Case: Banwari Ram Vs. State of U.P

the oral testimony of more than two prosecution witnesses. Once it is held that they were also members of unlawful assembly they will be liable for the unlawful activities of the members of the said assembly, even if they might not have actually fired the guns. On the materials on record the High Court has come to the conclusion that not only the persons concerned were members of unlawful assembly but also their presence at the spot constituted sufficient encouragement for other members of the said assembly who indiscriminately started firing at the Army jawans. It is well settled that if offence is committed by some members of an unlawful assembly then the other members of the assembly are also liable for the offence under Section 149 of the Indian Penal Code. We have also carefully scrutinised the judgment of the learned Sessions Judge as well as that of the High Court and we are of the considered opinion that the High Court was wholly justified in reversing an order of acquittal passed by the learned Sessions Judge and we do not find any error of law therein. 6. Coming now to the arguments advanced on behalf of those accused persons whose conviction and sentence passed by the learned Sessions Judge have been upheld in an appeal, it appears to us that the High Court while hearing an appeal against the judgment of the learned Sessions Judge has fully re- appreciated the evidence and has affirmed the conclusion arrived at by the learned Sessions Judge by applying the test of identification by two or more of the prosecution witnesses and also by examining the duty chart of the accused persons which indicates persons who were present at the relevant point of time at the Quarter Guard duty. The arguments of the learned counsel appearing on behalf of the appellants that in the absence of any inquest or post-mortem in respect of the deceased Army personnel it has to be held that the prosecution case has not been proved beyond reasonable doubt is an argument which is merely to be mentioned for being rejected. The prosecution evidence unequivocally establishes the fact that the accused persons belonging to the Provincial Constabulary started indiscriminately firing at the Army jawans who had been called upon to take charge of the armoury. On account of such indiscriminate firing by the members of the Provincial Constabulary 12 persons belonging to the Army died whose dead bodies were recovered from the spot itself and the necessary death certificates had been issued by the Medical authority. In such an event non-holding of any post-mortem examination is immaterial and the contention of the learned counsel appearing for the appellants that the prosecution failed on that score is wholly unsustainable in law and we have, therefore, no hesitation to reject the same. The further argument that the prosecution evidence is not categorical to the fact that the death of the Army jawans occurred on account of firing by the appellants is equally unsustainable in view of the charge under Section 302 read with 149 IPC and in view of the findings that the accused appellants together with several others belonging to the Provincial Armed Constabulary formed an unlawful assembly and in resisting the Army jawans from taking charge of the Armoury and the Quarter Guard indiscriminately fired at them. We have also examined the evidence on record and the conclusion is irresistible that the prosecution case that accused appellants being members of an unlawful assembly indiscriminately started firing at the Army jawans which resulted in the death of 12 Army personnel has been proved beyond reasonable doubt, and as such, the High Court has rightly convicted them under Sections 302/149 IPC. We have also considered the argument specifically advanced on behalf of the appellant-Shambhu Singh to the effect that Shambhu Singh was not there at the Quarter Guard when the firing started and he came at a later stage and as such cannot be held to be a member of an unlawful assembly but we do not find any substance in the same.7. PW 3 Vishwa Nath Pandey was the senior most Company Commander in respect of 9 companies constituting the 5th Batallion. He had gone to the place of occurrence several times both in the beginning of the incident as well as after the arrival of the Armed forces and marched with them towards the Quarter Guard. According to him he could see and recognise from amongst the Provincial Constabularies who became unlawful and started firing at Armed jawans, 12 persons including head constable Shambhu Singh. He further indicated that he had seen all of them at the Quarter Guard and 10 of them were firing. In view of the aforesaid positive evidence of PW3 the senior most Company Commander which has been accepted by the two Courts below it is difficult for us to sustain the argument advanced by the learned counsel for the appellant-Shambhu Singh that he was not a member of the unlawful assembly from the beginning and even at later point of time he has not done anything so as to convict him by taking recourse to Section 149 IPC. We, therefore, reject the said submission advanced by the learned counsel for Shambhu Singh. Though normally this Court does not re-appreciate the evidence where two Courts below have already appreciated and held the evidence reliable, but in view of the fact that large number of appellants were involved and incident itself occurred in a very peculiar situation we have also ourselves scrutinised the evidence and we find the evidence to be reliable and trustworthy and the learned Sessions Judge as well as the High Court rightly relied upon the said testimony in basing conviction against the accused appellants. We do not find any legal infirmity with the conviction and sentence passed by the High Court against the appellants and in our considered opinion prosecution has proved the charges against the accused persons beyond reasonable doubt.