Ram Karan Arya vs State Of U.P.

(Per : Jai Krishna Upadhyay, J.)

Since these appeals (criminal appeal and government appeal) arise out of same case crime number, they have been heard together and are being decided by a common judgment and order. Criminal Appeal No. 2071 of 2017 is being treated as a leading case.

Heard Shri Daya Shankar Mishra, learned Senior Advocate assisted by Shri Chandra Kesh Mishra and Shri Sameer Srivastava, learned counsel for the appellant and Sri Manish Goyal, learned Additional Advocate General for the State assisted by Sri Rupak Chaubey, learned AGA. Sri Karunesh Pratap Singh, Advocate was heard for the informant.

The trial against accused persons Ram Karan Arya, Ram Ujagir, Om Prakash, and Usman alias Yusuf for offences under Sections 147, 148, 149, 302, 504, 506 IPC was committed in Sessions Case No. 91 of 1995 and against accused persons Amarchand, Santram, Sundar and Banarasi Prasad for offences under Sections 147, 148, 149, 302, 504, 506 IPC was committed in Sessions Case No. 38 of 2009 to the Sessions Court by the then Chief Judicial Magistrate, Basti. During the trial, accused Sundar passed away, and proceedings against him was abated. Both the trials were consolidated and decided by a common judgment by the trial court.

The validity and sustainability of the judgment and order dated 10.4.2017 passed by the Sessions Judge, Basti in Sessions Trial No.91 of 1995 (State Vs. Ram Karan Arya and others) arising out of Case Crime No. 857 of 1994 under Sections 147, 148, 149, 302, 504, 506 IPC, Police Station Kotwali, District Basti has been challenged by way of instant criminal appeal whereby the appellant Ram Karan Arya was convicted and sentenced to undergo imprisonment for life under Section 302 IPC with a fine of Rs. 20 ,000/-, to undergo one year rigorous imprisonment under Section 504 IPC with a fine of Rs. 1,000/- and to undergo three years rigorous imprisonment under Section 506 IPC with a fine of Rs. 2,000/-.

All sentences were directed to run concurrently with default clause.

The aforesaid Government Appeal has been filed on behalf of the State challenging the aforesaid impugned judgment and order dated 10.4.2017 whereby the accused Ram Ujagir, Om Prakash, Usman @ Yusuf, Amarchand, Santram, Ram Pyare, Constable A.P. 88 Rupendra Kujur and Banarsi Prasad had been acquitted of the charges.

The prosecution story, in brief, as unfolded by the informant Jaibaks Pal son of Ompal, resident of Village Bharwaliya, Police Station Lalganj, District Basti in the First Information Report (in short 'FIR') is that the informant's cousin brother Shambhu Sharan Pal was driving his Jeep No. U.R.Y.-1640. On 23.11.1994 at around 12:00 noon, they along with Shambhu Sharan were going to attend a farmer assembly organized by Sadar MLA Jagdambika Pal at Walterganj. When they stopped their vehicle on the left side in front of Dinesh Pal's flour mill (chakki) at Tehsil Colony before the gate of Awas Vikas, MLA Nagar Purv Ram Karan Arya coming from behind in his Jeep No. 84B/31288N came in front and stopped his jeep. Along with him, Om Prakash, Santram, Ram Ujagir, Amar Chand and three-four other shadows Rampyare etc., armed with weapons, got down and surrounded Shambhu Sharan's jeep. Ram Karan Arya abused Shambhu Sharan and said, "You bloody Congressman, driving the vehicle with a flag and writing 'Pal' on it and hitting my vehicle, have you lost your mind, why did you hit my vehicle ?" Shambhu Pal also uttered some harsh words, whereupon Ram Karan became extremely angry and said, "Kill the bloody fool," and himself snatched a gun from his companion and aimed it. Santram, Rampyare, etc., surrounded with their weapons and with intention to kill, MLA Ram Karan Arya fired a shot, due to which Shambhu Sharan fell down bleeding profusely. When they tried to save him, the accused threatened to shoot them and brandishing their respective weapons went away towards the west while abusing and threatening. They took Shambhu Sharan to the Sadar Hospital but the doctor declared him dead. The incident was witnessed by Satyawan etc.

On the basis of the written complaint Ext. Ka-1, on the same day at 1:10 p.m. at Police Station Kotwali Basti, chik FIR Ext. Ka-3 was registered against the accused as Crime No. 857 of 1994 under Sections 147, 148, 149, 302/34, 504, 506 IPC. G.D. entry was also made on the same day and the carbon copy whereof is Ext. Ka-5.

Investigation of the case was initially handed over to Sub-Inspector Shrikant Singh. He recorded the statement of the informant and prepared the Inquest Report (Panchayatnama) of the deceased. At the time of inquest, a blood-stained 12 bore wad (tikuli) was recovered from the wound on the right side of the deceased's neck, a memo whereof was prepared and the wad was sealed. Apart from this, Photo lash, letter to District Magistrate, letter to Chief Medical Officer, Basti and Police Form No. 13 for R.I. were prepared. The body was sealed, sample seal was prepared and sent for postmortem along with all papers.

Postmortem on the body of deceased Shambhu Sharan Pal was conducted on 23.11.1994 by Dr. S.S. Dwivedi, Medical Officer, District Hospital Basti, and Dr. G.C. Singh Arora, T.B. Clinic Basti, and Postmortem Report Ext. Ka-2 was prepared.

On 23.11.1994 itself the Investigating Officer arrested accused Ram Ujagir and Om Prakash from District Hospital Basti, recorded their statements, recovered Jeep No. 84B/31288N and prepared its memo. On the same day, he went to the spot along with the Inspector In-charge, where the informant was also met and upon pointing out of the informant and in the presence of Inspector In-charge, inspected the spot and prepared site plan Ext. Ka-14. He took into possession blood-stained soil and simple soil from the spot, sealed them in separate boxes and prepared memo Ext. Ka-15. Thereafter, investigation of the case was taken over by Inspector In-charge Pawan Kumar Singh himself. On 24.11.1994, he arrested accused Ram Karan Arya in Utraula, District Gonda. He verified the statement of the informant and recorded the statements of witnesses Rakesh Chandra @ Parmeshwar Pal, Satyawan, Shatrughan Pal and Bhawani Pal and prepared site plan Ext. Ka-18 of recovery of the vehicle Jeep No. 84B/31288N used in the murder. He recovered the gun used in murder along with nine live cartridges and one empty cartridge, prepared recovery memo Ext. Ka-20 and also site plan Ext. Ka-19 of the place of recovery. The Investigating Officer recorded statements of other witnesses and completed investigative work. On 26.12.1996 submitted Charge Sheet Ext. Ka-24. Cognizance was taken by the court having jurisdiction upon the charge sheets submitted against the accused. The case of Ram Karan, Om Prakash and Ram Ujagir was committed to the Sessions Court on the basis of which Sessions Trial No. 91 of 1995 was registered. The case of accused Amarchand, Ram Pyare Prasad, Const. A.P. 88 Rupendra, Const. A.P. 26 Sundar, Const. A.P. 185 Banarasi Prasad was committed to the Sessions Court by the order dated 11.2.2009 of the then Chief Judicial Magistrate, on the basis of which Sessions Trial No. 38/2009 was registered.

