Rajasthan  Insc 507 (3 May 2007)
S. H. Kapadia & B. Sudershan Reddy
CRIMINAL APPEAL NO. 664 OF 2007 (Arising out of S.L.P. (Crl) No.4446 of
2006) KAPADIA, J.
(1) Leave granted.
(2) This criminal appeal by grant of special leave is directed against
impugned judgment dated 13.1.06 delivered by Rajasthan High Court at Jaipur in
Criminal Appeal No.660/04 confirming the conviction under Section 148 IPC
imposed by Addl. District and Sessions Judge, Jaipur, in Session Case
(3) On 1.9.1989 at 9.20 pm Uttam Prakash (pw.4) lodged an FIR at Police
Station Ashok Nagar, Jaipur, in which he claimed that he and his father Ram
Kishan Khandelwal (since deceased) had left their house, situated at A-10,
Sikar House Area, for his uncle's house at C-10, Madan Kunj, Prithvi Raj Road,
Jaipur, when at 9 pm while the deceased was sitting on the bed talking with
PW.4's aunt and uncle, 10 to 12 persons entered the room and surrounded the
deceased. These 10 to 12 persons were armed with knives, swords and pick-axes.
PW.4 was threatened and told not to shout. PW.4 in his FIR stated that in
his presence the accused (appellant herein) stabbed his father, Ram Kishan
According to the FIR, when PW.4's uncle raised an alarm the appellant herein
along with others fled. Ram Kishan Khandelwal died. According to the FIR, there
was enmity between Ram Kishan Khandelwal on one hand and Hanuman, Hanif,
Chhitar and Ramesh Shanker on the other hand. On the basis of the said report investigation
commenced. The case was registered for offences under Sections 147, 149 and 302
of Indian Penal Code (for short, 'IPC'). On the basis of the information given
by the appellant herein, weapons of offence and blood soaked clothes were
recovered. PW. 25, a Judicial Magistrate, conducted identification parade of
the appellant herein and others. The police thereafter submitted their charge-
sheet, inter alia, against the appellant herein. 31 witnesses were examined. 74
documents were produced by the prosecution. During the course of the trial it
was revealed that Ram Kishan Khandelwal and his family used to live at Sikar
House Area in Jaipur. Hanuman and Chhitar were his neighbours. They were on
inimical terms. There was property dispute. The bathroom of Hanuman and Chhitar
was demolished by Jaipur Development Authority. Hanuman and Chhitar were under
the impression that the bathroom was demolished on the complaint of Ram Kishan
Khandelwal. Hanuman and Chhitar sold their house to Hanif (one of the co- accused).
Prior to his death, Ram Kishan Khandelwal had lodged an FIR with Police Station
Shastri Nagar, Jaipur, in which he had asked for police protection. Ram Kishan
Khandelwal was also an accused in many criminal cases. These cases were
pending. According to the prosecution, Hanuman, Chhitar and Hanif entered into
a criminal conspiracy for the murder of Ram Kishan Khandelwal. According to the
prosecution, however, the appellant herein along with Aziz, Iqbal, Mahendra
Singh, Hamid and Firoz committed the actual murder.
Therefore, according to the prosecution there were two groups of persons,
the first set/group of persons entered a criminal conspiracy but the actual
murder was done by Iqbal, Aziz, Raju Naik (appellant herein), Mahendra Singh,
Hamid and Firoz.
(4) In this case, we are concerned with the conviction of Raju Naik
(appellant herein). He was charged for offences under Sections 302, 120B, 148,
149 and 460 IPC.
(5) Two issues arise for determination in this criminal appeal. The first
concerns the merits of the case and the second concerns an argument advanced on
behalf of the appellant that the appellant has completed the sentence of three
years on 8.3.2007 as he was convicted for offence under Section 148 IPC which
has been disputed by the State on the ground that the appellant stood convicted
under Section 302 IPC and sentenced to life imprisonment.
(6) On the merits of the case, we find that there is no reason to disbelieve
Uttam Prakash (pw.4), the son of Ram Kishan Khandelwal (deceased). The incident
took place on 1.9.89 around 9 pm when the deceased was sitting on the bed.
