Hari Das and Others vs State

Kundan Singh, J.—Heard Sri P.C. Misra, learned Counsel for the applicants and learned A.G.A. for the State.

This revision is directed against the judgment and order dated 19.10.83 of Sessions Judge, Etah, dismissing the Criminal Appeal No. 184 of 1983 modifying and reducing the sentence of imprisonment from six months to the period already undergone, u/s 147, I.P.C. with a fine of Rs. 100 each, and the imprisonment of 6 months to imprisonment already undergone with a fine of Rs. 100 each u/s 323/149, I.P.C. awarded by the Judicial Magistrate, Etah, in Case No. 622 of 1981 by judgment and order dated 17.8.83.

The incident is said to have taken place on 3.2.1980 in the town of Jaithra, District Etah, in which 14 accused persons are said to have caused injuries on the body of Ram Sanehi, his wife Dharam Kumari and son Yatendra and the applicant Hari Das is said to have fired a shot and set fire on a thatch. The trial court convicted the applicants and other co-accused u/s 147, I.P.C. except Hari Das and sentenced to 6 months'' R.I. All of them were further convicted u/s 323/149, I.P.C. and sentenced to undergo 6 months'' R.I. Each of them was further convicted and sentenced to undergo R.I. for two years and a fine of Rs. 500 u/s 452, I.P.C. Hari Das was further convicted and sentenced to 9 months'' R.I. u/s 148, I.P.C. On appeal learned Sessions Judge modified the sentence of the applicants and acquitted two co-accused Raj Pal and Sri Pal and all the applicants from the charges under Sections 452 and 435, I.P.C.

Learned Counsel for the applicants submitted that the trial court found no charge u/s 307/149, I.P.C. proved against any of the applicants. Two co-accused, namely, Sri Pal and Raj Pal have been acquitted from the charges levelled against them by the appellate court. No charge under Sections 435, 452 and 148, I.P.C. was proved against the applicants and co-accused, and all of them have been acquitted from the charges u/s 307/149/435/452, I.P.C. by the courts below.

The participation of two co-accused Sri Pal and Raj Pal was found doubtful by the learned Sessions Judge in the appeal. The charge under Sections 452, 435 and 148, I.P.C. was also not found proved against the applicants or any other co-accused.

The applicant Hari Das is said to have used gun in the incident and the firing by the applicant Hari Das was found doubtful. It was observed by the learned Sessions Judge that use of gun, although possessed by one of the applicants viz. Hari Das in the assault also seemed to be doubtful. Consequently the charge against applicant Hari Das u/s 148, I.P.C. was not sustained. On the basis of the observation of the learned Sessions Judge, the learned Counsel for the applicant submitted that once the use of the applicant''s gun was found doubtful, it cannot be said that Hari Das applicant also participated in the incident, as such he is also entitled to acquittal.

The contention of the learned Counsel for the applicant appears to have force. Once the firing by Hari Das applicant was found doubtful, no specific role has been assigned in the incident, then his participation in the incident in which other co-accused are said to have inflicted injuries on the body of the injured persons become doubtful as such the applicant Hari Das is entitled to the benefit of doubt.

The learned Counsel for the applicant could not point any infirmity or illegality in the orders of the courts below regarding other applicants.

Accordingly the revision of Hari Das is allowed and the conviction and sentence modified by the appellate court are set aside.

However, the revision of other applicants Ram Das, Kripal Singh, Anek Singh, Veer Pal, Ram Autar, Bijendra Singh, Rama Nand Dube, Chandrapal, Murari Lal, Babu and Faiyad Khan is dismissed. They are allowed to deposit the amount of fine awarded by the learned Sessions Judge within two months from today.