Accused appeared before the Sessions Court. In Sessions Trial No. 91 of 1995, charges were framed against accused Ram Karan Arya on 09.01.2007 under Sections 148, 302, 504, 506 IPC, against accused Ram Ujagir and Usman on 09.01.2007 and against accused Om Prakash on 12.02.2007 under Sections 147, 302/149, 504, 506 IPC and against accused Ram Ujagir, Usman and Om Prakash on 24.09.2014 under Section 148 IPC. Accused persons denied the charges and claimed their trial.

To bring home the charges against the accused, the prosecution produced in all ten witnesses in oral evidence. They are P.W.-1 Jaibaks Pal (Informant), P.W.-2 Parmeshwar Pal, P.W.-3 Satyawan Pal, P.W.-4 Om Prakash Singh, P.W.-5 Dr. S.S. Dwivedi, P.W.-6 Head Constable. Kapildev, P.W.-7 Vishwanath Tiwari, P.W.-8 Sub-Inspector Shrikant Singh, P.W.-9 Inspector Brijmohan and P.W.-10 Inspector Pawan Kumar.

In documentary evidence, Ext. Ka-1 to Ext. Ka-24 were proved.

The incriminating evidence and circumstances were put to the accused persons under Section 313 Cr.P.C. wherein they claimed the entire prosecution evidence as false and fabricated and stated that they were falsely implicated due to political rivalry, witnesses gave false statements. Accused Ram Karan Arya stated that because he belongs to Dalit community and fights for them, the then MLA Sadar Basti Jagdambika Pal harbored malice, due to which he was falsely implicated.

In defence, D.W.-1 Imtiyaz, D.W.-2 Mehdi Hasan, D.W.-3 Hasan Mohammad, D.W.-4 Anil Singh, D.W.-5 Ashutosh Kumar Shukla, and D.W.-6 Major S.B. Singh, Commander Vehicle and Depot Chhewoki Allahabad were produced and examined.

P.W.-1 Jaibaks Pal (Informant) stated that he along with Shambhu Sharan Pal, Satyawan Pal, Gudhun alias Parmeshwar Pal were coming in Jeep No. U.R.Y.-1640 to participate in Jagdambika Pal's rally in Walterganj. The jeep belonged to Shambhu Sharan Pal, which was driving by himself. When they reached near the Awas Vikas intersection between the saw mill and Ashok Shukla's house, MLA Ram Karan Arya's vehicle was seen coming at high speed from the direction of Company Bagh intersection. Ram Karan suddenly stopped his vehicle right in front of Shambhu Sharan Pal's jeep. Shambhu Sharan Pal also applied brakes to stop his vehicle suddenly but his jeep's brakes failed, due to which the corner of the front bumper of his jeep collided with Ram Karan Arya's jeep. At this, all the occupants in the vehicle, namely, Ram Karan Arya, his driver Om Prakash, Ram Ujagir, Usman, Amarchand, gunner Rampyare and three policemen got down in anger and hurling abuses said why did he hit his vehicle. On this, Shambhu Sharan Pal folded his hands and said MLA Ji, please do not abuse. Due to brake failure of the jeep, the vehicle collided. He did not hit it intentionally. Whatever damage is done to the jeep, he will get it repaired. At that time, Shambhu Sharan Pal was sitting in his jeep itself. After that, Ram Karan Arya became very angry and said "Bring a gun, let's shoot the bloody fool." After this, Shambhu Sharan Pal got down from the jeep and stood leaning against the jeep. He again folded his hands and said, "MLA Ji, a mistake has happened, please forgive me." Just then, Ram Karan Arya snatched a gun from his companion Ram Ujagir and fired at Shambhu Sharan Pal, due to which the gun's bullet struck the right side of Shambhu Sharan Pal's neck and he fell on the road. They shouted to save Shambhu Sharan Pal and tried to catch Ram Karan Arya, whereupon his companions brandishing their weapons, left in their jeep towards Katra. Meanwhile, Bhawani Pal, Advocate arrived at the spot. This incident was seen by Anil Singh, Shatrughan Pal, Sukhsagar Upadhyay, Santram, Ramji Singh, Om Prakash Singh, Shakeel, etc. but due to fear of the accused, no one stepped forward. He and Bhawani Pal stopped a jeep and brought Shambhu Pal to Sadar Hospital, Basti, where doctors declared him dead.

P.W.-2 Parmeshwar Pal @ Gudhun stated that the incident occurred about 13-14 years ago. On the day of the incident, he came to Basti on Shambhu Sharan Pal's Jeep No. U.R.Y.-1640 along with Jaibaks Pal, Satyawan Pal and Shambhu Sharan to participate in Jagdambika Pal's rally. There was some defect in the steering of Shambhu Sharan Pal's jeep, which was repaired after stopping at Roadways intersection. When they reached in front of the saw mill located beside Ashok Shukla's house, MLA Ram Karan Arya's jeep came at very high speed from Company Bagh towards Katra. Suddenly, Ram Karan Arya's jeep stopped right in front of their jeep. Shambhu Sharan Pal wanted to apply brakes suddenly at that time but his brakes failed and the front bumper of his jeep collided from behind into Ram Karan Arya's jeep. At this, Ram Karan Arya and the people with him got down from their jeep and started hurling abuses, whereupon Shambhu Sharan Pal asked them not to abuse. In Ram Karan's jeep, his policemen were seated. Along with Ram Karan Arya, Ram Ujagir, Om Prakash, Usman, Santram, Amar Singh, Pyare Lal and three others were present. On this, Shambhu Sharan Pal said that he did not hit the vehicle intentionally rather his vehicle's brakes failed and requested not to abuse and take whatever damage had occurred. Immediately after this, Ram Karan Arya flew into a rage, at which point Shambhu Sharan Pal got down from his jeep and stood beside the jeep. Just then, Ram Karan Arya said to Ram Ujagir standing beside him, "Bring the gun, let's shoot the bloody fool." Thereafter, all at once Ram Karan Arya took the gun from Ram Ujagir and, in anger, fired from the gun at the right side of Shambhu Sharan Pal's neck. They rushed to save him, whereupon Ram Karan Arya and his companions, extending threat to kill, fled towards Katra. At the same time, Bhawani Pal, Advocate arrived at the spot. Shambhu Sharan Pal was taken to Sadar Hospital, Basti by Bhawani Pal, Jaibaks Pal, Satyawan Pal and PW-2, where the doctor examined him and declared him dead.

P.W.-3 Satyawan Pal stated that on the day of the incident, he along with Jaibaks Pal, Parmeshwar Pal was going with Shambhu Sharan Pal in his jeep to attend Jagdambika Pal's rally. He further stated that they had left their home at around 9.00 a.m. After reaching Basti, near Roadways, the steering of the said jeep was repaired. Thereafter, they went to Jagdambika Pal's residence in Rameshwarpuri locality, but found no one there. They had left from there at around 11.30 AM. He also states that when they reached in front of the saw mill located beside Ashok Shukla's house, they had stopped there for 5-10 minutes and after that they were going to Walterganj in the same jeep and just then Ram Karan Arya was going in his jeep from Company Bagh towards Katra. His jeep suddenly stopped in front of their jeep, so their jeep collided with it. A little damage was caused to the rear part of Ram Karan Arya's jeep. Ram Karan got down from the jeep and started abusing to Shambhu Pal, thereupon, Shambhu Pal asked him not to abuse. Along with Ram Karan, Ram Ujagir, Amarchand, Usman, Santram, Om Prakash, Rampyare were also seated in his jeep. Besides them, three constables were also seated. Shambhu Pal said do not abuse, whatever damage he sustained, he will get it repaired. He did not commit a mistake intentionally. After this, Ram Karan flew into a rage and suddenly snatched the gun from Ram Ujagir's hand and fired a shot with it, which struck the collarbone (clavicle) of Shambhu Sharan Pal's neck. They attempted to save him, whereupon Ram Karan abused and said that whoever steps forward will be shot. After this, those people fled towards Katra in their jeep while abusing. At the same time, Bhawani Pal Advocate, Anil Singh, Shatrughan Pal, and other people arrived at the spot. They loaded Shambhu Sharan Pal into a jeep and took him to Sadar Hospital, Basti, where the doctor examined him and declared him dead.