Uttam Prakash (pw.4) and his father, Ram Kishan Khandelwal, had gone for dinner
at his uncle's place at C-10, Madan Kunj, Prithvi Raj Road, Jaipur. When the
deceased was sitting on the bed Uttam Prakash (pw.4) saw 10 to 12 persons
entering the room and surrendering Ram Kishan Khandelwal. They were armed with
knives, swords and pick-axes. Uttam Prakash (pw.4) saw the deceased being
stabbed. Uttam Prakash (pw.4) has deposed that it was dinner time, that the
deceased was sitting on the bed whereas he was in conversation with his aunt.
Both the courts below have come to the conclusion, placing reliance on the
post- mortem report, that there was an injury on the chest of the deceased and
that the knife and the clothes recovered vide Ex.P.32 had human blood. The
cause of the death, as given in the post-mortem report, was syncope. There was
one more witness Rattan Devi (pw.20) but she could not identify the appellant
in the identification parade.
However, both the courts below have come to the conclusion, on the basis of
the evidence of pw.4 that the appellant herein (Raju @ Raju Kumar) was a member
of the unlawful assembly; that he carried the knife; that he had entered the
room where the deceased was sitting on the bed and that Ram Kishan Khandelwal
(deceased) was stabbed to death by the appellant herein. In the circumstances,
we do not find any infirmity to the extent of the conviction of the appellant
herein under Section 148 IPC.
(7) The question is : whether this Court in special leave petition could
convict the appellant under Section 302 IPC without any appeal from the State.
(8) Now coming to the second issue, we find that in this case seven out of
ten accused were convicted by Additional District and Sessions Judge, No.1,
(Fast Track) Jaipur City, Jaipur, for different offences.
Appellant herein was charged under Section 148, 302, 120B and 460 IPC.
However, he has been convicted under Section 148 IPC. According to the trial
court the cause of death is syncope. According to Butterworth's Medical
Dictionary, 'Syncope' is a temporary loss of consciousness caused by a fall in
(9) We also quote hereinbelow paras '65' and '66' of the said judgment which
read as follow:
"65. From the above decision I have reached the conclusion that out of
all the accused, the accused No.(1) Abdul Aziz s/o Salamuddin, accused No.2
Raju @ Raj Kumar s/o Mali Ram, accused No.3, Durga Das @ Bhaya s/o Bhanwar Lal
have committed punishable crime u/s 460, 148 and 302 of Indian Penal Code for
which their crime is hereby proved and the accused No.4, Feroz @ Shreya s/o
babu Khan has committed punishable crime under the Indian Penal Code Section
148, 302/149, 460 for which their crime is hereby proved and the accused No.5
Hanuman Sahai s/o Mahadev Prasad, accused No.6 Chhitar Mal s/o Mahadev Prasad,
accused No.7 Mohd. Haneef s/o Abdul Hakim have committed punishable crime u/s
302/120B of the Indian Penal Code for which their crime is hereby proved and
the accused No.8 Sayeed s/o Abdul Rasheed is acquitted from the allegations of
punishable crime under Section 302 read with Section 149, 148, 120B and 460 of
Indian Penal Code.
66. This case is a matter of murder, conspiracy to murder and co-operation
in murder for which it would be justified to punish the accused with the
minimum punishment and for rest of the crime the accused were heard, for which
they are punished with rigorous imprisonment as mentioned below:
SENTENCE Therefore, the accused mentioned below on being found guilty under
Section as mentioned against each under Indian Penal Code are punished as
Name of the Accused Section Punishment Penalty Illegible (sic) 1.
Abdul Aziz 460 Ten years 500/- 3months 2.
Raju @ Raj Kumar 148 Three years 200/- 1 month 3.
Durga Das @ Bhaya 302 Life Imprisonment 1000/- 6months 4.
Feroz @ Sherya 460 Ten years 500/- 3months 148 Three years 200/- 1 month
302/149 Life Imprisonment 1000/- 6months 5.
