& Ors Vs. State of Rajasthan  INSC 699 (2 September 1997)
ANAND, K. RAMASWAMY
Dr. Justice A.S. Anand Hon'ble Mr. Justice K. Venkataswami Shanti Swarup
Sharma, Adv.(NP), for the appellants K.S.
Adv. for the Respondents O R D E R The following order of the Court was
alongwith five others were tried for offences under sections 302, 148 IPC and
some minor offences. The learned Sessions Judge acquitted five co- accused of the
appellants but convicted and sentenced them for offences under section 302/148
IPC . They filled an appeal in the High Court which was dismissed by the
Division Bench of the High Court on 6th May, 1986. By special leave the appellants
have called in question the judgment of the High Court dated May 6, 1986.
Short, the prosecution case is that on 14th November, 1981 at about 10.00 p.m. when the complainant party was taking its bullock cart
through a path way of the abadi to village Galia Kua, the cart suffered a
sudden and violent jerk. it was noticed that a ditch had been freshly dug in
the path way, though the complainant party had not noticed the existence of any
such ditch earlier on their way to the forests in the evening. As soon as the
bullock cart suffered a jerk, 10 to 12 persons came out from house of Ranjita
and Hira. They were armed with sticks and axes. They were armed with sticks and
axes. They assaulted Bhura, Badri, Dhanna and Ramphool. Ramphool and dhanna,
however, escaped unhurt. Bhura succumbed to the injuries. Badri also received
injuries. Ramphool, PW.3, went to the police station and lodged the First
Information Report on 15th
November, 1981 at
about 6.45 a.m. The investigation was taken in hand
and ten persons including five appellants were sent up for trial. According to
the prosecution case the assailants had mounted the attack on the complainant
party and inflicted injuries on Bhura and Badri with a view to take revenge for
a violent incident which took place in 1973 when Ranjita, appellant, suffered
fracture on his leg which led to the filing of criminal prosecution against Bhura
and Ramphool. As many as 11 witnesses were examined by the prosecution at the
trial. Dr. Bansal, PW, conducted the postmortem examination on the dead body of
Bhura on 15th November,
1981 at 2.30 p.m. He noticed as many as 11 injuries on the dead body.
Out of these injuries eight were incised wounds and others were injuries caused
by blunt weapon. Out of the incised wounds, there were some injuries on the legs
and the left thumb and the remaining three injuries were on the head of the
deceased. Badri, PW, was also examined and nine injuries were found on his
was no fracture of any bone, though some of his injuries were described as
grievous injuries. At the trial, Dr. Bansal deposed that the injuries found on
the deceased were sufficient to cause death in the ordinary course of nature.
During cross examination however Dr. Bansal admitted that apart from injuries
which were caused by incised weapons there were other injuries also on the body
of the deceased and that "other injuries could also have resulted in his
death". The prosecution also have resulted in his death". The
prosecution also relied upon recoveries of some weapons alleged to have been
effected on the basis of the statements made by the appellants and others under
section 27 of the evidence Act on 22nd November, 1981 in support of its case.
trial court found that there were two sets of accused in the case, one set
belonging to Kumhar caste while the other belonging to the Gujar Community. The
appellants belong to the Gujar community. The trial Court found that the
evidence of the eye witnesses who had implicated not only the appellants but
also five others belonging to the Kumhar caste could not be believed fully and
consequently gave benefit of doubt to five accused belonging to the Kumhar
caste and acquitted them.
trial court after appreciating the evidence, in the case of the appellants,
opined that there was no evidence on the record to show any pre-meditation on
the part of the appellants. it was also concluded that the prosecution had
failed to establish as to who among the 10 accused, had stuck the fatal blow
resulting in the death of Bhura. The learned Sessions judge further observed
that "It remains a mystry who the killers of Bhura are". This
observation was made in the context of as to who had caused the fatal injuries,
particularly when according to the prosecution case itself none of appellants
was armed with a lathi and the deceased had suffered a few blunt weapon
injuries. We find that the prosecution has established the complicity of the
appellants with the crime but the question, however, is about the nature of
offence committed by them.
with the actual assault, the learned Sessions judge has observed :
As Bhura and Ramphool had broken the leg of Ranjeeta and they were going to 'Foota
Dungaar' on bullock cart to fetch wood from there, the Gujar accused must have
intended to attack them by obstructing the cart and inflicting injuries to them
in that situation." (Emphasis ours) The trial court went on to observe:-
"As sufficient evidence is not available regarding the fact that all the
five accused involved in causing the death of the deceased Bhura and that all
the five accused had come out from one 'pole", it cannot be said that they
had formed an unlawful assembly to kill the deceased Bhura before the incident.
after the start of "marpit" they (accused) inflicted grievous hurt(to)
deceased Bhura." So far as the recoveries are concerned the trial court
rightly did not believe the same and observed:- "I have, therefore, no
hesitation to conclude that all the ten accused were arrested on 15.11.81, and
that the evidence regarding their arrest on 21.11.1981, and disclosure
statements and recoveries of weapons on 22.11.1981 is all fabricated and false.
The I.O. seems to have acted in this manner in his zeal to strengthen the
prosecution case." However, inspite of recording all the above findings,
the trial court still convicted the appellants for offences under Section 302
IPC and Section 148 IPC and the High Court also confirmed their conviction and
sentence. In our opinion the approach of both the courts below on the question
of nature of offence was faulty and erroneous.
basis of the findings of the learned trial court, as noticed above, it is quite
obvious that the intention of the appellants could only have been to cause
injuries to the deceased by obstructing his bullock cart and they did not share
any common intention or object to cause the death of the deceased. Indeed by
causing injuries with an axe it could be said that the appellants should have realised
that the injuries were likely to cause his death but that would only bring the
case of the appellants under Section 304 Part II IPC and not one under Section
view of the findings recorded by the learned Sessions judge and the material on
the record, we are unable to ascribe to the finding that the appellants'
intention was to cause death of Bhura deceased. The finding betrays the
observation of the trial court as noticed above. The medical evidence also does
not support the ultimate finding recorded by the trial court and upheld by the
high Court. The offence in the established facts and circumstances of the case
in the case of the appellants would only fall under Section 304 Part II IPC
read with Section 149 IPC and not under Section 302 IPC. Indeed no specific
charge indicating the applicability of Section 149 IPC was framed, but all the ingriedients
of Section 149 IPC were clearly indicated in the charge framed against the
appellants and as held by the Constitution Bench of this Court in Willie
(William) Slaney vs. State of Madhya Pradesh : AIR 1956 SC 116, the omission to
mention Section 149 IPC specifically in the charge is only an irregularity and
since no prejudice is shown to have been caused to the appellants by that
omission it cannot affect their conviction.
opinion this appeal deserves to succeed to the extent that the offence
committed by the appellant would not fall under Section 302 IPC. We, therefore,
set aside the conviction and sentence of the appellants for the offence under
Section 302 IPC and instead convict them for an offence under Section 304 Part
II IPC read with Section 149 IPC and impose a sentence of 5 years rigorous
imprisonment upon them. The conviction and sentence of the appellants for the
offence under section 148 IPC is, however, maintained.
appellants are on bail. Their bail bonds are cancelled.
shall be taken into custody to undergo remaining part of the sentence, if any.