P.W.-4 Om Prakash Singh stated that the incident occurred on 23.11.1994 at 12:00 noon. They had come to Basti at Company Bagh intersection for personal work. At the time of the incident, he was coming from Company Bagh towards Katra. As soon as he reached in front of Awas Vikas and the saw mill, he saw that Ram Karan Ji's vehicle came and stopped and from behind came Shambhu Sharan Pal's jeep, which, while trying to avoid, collided into Ram Karan's vehicle. Shambhu Sharan Pal was driving himself and Jaibaks Pal, Satyawan, Parmeshwar Pal were also seated in his vehicle. In Ram Karan's vehicle Ram Karan, Santram, Ram Ujagir, Amarchand, and Usman, along with their driver Om Prakash, gunner Rampyare, and three more constables were seated. After the vehicles collided, Ram Karan and the people seated in his vehicle surrounded Shambhu Sharan Pal's vehicle, started abusing, and said, "Putting a Congress flag and having written 'Pal' on the vehicle, you move around, have you lost your mind ?" Shambhu Sharan Pal got down from his vehicle, stood leaning against it and said, "MLA Ji, I did not hit intentionally; whatever damage is done, I will get it repaired." At this, Ram Karan Arya became extremely enraged, on the spur of moment snatched the gun from Ram Ujagir and fired at Shambhu Sharan Pal. Shambhu Sharan Pal fell down. Ram Karan Arya and his companions fled while brandishing guns and weapons.

P.W.-5 Dr. S.S. Dwivedi, Medical Officer, District Hospital, Basti stated that on 23.11.1994 he and Dr. G.C. Singh Arora, Medical Officer at T.B. Clinic, Basti conducted the postmortem of the body of deceased Shambhu Sharan Pal at 8:00 PM in the evening, which was brought by Constable Narsingh Ojha and Constable Hariram Mishra. The age of the deceased was about 35 years. The deceased was a young man of average built/physique. His death had occurred half a day prior. During examination, he found following ante-mortem injuries on his body :

P.W.-6 Head Constable Kapildev stated that on the basis of written complaint of Jaibaks Pal, Crime Case No. 857 of 1994 under Sections 147, 148, 149, 302/34, 504, 506 IPC was registered against Ram Karan Arya, Om Prakash, Deen Dayal, Ram Ujagir, Amar, Usman and three-four others including Rampyare. He also proved the G.D. entry.

P.W.-7 Vishwanath Tiwari stated that the incident occurred on 23.11.1994 at 12:00 noon. On that day, he had gone to Basti to get medicine for his mother and after taking medicine from Company Bagh, Police Station Kotwali, was returning towards Awas Vikas and as soon as he reached near the saw mill before Awas Vikas intersection, he saw MLA Ram Karan Arya's jeep coming at high speed from Company Bagh, which suddenly stopped in front of the saw mill and from behind, Shambhu Pal's jeep also came and while attempting to stop, struck from behind. In Ram Karan's jeep were seated Ram Karan, Santram, Ram Ujagir, Amarchand, Usman, their gunner Rampyare and driver Om Prakash were also present. In Shambhu Pal's jeep were seated Satyawan Pal, Jaibaks Pal, and Parmeshwar Pal. When Shambhu Pal's jeep struck Ram Karan Arya's jeep from behind, all the people got down from Ram Karan's jeep and surrounded Shambhu Pal's jeep and Ram Karan stated some harsh words to him. On this, Shambhu Pal said that he did not hit the vehicle intentionally and whatever damage was caused, he would get it repaired. Upon this, his companions said that the MLA Ji should not let him go, kill the bloody fool. On this, MLA Ram Karan took the gun from the hands of Ram Ujagir and all at once shot Shambhu Pal. Shambhu Pal fell down right there.

P.W.-8 Retired Sub-Inspector Shrikant Singh, first Investigating Officer proved the investigation proceedings.

P.W.-9 Brijendra Mohan Pandey, Retired Inspector, stated that on 26.12.1994 he was posted as Inspector in C.B.C.I.D. Gorakhpur. The investigation of Crime Case No. 857 of 1994 under Sections 147, 148, 149, 302/34, 504, 506 IPC, District Basti, was received by order of the Officer, Crime Branch, Crime Investigation Department, Gorakhpur. He also proved the investigation proceedings.

P.W.-10 Pawan Kumar Singh stated that on 23.11.1994, he had taken over the investigation of this case. He also proved the investigation proceedings. He identified the said DBBL 12-bore gun, cartridges and raincoat.

As mentioned here-in-above, in defence evidence, D.W.-1 Imtiyaz, D.W.-2 Mehdi Hasan, D.W.-3 Hasan Mohammad, D.W.-4 Anil Singh, D.W.-5 Ashutosh Kumar Shukla, and D.W.-6 Major S.B. Singh, Commander Vehicle and Depot Chhewoki Allahabad were produced and examined.

D.W.-1 Imtiyaz stated in his statement that he knows accused Usman, he belongs to his Nyaya Panchayat and his house is in his village. Assembly election took place in 1993 Jagdambika Pal's brother Bhawani Pal, lawyer, was pressuring Usman to campaign in his favor. Usman had said that he has nothing to do with politics and refused to campaign, due to which he became angry. About 13 years ago in the month of November, at Usman's door, a panchayat was held regarding a dispute between two village men, Imtiyaz and Mehdi, over cattle grazing mustard and wheat field. Usman had called them and said that instead of going to police station, settle it through panchayat. He was also present in panchayat. This panchayat went on from 2:00 PM to 3:30 PM. At that time on that day, Usman conducted the panchayat. Later it came to be known that regarding the incident of the same day, Bhawani Pal registered a case against Usman related to their village.

D.W.-2 Mehdi Hasan has stated that Usman is from his village. He is an old respectable person and also Pradhan of the village. It was month of November, a fight had occurred between him and Imtiyaz at that time because his goats had eaten his wheat field leading to mutual brawl, regarding which panchayat was called between him and Imtiyaz on 23.11.1994 at Usman's house. On that day, he went to Usman's house around 8-9 AM. Opposing party also came. Panchayat went on till about 3:30 PM. In panchayat, Usman decided that no party will file a case and Imtiyaz should pay for his loss, but he did not take it. Thereafter they went to their respective houses. On that day from morning 8-9 AM till 3:30 PM, Usman was present at his home. Later came to know that Usman has been falsely implicated in a false murder case.

