, case was registered under Sections
302, 147, 148 and 149 !PC. In course of the investigation, inquest on the      F
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.                     G

     7. The prosecution examined as many as six witnesses including
eye witnesses, namely; Gaya Prasad (PW-I.), Sitaram (PW-2), Ram
Sajeewan@ Dhunna (PW-4), besides Dr. S.C. Srivastava (PW-5) and
Brahm Dev Singh, Investigating Officer (PW-6).
                                                                               H
794             SUPREME COURT REPORTS                           [2016) 7 S.C.R.


A           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
B     and 149 !PC as mentioned therein. They were amongst others sentenced
      to undergo imprisonment for life for the offence under Section 302 !PC.
      They were sentenced as well for the other offences.
            10. As referred to hereinabove, the High Court in appeal sustained
      the conviction under Sections 14 7/148/149 !PC but moderated the
c     conviction under Section 302 !PC to one under Section 304-Part I and
      the sentence therefor was ordained to be rigorous imprisonment for I0
      years and fine of Rs.5000/-, in default, simple imprisonment for further
      two months.
              11. !he learned counsel for the appellants has assiduously argued
D      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, ifallowed to stand, would signify travesty ofjustice.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,
E      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
F      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
G     testimony of the eye witnesses, Gaya Prasad (PW- I), 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
H
              RAM AUTAR & ORS. v. STATE OF U.P.                                 795
                     rAMITAVA ROY, J.]

regard to the seriousness of the charges proved, the appellants have            A
been let off lightly with the substantive sentence often 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.        B
This notwithstanding, we have examined in particular, the evidence of
the eye witnesses Gaya Prasad (PW- I), 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.                                                                           c
       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              D
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.                                              E

      15. Noticeably this witness also referred to lacerated/incised wounds
and contusions sustained by the appellants Deo Munni, RamAutar and
the co-accused Suraj Bali which, according to the medical expert, were
however simple in nature.
                                                                                 F
       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            G
llic prosecution is, also corroborated by the blood stained earth collected
tht:refrom 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.
                                                                                H
796             SUPREME COURT REPORTS                           [2016] 7 S.C.R.



A           I 7. 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
B
      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.
c           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
D     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
E
      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 lath is 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
F     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
G     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
H
                RAM AUTAR & ORS. v. STATE OF U.P.                              797
                       [AMITAVA ROY, J.)

infamous criminal background as well. The incident had occurred in the         A
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 I read with Sections 147, 148, 149 IPC, as recorded.
by the High Court, is justified. However, in our view, having regard to        8
the singular facts and circumstances, we are inclined to reduce the
sentence for the offence under Section 304-Part 1/149 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        c
the appellants serve out the sentence as awarded.


Devika Gujral                                         Appeal partly allowed.