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We have also examined the evidence on record and the conclusion is irresistible that the prosecution case that accused appellants being members of an unlawful assembly indiscriminately started firing at the Army jawans which resulted in the death of 12 Army personnel has been proved beyond reasonable doubt, and as such, the High Court has rightly convicted them under Sections 302/149 IPC. We have also considered the argument specifically advanced on behalf of theSingh to the effect that Shambhu Singh was not there at the Quarter Guard when the firing started and he came at a later stage and as such cannot be held to be a member of an unlawful assembly but we do not find any substance in the same.7. PW 3 Vishwa Nath Pandey was the senior most Company Commander in respect of 9 companies constituting the 5th Batallion. He had gone to the place of occurrence several times both in the beginning of the incident as well as after the arrival of the Armed forces and marched with them towards the Quarter Guard. According to him he could see and recognise from amongst the Provincial Constabularies who became unlawful and started firing at Armed jawans, 12 persons including head constable Shambhu Singh. He further indicated that he had seen all of them at the Quarter Guard and 10 of them were firing. In view of the aforesaid positive evidence of PW3 the senior most Company Commander which has been accepted by the two Courts below it is difficult for us to sustain the argument advanced by the learned counsel for theSingh that he was not a member of the unlawful assembly from the beginning and even at later point of time he has not done anything so as to convict him by taking recourse to Section 149 IPC. We, therefore, reject the said submission advanced by the learned counsel for Shambhu Singh. Though normally this Court does notthe evidence where two Courts below have already appreciated and held the evidence reliable, but in view of the fact that large number of appellants were involved and incident itself occurred in a very peculiar situation we have also ourselves scrutinised the evidence and we find the evidence to be reliable and trustworthy and the learned Sessions Judge as well as the High Court rightly relied upon the said testimony in basing conviction against the accused appellants. We do not find any legal infirmity with the conviction and sentence passed by the High Court against the appellants and in our considered opinion prosecution has proved the charges against the accused persons beyond reasonable doubt.Coming now to the arguments advanced on behalf of those accused persons whose conviction and sentence passed by the learned Sessions Judge have been upheld in an appeal, it appears to us that the High Court while hearing an appeal against the judgment of the learned Sessions Judge has fully reappreciated the evidence and has affirmed the conclusion arrived at by the learned Sessions Judge by applying the test of identification by two or more of the prosecution witnesses and also by examining the duty chart of the accused persons which indicates persons who were present at the relevant point of time at the Quarter Guard duty. The arguments of the learned counsel appearing on behalf of the appellants that in the absence of any inquest orin respect of the deceased Army personnel it has to be held that the prosecution case has not been proved beyond reasonable doubt is an argument which is merely to be mentioned for being rejected. The prosecution evidence unequivocally establishes the fact that the accused persons belonging to the Provincial Constabulary started indiscriminately firing at the Army jawans who had been called upon to take charge of the armoury. On account of such indiscriminate firing by the members of the Provincial Constabulary 12 persons belonging to the Army died whose dead bodies were recovered from the spot itself and the necessary death certificates had been issued by the Medical authority. In such an eventtem examination is immaterial and the contention of the learned counsel appearing for the appellants that the prosecution failed on that score is wholly unsustainable in law and we have, therefore, no hesitation to reject the same. The further argument that the prosecution evidence is not categorical to the fact that the death of the Army jawans occurred on account of firing by the appellants is equally unsustainable in view of the charge under Section 302 read with 149 IPC and in view of the findings that the accused appellants together with several others belonging to the Provincial Armed Constabulary formed an unlawful assembly and in resisting the Army jawans from taking charge of the Armoury and the Quarter Guard indiscriminately fired at them.We have also examined the evidence on record and the conclusion is irresistible that the prosecution case that accused appellants being members of an unlawful assembly indiscriminately started firing at the Army jawans which resulted in the death of 12 Army personnel has been proved beyond reasonable doubt, and as such, the High Court has rightly convicted them under Sections 302/149 IPC. We have also considered the argument specifically advanced on behalf of theh to the effect that Shambhu Singh was not there at the Quarter Guard when the firing started and he came at a later stage and as such cannot be held to be a member of an unlawful assembly but we do not find any substance in the same.