D.W.-3 Hasan Mohammad has stated that it must be more than 13 and a half years since incident occurred, time was 12:00 noon. He was going from Company Bagh towards his village on his left side. When he moved a little ahead from Gandhi Kala Niketan intersection, he saw 4-5 people arguing heatedly amongst themselves. One amongst them shot another. After staying there for a short while, he went to his village. MLA Ram Karan Arya was MLA of his area and he knows him very well.

D.W.-4 Anil Singh stated that it has been 13 and a half years since incident occurred, time was around 12:00 noon. At that time, he was going on foot from Company Bagh side to his room in Awas Vikas. When he moved ahead from Gandhi Kala Bhawan intersection, 5-6 people were arguing heatedly amongst themselves. Out of those 5-6 people, someone shot Shambhu Sharan Pal. He further states that his assembly constituency is Nagar Purv. Since Ram Karan Arya had been MLA from his assembly constituency several times, he recognized him. MLA Ram Karan Arya was not amongst those 5-6 people, who were arguing.

D.W.-5 Ashutosh Kumar Shukla, A.R.T.O. Basti, stated as per records in his office, vehicle No. UP 51A-4995 is registered in his office on 17.04.1995 in the name of Ram Karan Arya MLA, resident of Vikas Bhawan, District Basti. Fitness of this vehicle is recorded as valid up to 16.04.2010, in which seating capacity of vehicle is four persons including driver.

D.W.-6 Major S.B. Singh, Commander Vehicle and Depot, C.O.D. Chhewoki, Allahabad, stated that he appeared upon court summons. As per vehicle register of his office, vehicle No. B.A. 84-31288N was sold to Ram Karan Arya, Legislative Assembly Secretariat Lucknow, Uttar Pradesh on 06.07.1984.

In Sessions Trial No. 38 of 2009, on behalf of prosecution, P.W.-1 Jaibaks Pal, P.W.-2 Gudun alias Parmeshwar Pal, P.W.-3 Vishwanath Tiwari, P.W.-4 Satyawan Pal, P.W.-5 Om Prakash Singh, P.W.-6 Dr. S.S. Dwivedi, P.W.-7 Head Const. Kapildev Singh, P.W.-8 Pawan Kumar Singh, P.W.-9 Retired Sub-Inspector Shrikant Singh, P.W.-10 Retired Inspector Brijendra Mohan Pandey and P.W.-11 Retired Inspector C.B. C.I.D. Uday Pratap Singh were examined and they stated almost the same facts / version as in Session Trial No. 91 of 1995 and supported the prosecution case.

Statements of accused in Sessions Trial No. 38 of 2009 State vs. Amarchand etc. were recorded under Section 313 Cr.P.C. They stated the prosecution story false, witnesses gave false statements and claimed case was initiated on the basis of enmity by preparing false documents. Accused Santram stated that deceased Shambhu Pal was nephew of MLA Jagdambika Pal, under whose pressure false case was registered out of political rivalry. Jagdambika Pal is currently a Member of Parliament. Accused Ram Pyare stated that he was gunner of Ram Karan Arya. He was not involved in any incident and was falsely implicated merely due to being a gunner. Accused Rupendra Kujur and Banarasi Prasad stated that their duty was deployed in security of the then MLA Ram Karan Arya. They were not involved in any incident. They have been falsely implicated due to being security personnel.

In defence evidence, D.W.-1 Anil Agarwal, Inspector General of Police and D.W.-2 Devdutt were produced.

D.W.-1 Anil Agarwal, Inspector General of Police, who subsequently, was Member Secretary U.P. Police Recruitment Board Lucknow, stated that on 23.11.1994, he was present in an official meeting with District Magistrate, Basti at Inspection House around 12:00 noon. On the same day at about 12:30 PM, information was received that a person was shot near Gandhi Kala Niketan. On the said information, he reached the spot. Then MLA Jagdambika Pal was also present in meeting at Inspection House and he also reached the spot. Huge crowd was present on the spot. There it was stated that MLA Mr. Pal's nephew Shambhu Sharan was going in his Jeep No. U.R.Y.-1640 and due to brake failure his vehicle collided into vehicle of MLA Nagar Purv Ram Karan Arya going ahead of him. After this accident, MLA Ram Karan Arya's shadow shot, as a result of which Mr. Shambhu Sharan Pal died on the spot. Body of deceased was dispatched to District Hospital by police officers who arrived earlier. After some time, he reached District Hospital. District Magistrate, Basti was also there. They saw body of deceased kept on main highway outside District Hospital. After some time, crowd present outside hospital proceeded with body of deceased towards main market. For maintaining law and order, District Magistrate and Additional Superintendent of Police present there repeatedly requested MLA Mr. Pal not to take out procession with body of deceased but it had no effect. The said officers again requested not to take out procession, whereupon they agreed to condition that they will not take out procession but body will be taken on foot by deceased's relatives from District Hospital to Postmortem House in Police Lines. Considering gravity of situation, necessary police force and Magistrates were deployed. After some time, MLA Mr. Pal started dharna along with crowd by keeping body at Company Bagh intersection, then after assurance of impartial and effective action by the District Magistrate and him, dharna ended. Postmortem of body was conducted during night itself and body handed over to relatives.

D.W.-2 Devdutt stated in his statement that on 24.11.1994 he was working as District Magistrate, Basti and sent a joint report along with Superintendent of Police Basti on 24.11.1994.

The learned trial court upon scrutiny of the evidence on record concluded that the case of prosecution was proved beyond reasonable doubt against the accused Ram Karan Arya and recorded conviction and sentenced him, as mentioned here-in-above, but acquitted the accused Ram Ujagir, Om Prakash, Usman @ Yusuf, Amarchand, Santram, Ram Pyare, Constable A.P. 88 Rupendra Kujur and Banarsi Prasad. Hence, the aforesaid criminal appeal by the convicted appellant Ram Karan Arya and the government appeal on behalf of the State against acquittal order have been filed.

