LexRAMVIR versus STATE OF UTTAR PRADESH
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A B C D E F G H 547 RAMVIR v. STATE OF UTTAR PRADESH (Criminal Appeal No. 183 of 2013) OCTOBER 26, 2018 [ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.] Penal Code, 1860 – ss.148, 149 and 302 – Case of the prosecution that the appellant along with five other persons armed with guns surrounded one ‘S’ and his son and fired shots whereupon ‘S’ on receiving injuries fell down and died – Trial Court while acquitting the appellant of the charges u/s.149, IPC, convicted him u/s.302, IPC – Other five accused persons were acquitted from all the charges leveled against them – High Court in appeal filed by the appellant upheld his conviction u/s.302, IPC and further convicted him u/ss. 148/149, IPC – Propriety of – Held: Appellant was acquitted by the Sessions Judge for commission of offences falling u/ss.148/149, IPC – Appellant’s acquittal was not challenged by the State by filing any appeal before the High Court thus there was no occasion for the High Court to have gone into this question in appeal filed by the appellant – Five co-accused persons having also been acquitted of the charges framed against them u/ss.148/149, IPC, no case was made out against the appellant for his conviction u/ss.148/149, IPC – Once it was held by the Sessions Judge that all the six accused persons could not be convicted u/ss.148/149, IPC and were accordingly acquitted and no appeal having been filed by the State against this part of the order, the High Court was not justified in convicting the appellant u/ss.148/149, IPC – Further, appellant’s conviction u/s.302, IPC is also not factually and legally sustainable – Appellant entitled for benefit of doubt and is acquitted of the charges framed against him u/s.302 r/w ss.148/149, IPC. Allowing the appeal, the Court HELD: 1.1 Appellant’s conviction under Section 148/149 IPC is not legally sustainable and deserves to be set aside for [2018] 13 S.C.R. 547 547 A B C D E F G H 548 SUPREME COURT REPORTS [2018] 13 S.C.R. more than one reasons. First, the appellant was already acquitted by the Sessions Judge for commission of offences falling under Section 148/149IPC. Also, the appellant’s acquittal was not challenged by the State by filing any appeal before the High Court. In this view of the matter, there was no occasion for the High Court to have gone into this question in an appeal filed by the appellant as the same had attained finality. Second, in any event, five co-accused persons having also been acquitted of the charges framed against them under Section 148/149IPC, no case was made out against the appellant for his conviction under Section 148/ 149IPC. Once it was held by the Sessions Judge that all the six accused persons could not be convicted under Section 148/ 149IPC and were accordingly acquitted and no appeal having been filed by the State against this part of the order, the High Court was not justified in convicting the appellant under Section 148/149IPC. Third, as mentioned above, the prosecution had named six accused persons as being the members of “unlawful assembly” of which the appellant was one. [Paras 13-17] [551-E-H; 552-A-B] 1.2 It is not the case of prosecution that even though these six accused persons were acquitted of the charges framed under Section 148/149 IPC, yet there were some more unknown persons present at the time of occurrence with the appellant other than five named accused persons and, therefore, the appellant could still be convicted under Section 148/149 IPC as a member of an unlawful assembly with such unknown persons notwithstanding the acquittal of five accused persons. The High Court was not justified in convicting the appellant (A-1) for commission of the offences punishable under Section 148/149 IPC. The conviction under twin sections is, therefore, not sustainable both on facts and in law and hence deserves to be set aside. [Paras 18, 19] [552-C-E] 1.3 Appellant’s conviction under Section 302 IPC is concerned, the same is also not factually and legally sustainable. There was no evidence to prove that appellant was the author of the gun shot which killed ‘S’; Second, the ballistic report (Ex C- 1) did not support the prosecution case inasmuch as it opined that cartridges fired and recovered from the spot could not have been so fired from the rifle belonging to the appellant and the A B C D E F G H 549 third, the alleged rifle was not taken in police custody immediately after the incident but it was surrendered by the appellant in the Court. In the light of
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