Hanuman Sahai 302/120B Life Imprisonment 1000/- 6months 6.
Chhitar Mal - do - - do - - do - - do - 7.
Haneef - do - - do - - do - - do - The accused in this case are on bail,
hence for getting the punishment they are being taken in the judicial custody.
The punishment warrant of the accused may be prepared as per above and sent to
the Central Jail, Jaipur. Punishment of all the crime will be simultaneous. In
this case, the seized item of proof will be destroyed after expiry of six
months of the appeal period. The file after recording of the decision may be
admitted in the office. The accused with the proven crime may be provided with
a copy of the decision without any cost."
(10) If one reads para '65' with para '66', we find that Abdul Aziz has been
accused No.1 and he is convicted under Section 460 IPC. This is clear from para
'65'. It is in consonance with the chart in para '66'. Similarly, the appellant
(Raju @ Raj Kumar) was accused No.2 and he has been convicted under Section 148
IPC. This is clear from para '65'. To this extent, para '65' is in consonance
with para '66' (chart annexed thereto). Durga Das was accused No.3 and he has
been convicted under Section 302 IPC both under paras '65' and '66'. It appears
from the reading of para '65' that accused No.1 was convicted under Section 460
IPC, accused No.2 was convicted under Section 148 IPC and accused No.3 was
convicted under Section 302 IPC respectively. The word "respectively"
is omitted. Be that as it may, the State did not go in appeal against the order
of the trial court convicting Raju @ Raj Kumar (appellant herein) for
convicting him under Section 302 IPC in addition to his conviction by the trial
court under Section 148. Even the High Court, by the impugned judgment, has
merely dismissed the appeal filed by the appellant herein upholding the
conviction of Raju @ Raj Kumar under Section 148 IPC. It is argued before us,
on behalf of the State, that we should convict the appellant herein under
Section 302 IPC, particularly, when the reasoning given in the concurrent
findings indicate that the appellant herein had stabbed the deceased in the
chest with the knife. In our view, such a request cannot be granted.
Offence under Section 148 IPC is distinct and separate from the offence
under Section 302 IPC. The State should have filed an appeal seeking conviction
of the appellant under Section 302 IPC apart from his conviction under Section
148 IPC. This has not been done in the present case. The offence of rioting
with deadly weapon under Section 148 IPC is separate and distinct from the
offence under Section 302 IPC.
Moreover, according to the trial court, the cause of death is syncope.
(11) In the case of Satbir v. Surat Singh and others AIR 1997 SC 1160, the
accused was sentenced under Section 302/148 IPC and, therefore, this Court took
the view that separate sentence under Section 148 was not necessary.
(12) In the case of Nanda Kishore Mohanty v. The State of Orissa AIR 1961
Orissa 29, it has been held that once a charge under Section 148 IPC was framed
the Magistrate must say whether the person charged is convicted or acquitted.
In that case, though the petitioner was charged under Section 148 IPC, the
judgment of the Magistrate was silent as to whether petitioner was guilty or
not. The Additional Sessions Judge assumed that the petitioner stood convicted
under Section 148 IPC altered the conviction to Section 147 IPC. In that case,
the petitioner was also charged under Section 455/149 IPC and under Section
323/149 IPC. In that connection, it was held as under :- "(6) Another
serious mistake committed by the Magistrate was his omission to mention
expressly in his judgment as to whether he convicted the petitioner under
Section 148, I.
P. C., or not. Once a specific charge under that section was framed, the
Magistrate must expressly say whether he convicts the accused of that offence
or whether he acquits him of that offence. Though the petitioner was charged
under Section 148, the judgment of the Magistrate is silent as to whether that
charge was proved or not. The learned Sessions Judge also committed an error by
overlooking this mistake on the part of the trying Magistrate and assuming that
there was a conviction under that section by the Magistrate and that he would
be justified in altering it to a conviction under Section 147, I.
P.C. It is indeed unfortunate that in cases of this type where sentences of
imprisonment have been passed the two lower courts should have committed such
obvious mistake, presumably through negligence.