Assailing the impugned judgment and order on various grounds, learned Senior Counsel appearing for the appellant Ram Karan Arya submitted that the prosecution has not proved its case beyond reasonable doubt. It is further submitted that the FIR is ante-timed. There are material contradictions in the statements of prosecution witnesses, which shake the root of the prosecution case. He further submits that there is no independent witness of the recovery of gun of Ram Karan Arya. No test identification parade was conducted. It is also submitted that the medical report does not support the prosecution version. It has further been submitted that lodging the FIR at 1:10 PM is also doubtful because perusal of the inquest report reveals overwriting on the case crime number and sections and no name of any accused or weapon used is mentioned in the inquest report. He further submits that in compliance of the provisions of Section 157 Cr.P.C. the FIR was sent to the concerned Magistrate belatedly. It has also been submitted that prosecution witnesses have stated that they loaded the deceased Shambhu Sharan into a jeep from the spot and reached Sadar Hospital, Basti and blood was oozing from the body of Shambhu Sharan Pal and blood had also fallen on the ground, but blood was not found smeared on the clothes of any witness nor did any witness state that blood got onto their body/clothes while loading the deceased. Absence of blood on the hands or clothes of the witnesses indicates that the witnesses were not present on the spot at the time of the incident and their statements are untrustworthy. Still further he submits that in the present case the place of occurrence is also not fixed as per the prosecution witnesses and the place of occurrence is doubtful. It is also submitted that nature of injuries stated by the prosecution to have been sustained by the deceased could not have been caused in the manner described by the prosecution. There is extreme contradiction between the injuries caused by firearm and the statements of witnesses. It is next contended that the prosecution alleged ten persons arrived on the spot seated in the said jeep which is impossible and renders the prosecution narrative doubtful. He further submits that the investigation of the case was not conducted impartially. It is also submitted that the incident occurred on sudden provocation and the case was concocted due to political rivalry. The conclusion arrived at by the trial court is not based on credible evidence. It has been additionally submitted that if, for the sake of argument, it is assumed that appellant had committed the offence, in that case also no offence under Section 302 IPC was made out against the appellant as in the heat of passion upon a sudden quarrel the appellant had caused injuries on the deceased and had no pre-meditation to commit murder of the deceased. Therefore, at the most the case could travel up to the limits of offence under Section 304 IPC. It has further been submitted that appellant Ram Karan Arya had served out more than 9 years and 6 months sentence. The findings recorded by trial court in the impugned judgment and order are also not based on correct appreciation of facts and evidence and impugned judgment and order suffer from infirmity and illegality warranting interference by this Court. Lastly, it is submitted that since the offence was not committed in furtherance of common object, the co-accused persons have rightly been acquitted by the trial court. Also it was submitted that when a few of the accused were acquitted then definitely charge as under Section 147 and 149 of the IPC could not have been established by the trial Court.

Per contra, learned counsel for the informant and the learned Additional Advocate General appearing for the State of U.P. have vehemently opposed the submissions made by the learned Senior Counsel appearing for the appellant. He submitted that the prosecution witnesses had no reason to depose falsely before the court intending false implication of the appellant. Statements of eyewitnesses regarding commission of the crime by the appellant and co-accused are consistent and they have supported the prosecution case. All witnesses examined by prosecution also supported place of occurrence and there is no contradiction in this regard. Appellant had strong motive to commit the crime. All the accused in furtherance of common object forming an unlawful assembly murdered the deceased. There is no material fault or discrepancy in the investigation. The prosecution case is also corroborated by the medical evidence. F.I.R. is a genuine one. The prosecution story is proved by cogent and reliable oral and documentary evidence. Findings recorded by trial court in the impugned judgment and order are not based on correct appreciation of facts, evidence and law and suffer from any infirmity or illegality warranting interference by this Court. Hence, the appeal is liable to be dismissed. So far as the acquittal of co-accused is concerned, learned Additional Advocate General has supported the government appeal and submitted that the trial court committed an error of ignoring the statement of the occular witnesses. They deposed that the deceased had been murdered by the appellant Ram Karan Arya and the co-accused persons had also played active role in commission of the crime.

We have considered rival submissions made by learned counsel for parties and have gone through the entire record including the impugned judgment and order carefully.

In the present case, it has been mentioned in the FIR that on the day of the incident, deceased Shambhu Sharan Pal along with prosecution witnesses was going in a jeep to Walterganj to attend a rally organized by Sadar MLA Jagdambika Pal and when they stopped the vehicle in front of Dinesh Pal's quarter before the Awas Vikas gate, MLA Nagar Purv Ram Karan Arya coming from the front stopped his jeep. Ram Karan Arya abused Shambhu Sharan and said, "Putting a Congress flag and driving the vehicle, you hit my jeep; why did you hit my vehicle?" Shambhu Sharan Pal also uttered some harsh words, whereupon Ram Karan Arya became angry and on a spur of moment fired at Shambhu Sharan, due to which Shambhu Sharan Pal fell down bleeding. The accused left in their vehicle while abusing and threatening.

According to informant Jaibaks Pal - P.W.-1 on the day of the incident he along with Satyawan Pal and Parmeshwar Pal @ Gudun was going from his home in Shambhu Sharan's jeep to Walterganj for a rally organized by Jagdambika Pal. Shambhu Sharan Pal was driving the vehicle. When at around 12:00 noon they reached near Dinesh Pal's house between the saw mill and Ashok Shukla's house at Awas Vikas intersection, MLA Ram Karan Arya suddenly arrived there in his jeep and stopped his jeep in front of Shambhu Sharan's jeep. Shambhu Sharan also applied brakes to stop his jeep but the corner of the jeep collided into Ram Karan Arya's jeep. On this, all persons sitting in Ram Karan Arya's jeep including Ram Karan Arya, Ram Ujagir, Om Prakash, Usman, Amar, Rampyare, and three-four other shadows got down and surrounded Shambhu Sharan's jeep. Ram Karan abused Shambhu Sharan and said, "Have you lost your mind, moving around with a Congress flag, why did you hit my vehicle ?" On this, Shambhu Sharan said, "The vehicle's brakes failed, I did not hit intentionally, whatever damage occurred to the vehicle, I will get it repaired." On this, Ram Karan Arya said, "He has lost his mind, bring a gun, let's shoot him." Ram Karan Arya snatched the gun from his companion Ram Ujagir and shot Shambhu Sharan. The bullet struck the right side of Shambhu Sharan's neck due to which he fell on the ground. Remaining accused Ram Ujagir, Usman, Santram, Amarchand, Rampyare, three constables and Om Prakash got down and surrounded the jeep from all sides. All had weapons in hand. During that time, when an attempt was made to save Shambhu Sharan Pal, all accused said that if anyone steps forward, they would kill them too. This witness stated during cross-examination in Ram Karan Arya's Sessions Case that this incident was witnessed on the spot by Anil Singh, Shatrughan Pal, Sukhsagar Upadhyay, Santram, Ramji Singh and Om Prakash Singh present there but due to fear of the accused no one stepped forward. Regarding the said incident stated by the informant, the FIR was lodged by this witness at Police Station Kotwali, Basti, which is Ext. Ka-1.

The other witnesses examined by the prosecution, namely, Parmeshwar Pal @ Gudun (P.W.-2), Satyawan Pal (P.W.-3), Om Prakash Singh (P.W.-4), and Vishwanath Tiwari (P.W.-7) stated in their depositions that the incident occurred on 23.11.1994 at 12:00 noon. Witness Parmeshwar Pal alias Gudun (P.W.-2) and Satyawan Pal (P.W.-3) stated that at the time of the incident, they were also traveling in Shambhu Sharan's jeep to participate in the rally organized by Jagdambika Pal. These witnesses also stated that upon colliding into Ram Karan Arya's jeep near the saw mill located near Ashok Shukla's house, Ram Karan Arya and others got down from the jeep and came forward hurling abuses at Shambhu Sharan Pal. When Shambhu Sharan Pal asked them not to abuse, Ram Karan flew into a rage and Shambhu Sharan Pal, who had gotten down from the jeep and stood beside it, was shot by Ram Karan Arya after taking a gun from Ram Ujagir, firing at the right side of Shambhu Sharan Pal's neck in rage. These witnesses also stated that other persons including Bhawani Pal, Anil Singh, Shatrughan Pal, Sukhsagar Upadhyay, Om Prakash Singh and others, arrived at the spot of occurrence. Witness Om Prakash Singh (P.W.-4) stated his presence on the spot saying that he came to Company Bagh intersection for personal work and was coming from Company Bagh towards Katra at the time of the incident. As soon as he reached in front of the saw mill near Awas Vikas intersection, he witnessed the incident. This witness stated that the incident occurred on 23.11.1994 at 12:00 noon, matching the sequence described by other witnesses. Similarly, witness Vishwanath Tiwari (P.W.-7) clarified his presence on the spot stating that on that day he came to Basti to purchase medicine for his mother and after purchasing medicine from Company Bagh, Police Station Kotwali, Basti, was returning towards Awas Vikas. Before Awas Vikas intersection near the saw mill, he witnessed the incident and described the incident as having been committed according to the sequence stated by other prosecution witnesses. The above factual witnesses were also examined in Sessions Trial No. 38 of 2009.

