& ANR Vs. State of Rajasthan  INSC 788 (22 October 1997)
NANAVATI, V.N. KHARE
22ND DAY OF OCTOBER, 1997 Present:
Mr. Justice G.T. Nanavati Hon'ble Mr. Justice V.N. Khare Kailash Vasdev, Adv.
for the appellants.
Adv. for the Respondent
following Judgment of the Court was delivered:
two appellants, along with two others have been convicted for committing murder
of Ram Babu. What has been proved against them is that they formed an unlawful
assembly and in prosecution of the common object of the unlawful assembly, on
27.2.1981 at about 1.00 p.m. they armed with weapons, stopped the bus going
from Dholpur to Khuthiyana Ghat, asked the passengers to get down attempted to
drag out Ram Babu conductor of the bus and then appellant Rammo by firing two
shots from his gun and others by their weapons injured and thereby killed Ram Babu.
order to prove it case, the prosecution had examined 3 eye-witnesses PW - 1 Kedarnath,
PW - 3 Ramjilal and PW-6 Satpal Singh the driver o the bus. PW-7 did not
support the prosecution and he was required to be cross-examined by the public
prosecutor, Learned trial court did not believe PW-3 Ramjilal who was the
brother of the deceased on the ground that he was not present in the bus.
Relying upon the evidence of Kedarnath the trial court convicted Rammo (A-1)
under Section 302 IPC and others under Section 302 read with Section 49 IPC.
All the four accused applied for leave to appeal to this Court. Leave was
granted to Hari Charan (A- 3) and Siya Ram (A-4) and the application of Rammo
(A-2) and Kailashi (A-5) was dismissed.
is contended by the learned counsel for the appellants is that so far as A-3
and A-4 are concerned there is no clear evidence regarding any overt act
suggesting that they were acting in prosecution of the common object of the
unlawful assembly or that they were even members of any unlawful assembly. It
was also contended that even if they are held to be members of an unlawful
assembly, in view of absence of any evidence to prove that they had taken any
part in killing Ram Babu it cannot be said that his murder was committed in
order to achieve the object of that unlawful assembly. Therefore, their
conviction under Section that unlawful assembly. Therefore, their conviction
under Section 302 IPC read with Section 49 is not correct.
have carefully gone through the evidence of PW-1 Kedarnath. He has in clear
terms stated that the bus in which he was travelling was topped by five persons
near Faratpur. The persons who had stopped the bus were armed with weapons and Rammo
had carried a gun. After sopping the bus he had put the gun on the chest of the
driver Satpal and with a threat told him not to move the bus ahead. They had
tried to pull down the conductor by they were not successful. Thereafter
accused Rammo had fired two shots and injured him. Thereafter accused Rammo had
fired two shots and injured him. The remaining three had also assaulted him
with their weapons. After killing Ram Babu they ran away. So far as this
witness is concerned we find that he stands corroborated by the evidence of Ram
Swaroop PW-2 who had stated that at about 3.000 p.m. Kedarnath informed him about the incident. On the basis of the said
information he had immediately prepared a report and submitted the same at the
Police Station. That report also contains the names of Kedarnath and Satpal as
the persons who had seen the incident and informed the witness about it.
attempt of the defence was to show that this witness was not travelling by that
bus as he stood contradicted when he stated that he was returning after
purchasing 'Gwarsa' fertilizer whereas the bill produced by him discloses that
he had purchased urea on that day. This discrepancy in his evidence cannot be
regarded as sufficient to doubt his presence in the bus. Even though Satpal
turned hostile to the prosecution his cross-examination by the public
prosecutor also indicates that Kedarnath was with him when he went to inform Ramjilal
and that he was travelling in the bus with bags of fertilizers. Nothing has
been brought in his evidence to show that he was not travelling by that bus.
the courts below have relied on the evidence of this witness and we find that
his evidence has been rightly appreciated Once we accept the evidence of Kedarnath
it becomes clear that all the five accused were acting in prosecution of their
common object. As stated earlier they had gone to the place of incident armed
with weapons, stopped the bus, put the gun on the chest of the driver Satpal
and threatened him to shoot as if he drove the bus ahead. They had caught hold
of Ram Babu and tried to drag him our. Rammo had fired two shots a him and
other accused had assaulted him with other weapons. They had run away together.
Therefore, we are of the opinion that the appellants were rightly convicted
under Section 302 IPC read with Section 49. The appeals is, therefore,
appellants are directed to surrender to custody to serve out the remaining part
of their sentence. The State is also directed to take him in custody and take
appropriate steps for the said purpose.