(7) The net result therefore is that though the petitioner was charged under
Section 148, I. P. C., the trying Magistrate has not passed any order, either
of conviction or acquittal in respect of that charge and the Sessions Judge has
convicted him under Section 147, I. P. C.
The omission of the trying Magistrate to convict the petitioner under
Section 148, I. P.
C., must in the circumstances be held to mean that he was acquitted of that
charge. It is immaterial whether this omission was due to oversight or any
other reason. Once there is, thus, an acquittal of the petitioner of the charge
under Section 148, I. P. C., the Sessions Judge has no jurisdiction to alter
the conviction to one under Section 147, I. P. C.
The State should have moved the High Court for setting aside the order of
acquittal in respect of the charge under Section 148. But this they did not do.
(8) The acquittal of the petitioner in respect of the offence under Section
148, I. P.
C., will also affect his conviction under Section 455/149, I. P. C., and
323/149, I. P. C. The conviction for these two offences is based on the
assumption that the petitioner was a member of the unlawful assembly but his
acquittal in respect of the charge under Section 148, I. P. C., must
necessarily lead to the inference that he was not a member of such an assembly.
Hence, his conviction under Sections 455 and 323, I. P. C., read with Section
149, I. P. C., must be set aside.
(9) There seems some force in the contention of the learned Standing Counsel
for the State of Orissa, that the initial mistake was committed by the trying
Magistrate through oversight, and he suggested that the case might be remanded
to the trying Magistrate for recording a proper order either of conviction or
of acquittal in respect of the charge against the petitioner under Section 148,
I. P. C.
But I am not satisfied that at this stage it will be proper to remand the
case for the aforesaid purpose. The incident took place more than four years
ago, i.e., on 6-10-1955, and the petitioner has been sufficiently harassed
because the appeal was first heard by the Addl. Sessions Judge but the judgment
was set aside by the High Court in Criminal Revision and the appeal was reheard
by the Sessions Judge of Cuttack.
It will not be proper at this belated stage to revive the whole proceeding
and subject the petitioner to further harassment of a conviction by the trying
Magistrate and also possibly of an appeal before the Sessions Judge. The
mistake was partly that of the trying Magistrate and partly that of the
prosecuting officers. The latter should have noticed the omission in the
judgment of the trying Magistrate and then taken steps either by way of
revision to this Court or by means of an appeal against acquittal, to get the
(10) For the aforesaid reasons, I would allow this revision petition, set
aside the conviction and sentence passed on the petitioner by the learned
Sessions Judge, and acquit him. He should be set at liberty forthwith."
(13) Before concluding we may state that one of the arguments advanced on behalf
of the State was that no prejudice would be caused to the appellant if he was
to be convicted under Section 302 IPC. It was contended on behalf of the State
that if one goes through the entire judgment of the trial court it is clear
from the reasoning that the trial court had found the appellant guilty of
murder under Section 302 IPC and that the appellant has never made any
grievance against the said finding. It is submitted on behalf of the State that
even in the special leave petition, before this Court, this particular ground
has not been taken by the appellant. We find no merit in this contention. We
cannot convict the appellant under Section 302 IPC in the appeal preferred by
the appellant herein. If we were to do so it would amount to travesty of
justice. We cannot convict the accused under Section 302 without the State
filing an appeal in that regard. In the present case, the State did not move
the High Court in appeal against the conviction under Section 148 and nor did
the State seek enhancement of punishment before the High Court in appeal.
(14) For the above reasons, we find that the appellant herein was convicted
under Section 148 IPC; that, he was not convicted under Section 302 IPC; that
he was sentenced for three years with fine in addition, one month sentence in
default of fine; and that Raju @ Raj Kumar (appellant herein) has served
sentence for three years commencing from 9.3.2004 ending on 8.3.2007.
We are not sure as to whether he has paid the fine of Rs.200/-, if not, he
shall pay the fine forthwith. On payment of fine he should be set at liberty
forthwith. If he fails to pay Rs.200/- as fine then he will have to serve the
sentence of one month in default.
(15) Accordingly, the appeal is allowed.