Upon perusal of the statements of the above witnesses, it is evident that these witnesses have stated that the incident occurred on 23.11.1994 at 12:00 noon. Regarding the spot / place of occurrence, it has come in the statements of these witnesses that near Awas Vikas intersection, near the saw mill and Ashok Shukla's house, a dispute arose upon the collision of jeeps, whereupon accused Ram Karan Arya caused injury to Shambhu Sharan's neck by firing a gun. According to the witnesses, upon being taken to the hospital, he was declared dead. The incident is stated to have occurred at 12:00 noon and the FIR of the present case was registered on the same day at 1.10 p.m. at Police Station Kotwali, Basti. According to the chick report, the distance from the spot of occurrence to the police station is shown as four kilometers. There is no delay whatsoever in lodging the FIR. The names of all accused involved in the incident are mentioned in the FIR. A perusal of the statements of the informant and other witnesses reveals that after sustaining firearm injury, Shambhu Sharan Pal was loaded into a jeep and taken to the hospital where he was declared dead. The persons present on the spot at the time of the incident were relatives of Shambhu Sharan Pal and upon injury, the primary endeavor of the relatives was to provide medical facility to him. In the situation, after an incident where a close relative is injured, even in case of death, the effort remains to take the injured quickly to the nearest hospital and an attempt was made by the witnesses to take the deceased to the hospital, which is a natural process. According to informant Jaibaks Pal, when Shambhu Sharan Pal was declared dead at the hospital, his body was placed in the hospital mortuary at 12:35 PM or 1:40 PM. Thereafter, he came outside the hospital and wrote the FIR of the incident. In his cross-examination, this witness stated that he wrote the written complaint at the Sonupar intersection and at that time Bhawani Pal was inside the hospital. He did not inform him about writing the complaint. No one else was with him and he did not inform anyone. This witness stated that he came outside the hospital alone and wrote the complaint and at that time Bhawani Pal was not with him but was inside the hospital. In the above situation, no force appears in the argument that the FIR was written after consulting Bhawani Pal. As is clear from the said statement of the writer of FIR, Bhawani Pal was not present at the time of writing the report. Learned counsel for the appellant also argued that keeping in view the time taken in writing the report after placing the body in the mortuary at 1:40 PM by the informant, it was impossible to register the report at 1:10 PM. The witness stated that the body was placed in the mortuary at 12:35 PM or 1:40 PM. If the said time is taken as 12:35 PM, writing the FIR at Police Station Kotwali located four kilometers from the spot, as stated, is not improbable. In the present case, the FIR was lodged along with all essential facts for prosecution, names of witnesses, time of incident, place of incident, name of deceased and names of accused.

Learned counsel also submitted that delay was made in sending the FIR to the concerned court under Section 157 Cr.P.C. In this case, the incident is of dated 23.11.1994 and the report submitted before the concerned court bears the Magistrate's endorsement dated 29.11.1994. Delay in sending the report to the Court under Section 157 Cr.P.C. is not fatal to the prosecution in every situation and for this, facts and circumstances of the case must be kept in mind. From a perusal of the provisions of Section 157 CrPC, it is explicitly clear that the officer-in-charge of a police station shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report. In the present case, as mentioned above, no such fact came into light that the report was sent on 29.11.1994 rather it was received in the Magistrate Court on 29.11.1994. The Apex Court in Ravindra Mahto vs. State of Jharkhand 2006 (57) A.C.C. 543 has held that on the sole ground of delay in sending the FIR to the Magistrate, the entire prosecution case cannot be termed untrustworthy.

Learned counsel for the appellant pointed out overwriting and darkening of Crime Number and Sections in Inquest Report Ext. Ka-6, stating that the Crime Number and Sections were entered later with a different pen. According to PW-4, inquest proceedings commenced at 14:10 PM and concluded at 16:00 PM and the body was sealed and sent for postmortem. According to this witness, information of the incident was received at 13:10 P.M. whereupon he went to the hospital. No cross-examination was conducted regarding the said overwriting in the Inquest Report. In the case of Shambhu Das alias Bivai Das vs. State of Assam 2010 (71) A.C.C. 510, the Hon'ble Supreme Court held that the purpose of an Inquest Report is to ascertain whether the deceased met an unnatural death and its purpose is to ascertain the nature of injuries, apparent weapon and cause of death. It is not necessary to give the names of accused persons in the Inquest Report. Discrepancy in the Inquest Report is not fatal to the prosecution nor does it reveal suspicious circumstances. Contents of an Inquest Report cannot be called substantive evidence but can be used to test the veracity of evidence.

As regards the submission of the learned counsel for the appellant that in the present case the place of incident has not been conclusively proved by the prosecution and in the statements given by the witnesses about the place of incident, there are significant contradictions and upon the prosecution failing to conclusively prove the place of incident, the entire prosecution case becomes doubtful is concerned, from a perusal of the evidence produced on behalf of the prosecution it appears that regarding the place of incident there is no significant contradiction in the statements of the witnesses. It was mentioned in the FIR that when the vehicle was stopped on the left side in front of Dinesh Pal's quarter in Tehsil Colony, Ram Karan Arya's jeep came from the front and stopped. In the site plan Ext. Ka-14 prepared by the Investigating Officer, Dinesh Pal's house is shown at spot "C" near the place of incident. In the statements of the prosecution witnesses, it has been stated that when they reached between the saw mill and Ashok Shukla's house situated near Awas Vikas Chauraha, the jeep was struck and the incident was committed. In light of the above evidence, based on the site plan prepared by the Investigating Officer, it is to be seen whether there is a discrepancy between the statements of the witnesses and the site plan prepared by the Investigating Officer regarding the place of incident to such an extent that the place of incident becomes doubtful on the basis of the evidence. Detailed cross-examination of the witnesses was conducted. Informant Jaybaks Pal, P.W.-1 has stated that this incident occurred in front of the compound of Dinesh Pal's house. According to this witness, Dinesh Pal's house is situated to the west of Ashok Shukla's house and to the south of the road at a distance of about 30–40 meters. From the cross-examination conducted with this witness, it is clear that the boundary of Ashok Shukla's house and the saw mill are adjacent and from there Dinesh Pal's house is at a distance of about 30–40 meters. Further, P.W.-2 stated almost the same position of the place of incident. Thus, from a perusal of the statements of these witnesses, it appears that Ashok Shukla's house and the saw mill are situated side by side and according to Jaybaks Pal, P.W.-1, their boundaries are adjoining and Dinesh Pal's house is at a distance of 30–40 paces from that spot. Therefore, the submission of the learned counsel for the appellant that the place of incident is not fixed has no force.

