MASTER Vs. STATE OF U P

JUDGEMENT

(1.) THE above two appeals have arisen out of the judgment and order of Sri M. P. S. Tomar, II Addl. Sessions Judge Etah dated 23-10-78 in the Sessions Trial No 425 of 1977. THE accused Raghubir and Master of this case were tried under sections 302, 323/324/302 read with 149 and 148 of the Indian Penal Code, Amar Singh and Ram Singh u/Secs 323/ 324/302 read with 149 and 148 of the: Indian Penal Code, Ram Sanehi, Dhruv Singh, Ganga Singh, Ram Chandra and Hari Das u/Secs, 323, 147 and 323/ 324/302 read with section 149 of the Indian Penal Code and Ram Prasad, Karan Singh, Roop Ram, Kamta, Ram Nath, Udaibir, Ram Das, Kishan Pal, Suraj Pal, Shreepal, Banshi and Kripal u/Secs. 147 and 323/324/302 read with section 149 of the Indian Penal Code. THE Addl. Sessions Judge had convicted Master u/Secs. 302, 148, 323 read with 149 IPC. Amar Singh and Ram Singh u/Secs 148 and 323/392 read with section 149 of the Indian Penal Code and Ram Prasad and Karan Singh u/Secs. 147 and 323/302 read with section 149 of the Indian Penal Code. Tbe accused Master u/Sec. 302 IPC had been sentenced to imprisonment for life, u/Sec. 148 IPC to rigorous imprisonment for two years and u/Sec. 323 read with section 149 IPC to rigorous imprisonment for six montha. THE accused Amar Singh and Ram Singh u/Sec. 302 read with section 149 IPC had been sentenced to imprisonment for life, u/Sec. 323 read with section 149 IPC to rigorous imprisonment for six months and u/Sec. 148 IPC to two years rigorous imprisonment, the accused Ram Prasad and Karan Singh u/Sec. 302 read with section 149 IPC had been sentenced to rigorous imprisonment for life, u/Sec 323 read with section 149 IPC to R.I. for six months and u/Sec 147 IPC to rigorous imprisonment for one year. Aggrieved by the order of the Addl. Sessions Judge, Master, Ram Prasad, Ram Singh, Amar Singh and Karan Singh filed the Criminal Appeal No. 3033 of 1978. THE Government too has filed the Criminal Appeal No. 17 of 1979 against the acquittal of the remaining sixteen accused Roop Ram, Ganga Singh, Kamta, Ram Nath, Raghubir, Udaivir, Dhruv Singh, Ram Das. Hari Das, Kishan Pal, Suraj pal, Shri Pal, Banshi, Ram Chandra, Kripal and Ram Sanehi.

(2.) THE prosecution case briefly stated is that deceased Jwala along with the informant Lakhan Singh and Rambir and Chandrapal of his own village Nagla Kamley, and Diwari and others of village Gathran Nagla had got a sale deed executed in their favour by Sri Ram Pandit in respect of his share of land over which he alleged to have been in possession in village Paroli. THE accused Ram Prasad objected to the sale on the ground that Sri Ram Pandit had earlier gifted the above property in his favour. THE consolidation authority taking the sale deed to be valid directed mutation in favour of the vendees. Ram Prasad besides opposing the mutation application of the above vendees had also filed a suit in the Revenue Court in respect of the land which was the subject of the sale deed. THE deceased Jwala and Ram Prasad too filed Original Suit No. 100 of 1975 in the court of Munsif Etah regarding the same and on their prayer the Munsif Etah appointed Dhanpat Prasad Maheshwari Advocate PW 6 as Vakil Commissioner to evaluate the standing crop on the aforesaid land. Dhanpat Prasad Maheshwari on 26-3-76 about 8 A.M reached the disputed land which ha in his report has described as Chak No. 486 of village Paroli. THE deceased Jwala Prasad who was one of the plaintiffs and persons opposed to him were stated by him to have been present at the disputed site. THE latter were getting the standing crop harvested. THEy were armed with country made pistols and lathis THEy asked the Vakil Commissioner not to evaluate the crop of the disputed land and go back as there could be 'marpeet'. THE Vakil Commissioner noticing the mounting tension between them due to the hurling of abuses at each other went away. Raghubir and Amar Singh at that time were armed with their licensed guns and Ram Singh and Master were having country made pistols. THE accused Roop Ram and Kamta exhorted Raghubir and Master that Jwala should not be permitted to go back alive. Raghubir and Master thereupon shot at Jwala. On being struck by a pellet Jwala ran towards the village. He, however, was given a chase by both Raghubir and Master and when he was running through the field of Raj Bali, he was shot at in his back and he died as a result thereof at the spot. THE family members of the informant Lakhan Singh named Achhe Lal, Ganga Dhar and Ram Ladete, and also the witnesses Kehari Singh, Maik Singh Bishuni, Ram Swaroop and many other persons who had reached there challenged the above assailants. THE accused Ganga Das, Ram Chandra and Hari Das thereupon assaulted Achhe Lal, the accused Ham Sanehi and Dhruv Singh assaulted Ganga Dhar and one of the above persons carrying fire arms caused pellet injuries to Ram Ladete. All the accused thereafter fled away.