As far as the submission of the learned counsel for the appellant that the witnesses, who claim to be eye witnesses of the incident, were not present at the place of incident and their presence on the spot has been fabricated is concerned, PW-1, PW-2 and PW-3 have stated that on Ram Karan Arya's jeep there were Ram Karan Arya, Ram Ujagir, driver Om Prakash, Usman, Amar, gunner Ram Pyare, Santram, and three other policemen, who surrounded their jeep while hurling abuses. At that time, they were sitting inside the jeep itself. These witnesses have stated their presence at the place of incident as being seated in the jeep with Shambhu Sharan Pal and stated that at that time they were going to participate in a rally organized by Jagdambika Pal in Walterganj. Among the other two witnesses examined on behalf of the prosecution, P.W.-4 Om Prakash Singh and another witness stated to be present at the spot is Vishwanath Tiwari, P.W.-7. These persons also stated their presence at the place of incident, saw the incident and gave details of the incident in their statements. According to P.W.-4, he had come to Company Bagh Chauraha for his personal work and at the time of the incident was coming from Company Bagh towards Katra and when he reached near the saw mill at Awas Vikas Tiraha, he saw the incident. Similarly, P.W.-7 has stated regarding his presence on the spot that on that day he had come to take medicine for his mother and after taking medicine from Company Bagh, was returning and as soon as he reached near the saw mill situated near Awas Vikas Tiraha, he saw the incident. Thus, the presence of the eye witnesses on the spot is established beyond doubt. If, while loading Shambhu Sharan Pal into the jeep while taking him to the hospital, no blood stains were found on the body or clothes of the witnesses, this situation alone does not create doubt regarding the presence of the witnesses on the spot.

So far as the submission of the learned counsel for the appellant that medical evidence does not support the oral version is concerned, the post-mortem of the body of deceased was conducted by Dr. S.S. Dwivedi, P.W.-5 on 23.11.1994 at 8:00 PM and the death of the deceased was stated to have occurred half a day prior. Amongst the ante-mortem injuries, one injury, firearm wound, measuring 6 cm x 5 cm x chest cavity deep, entering inwards, was present. The margins of the wound were inverted with bleeding, blackening and tattooing present. Apart from this injury, two other injuries, one an abraded linear mark 5 cm x 0.5 cm on the left side of the face immediately below the left eye, and and the other lacerated wound 1 cm x 0.5 cm skin deep on the right side of the neck merged with injury No. 1 were found. In the internal examination of the corpse, a lacerated wound was found in the upper part of the right lung membrane and the upper lobe of the right lung was lacerated. In the opinion of the doctor, death of the deceased was caused by shock and hemorrhage due to ante-mortem firearm injury.

From a perusal of the statement of the doctor, it is clear that one firearm entry wound was found on the right side of the deceased's neck on which blackening and tattooing were present, revealing that the shot was fired from close range. According to the oral evidence produced by the prosecution, accused Ram Karan Arya fired with a gun at Shambhu Sharan Pal which struck the right side of his neck and this condition is consistent with injury No. 1 found in the post-mortem. Dr. S.S. Dwivedi, P.W.-5, in his cross-examination has stated that the direction of the injury found on the body of the deceased was from top to bottom/downwards, and in his opinion such an injury by a shot is possible only when the assailant is at a higher height than the injured person. In the statements of prosecution witnesses, it has come that the height of accused Ram Karan Arya was less than that of deceased Shambhu Sharan Pal and deceased Shambhu Sharan Pal was taller in stature than accused Ram Karan Arya. In the present case, after the jeep collision, heated exchange and dispute took place between both parties and statements of witnesses reveal that Shambhu Sharan Pal was begging for forgiveness and during this time Ram Karan Arya snatched the gun from Ram Ujagir and fired. In such a situation, it is natural that the person upon whom a gun is pointed/fired will attempt to defend himself and in an attempt to save himself, will move around or try to bend and standing completely straight would not be natural behavior. Keeping in view this circumstance, a conclusion regarding the direction of injury cannot be drawn solely on the basis of the difference in height between the deceased and the accused. According to complainant Jaybaks Pal, P.W.-1, the shot was fired from a distance of one to two feet. Prosecution witnesses state that after being shot, Shambhu Sharan Pal fell on the pitch road and after Shambhu Sharan fell, injuries were also seen on his face and blood was falling from there. Shambhu Sharan Pal fell face down after being shot and sustained injuries. The said situation described by prosecution witnesses provides an explanation for the other injuries found on the deceased's body and under the above circumstances, it cannot be said that the medical evidence contradicts oral evidence and is of such a nature that it completely negatives the causing of injuries in the manner described by the witnesses.

With regard to the ante-timing of the FIR, learned counsel submits that the parentage as had been given in the FIR of the accused definitely indicated that the FIR was a well thought out one as the informant had no source of information vis-a-vis the parentage. In fact in his statement before the court the informant had said in so many words that at the lodging of the FIR the parentage of the accused were not known to him.

Learned counsel for the informant and the learned Additional Advocate General appearing for the State of U.P. submitted that according to the provisions of Section 149 IPC merely by being a member of an unlawful assembly, every member of the unlawful assembly is liable for an offence committed by any one or more members of the unlawful assembly. Looking at the circumstances of the present case, in which presence at the spot is stated to be sudden and looking at the depositions of the witnesses, in this matter the formation of an unlawful assembly does not appear to be established. The incident occurred following a dispute that arose after the collision of deceased Shambhu Sharan Pal's jeep into accused Ram Karan Arya's jeep. Prior to this, according to informant - P.W.-1, there was no enmity or ill-will between the parties and at the time of the incident, deceased Shambhu Sharan Pal along with prosecution witnesses was going to attend the rally organized by Jagdambika Pal in Walterganj and Ram Karan Arya's jeep was also traveling along the same route, in which after the collision the incident was committed. From this, it is clear that when the accused persons reached the spot, they did not reach with the intention of committing an offence with any common object. No clear statement was given on behalf of the prosecution regarding any accused other than accused Ram Karan Arya possessing weapons in hand. To give effect to the provisions of Section 149 I.P.C., it is necessary for the prosecution to prove the fact that the offence was committed in furtherance of the common object in fulfillment of the object given in Section 141 IPC. If an offence has been committed by an individual person, which was not committed in furtherance of a common object, the other persons whose specific role or active participation in the incident has not been shown, will not be liable for the offence committed by that person, which was committed out of his own knowledge and intention. In the present case, after the collision of jeeps, the dispute took place between Ram Karan Arya and deceased Shambhu Sharan Pal and during the dispute itself, Ram Karan Arya took a gun from Ram Ujagir and fired upon Shambhu Sharan Pal and, as described above, the person firing with a gun has knowledge of the intention and fact that death of the deceased is caused in the ordinary course of nature by injuries inflicted by a gun it cannot be accepted that the offence committed by Ram Karan Arya was, in these circumstances, committed as a member of an unlawful assembly merely by all accused coming together and going together. Hence, in the present case, formation of a common object does not appear.

Thus, from the above discussions, it is evident that PW-1 has proved the first information report. PW-2 and PW-3, eye witnesses, in their evidence have proved the manner in which the accused appellant had caused injuries upon the deceased resulting into his death. They have offered a natural picture of the incident. The evidence of the informant PW-1 and the said eyewitnesses are totally consistent and also corroborate with the first information report as to the date, time and place of the incident. The presence of the said eye witnesses at the place of incident is quite natural as they were in the jeep of the deceased itself and PW-4 and PW-7 had reached the incident by chance and witnessed the incident. The ocular evidence of eyewitness as to the injuries caused by the accused appellant is also totally consistent with the first information report and medical evidences i.e. the postmortem report and the evidence of PW-5, the doctor who conducted the autopsy. The Chik FIR has been proved by PW-6. The injuries found on the body of the deceased, as mentioned in the postmortem report, have been proved by PW-5 Dr. S.S. Dwivedi, who conducted autopsy on the body of the deceased. The injuries, as mentioned in the postmortem report and proved by the PW-5 in his ocular evidence, corroborate with the first information report and the evidence of eyewitnesses as well as the inquest report. PW-5 has also opined that the cause of death was due to shock and haemorrhage as a result of ante mortem firearm injuries. Thus, the date, time and place of incident, the presence of the accused appellant at the place of incident and the injuries caused by him to the deceased resulting into his death have been successfully proved by the prosecution beyond a reasonable doubt.

Now the Court proceeds to deal with the submission made by the learned counsel for the appellant that offence under Section 302 IPC is not made out and this case cannot travel beyond the purview of offence under Section 304 (Part-I) or 304 (Part-II) IPC.

In this matter, it is undisputed fact that on the day of the incident, deceased Shambhu Sharan Pal along with prosecution witnesses was going in a jeep to Walterganj to attend a rally organized by Sadar MLA Jagdambika Pal and when they stopped the vehicle in front of Dinesh Pal's quarter before the Awas Vikas gate, MLA Nagar Purv Ram Karan Arya coming from the front stopped his jeep. Ram Karan Arya abused Shambhu Sharan and said, "Putting a Congress flag and driving the vehicle, you hit my jeep; why did you hit my vehicle ?" Shambhu Sharan Pal also uttered some harsh words, whereupon Ram Karan Arya became angry and suddenly fired at Shambhu Sharan, due to which Shambhu Sharan Pal fell down bleeding and subsequently died.The fact that it was a homicidal death takes this Court to most vexed question whether it would fall within the four-corners of murder or culpable homicide not amounting to murder. Therefore, we are considering the question whether it would be a murder or culpable homicide not amounting to murder and punishable under Section 304 IPC.

The counsel for the appellant has argued that the present case is squarely covered under Exception 4 of Section 300 IPC, which reads as under:

In the case of Pulicherla Nagaraju @ Nagaraju @ Nagaraja Reddy Vs. State of Andhra Pradesh, (2006) 11 SCC 444, the Hon'ble Supreme Court enumerated some of the circumstances relevant to find out whether there was any intention to cause death on the part of the accused. The Court observed as under :

Further, in the case of State of Rajasthan Vs Dhool Singh, (2004) 12 SCC 546, the Hon'ble Supreme Court has observed that in order to determine whether there was intention to kill or not is to be determined while keeping in mind whether the injury was caused on vital body part and the nature of the weapon used. The number of injuries inflicted shall be irrelevant. The relevant part of the judgment is reproduced as under :-

Similar view was taken by the Hon'ble Supreme Court in Arun Raj Vs Union of India & others, JT 2010 (5) SC 1, wherein the Court observed as under :

In Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217, Apex Court on the same issue held that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the Exception provided he has not acted cruelly. This Court held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300, the Apex Court observed as under:-

(emphasis supplied).

In Ghapoo Yadav and Ors. v. State of M.P., (2003) 3 SCC 528, the Apex Court held that in a heat of passion there must be no time for the passion to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 IPC. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite :

(Emphasis supplied)

(Emphasis supplied)

In Sukbhir Singh v. State of Haryana, (2002) 3 SCC 327, the appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court, Hon'ble Apex Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 to Section 300 IPC. In cases where after the injured had fallen down, the appellant-accused did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. The Court observed as under :-

(Emphasis supplied)

In Mahesh v. State of M.P., (1996) 10 SCC 668, where the appellant had assaulted the deceased in a sudden fight and after giving him one blow he had not caused any further injury to the deceased which fact situation was held by this Court to be sufficient to bring the case under Exception 4 to Section 300 of IPC. This Court held:

(Emphasis supplied)

Coming back to facts of the present case, from the evidence led by both sides, it is clear that there was sudden altercation between the parties which resulted in the fatal mishap. As per the FIR version when deceased Shambhu Sharan Pal along with other persons was going in a jeep to Walterganj to attend a rally organized by Sadar MLA Jagdambika Pal and when they stopped the vehicle in front of Dinesh Pal's quarter before the Awas Vikas gate, MLA Nagar Purv Ram Karan Arya coming from the front stopped his jeep. Ram Karan Arya abused Shambhu Sharan and said, "Putting a Congress flag and driving the vehicle, you hit my jeep; why did you hit my vehicle ?" Shambhu Sharan Pal also uttered some harsh words, whereupon Ram Karan Arya became angry and fired at Shambhu Sharan, due to which Shambhu Sharan Pal fell down bleeding and subsequently died. Evidence also discloses that there was no pre-meditation. Other accused persons had not been assigned role of causing assault to the deceased or any other overt act. The offence has been committed by the accused appellant as the deceased had collided his vehicle with the vehicle of the appellant and when the appellant asked him as to why he collided the vehicle, the deceased Shambhu Sharan Pal uttered some harsh words, whereupon Ram Karan Arya became angry and fired upon him, thus, this goes to show that in the heat of passion upon a sudden quarrel the appellant had caused injuries on the deceased. Thus, in our view, in the present case it cannot be said that the appellant had pre-meditation to commit murder of the deceased. The appellant did not take any undue advantage nor acted in a cruel or unusual manner. We have bestowed our best of consideration to the facts of the present case.

In the aforesaid circumstances, we are of the considered view that it is a case of culpable homicide not amounting to murder within the ambit of Exception 4 of Section 300 IPC. The offence was committed by the appellant with intention of causing death of the deceased. On overall scrutiny of the facts and circumstances of the present case coupled with the evidence as have come on record and the principles laid down by the Hon'ble Supreme Court in the aforesaid cases, we are of the considered opinion that the offence would be one punishable under Section 304 (Part-I) of the IPC in view of the fact that the injuries were found to be sufficient in the ordinary course of nature to cause his death but same were caused in a sudden fight in the heat of passion upon a sudden quarrel, hence the instant case falls under the Exception 4 to Section 300 of IPC.

In the result, the criminal appeal is partly allowed only to the extent that instead of Section 302 IPC, the appellant shall stand convicted for the offence of culpable homicide not amounting to murder punishable under Section 304 (Part-I) IPC and would be now sentenced to undergo rigorous imprisonment for a period of ten years. The fine imposed upon the appellant and the default sentence awarded to him shall remain unaltered. Upon the completion of the above period of incarceration and upon the payment of the fine etc. the appellant shall be released, if not wanted in any other case.

On perusal of the impugned judgment and order and the evidence available on record, we are of the view that since the offence was not committed in furtherance of common object of all and no overt act has been assigned to them, the trial court has rightly acquitted the other accused persons, against whom the aforesaid Government Appeal has been moved before this court. Hence, the said government appeal filed on behalf of the State is dismissed.

Copy of this order be placed on the record of government appeal no. 655 of 2024.

Copy of the order be sent to the concerned trial court within a fortnight for compliance.