(3.) WE went through the evidence on record and heard the counsel for the parties at length. WE shall first take up the appeal filed by Master, Ram Prasad, Ram Singh, Amar Singh and Karan Singh against their conviction on the charges above mentioned. A perusal of the first information report shows that the actual incident of assault had two parts. The first related to the causing of the death of Jwala wherein the role of exhortation had been assigned to Roop Ram and Kamta (immediately whereafter he was shot at; and the second related to the causing of injuries to Achhe Lal, Ganga Dhar and Ram Ladetey when after the above shooting they had challenged the assailants of Jwala. The appellants Ram Prasad, Ram Singh, Amar Singh and Karan Singh were not pointed in the first information report or during the trial to have caused any injury either to Jwala deceased or to Achhe Lal, Ganga Dhar and Ram Ladetey. The Addl. Sessions Judge, however, has held them to have constituted the unlawful assembly, the common object of which was to kill Jwala and to cause injuries to Achhe Lal, Ganga Dhar and Ram Ladetey for he thought that they must have necessarily been present at the time of the incident to cut the crop which was to be evaluated by the Vakil Commissioner at the behest of Jwala and others whom they were certain to treat as enemies for they were intruders through sale deed which they did not respect. The counsel for the appellants Ram Prasad, Ram Singh, Amar Singh and Karan Singh argued that the conviction of these appellants was unsustainable for being based purely on surmise and conjecture. It was pointed that no overt act bad been attributed to them in connection with the assault and that there was also no evidence that they had formed an unlawful assembly to illegally cut the crop. It was stressed that it was not the prosecution case that there was any prohibitory injunction order against the appellants that they were not to interfere in the possession of Jwala deceased and others over the crop to be evaluated or that any unlawful assembly had been formed to commit dacoity in respect of the crop and to murder those who objected to the harvesting. The incident according to the FIR took place when the Vakil Commissioner failed to execute the commission. Dhanpat Rai Maheshwari Vakil Commissioner in his cross examination pointed out that in all there were three or four persons on the one side and eight to ten persons on the other. From the first information report it does not follow that the Vakil Commissioner had left before the incident. During the investigation and trial however, the witnesses gave out that the Vakil Commissioner fearing violent clash had gone away before the occurrence. There is however nothing to show that there was any time gap to be taken note of between his going and the assault wherein more persons arrived from both the sides. Thus if the Vakil Commissioner Dhanpat Prasad Maheshwari is to be believed it would follow that more than half of the accused had been falsely implicated. The complainant in the FIR had assigned roles to nine persons by name of either exhortation or of assault. WE feel that if Ram Prasad, Ram Singh, Amar Singh and Karan Singh appellants would have had really so much interest in the land as to constitute an unlawful assembly to kill Jwala and injure Achhe Lal Ganga Dhar and Ram Ladetey, they were not likely to have exercised restraint and remained passive spectators. In fact the finding of the Addl. Sessions Judge regarding their presence is not free from reasonable doubt particularly when we find that the testimony of Dhanpat Prasad Maheshwari, Vakil Commissioner and the allegations in the FIR ate not reconcilable It also cannot be lost sight of that Achhe Lal PW 2 gave but that he had not told the names of all the twenty one accused to the Investigating Officer and from the statement of Ram Swaroop PW 3 under section 161 CrPC too it follows that he had not stated about the presence of all the accused. The conviction of Ram Prasad, Ram Singh, Amar Singh and Karan Singh under section 323/324/302 read with section 149 IPC and sections 147 and 148 IPC is liable to be set aside.