NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1915 OF 2008
Raju @ Rajendra & Anr. ... Appellant(s)
Versus
State of Rajasthan ... Respondent(s)
WITH
CRIMINAL APPEAL NO. 1897 OF 2008
J U D G M E N T
RANJAN GOGOI, J.
Being directed against the common judgment dated 16th March, 2007
passed by the High Court of Rajasthan we had heard both the appeals
analogously and the same are being disposed of by this common judgment.
2. Criminal Appeal No. 1915 of 2008 has been filed by accused Raju @
Rajendra and accused Pappu @ Ranjeet Singh who have been convicted under
Sections 302 and 307 read with Section 34 of the Indian Penal Code and
sentenced to undergo, inter alia, RI for life.
Criminal Appeal No. 1897 of
2008 has been filed by the State of Rajasthan against the same judgment
dated 16th March, 2007 by which the remaining four accused have been
acquitted of all the charges brought against them including the charge
under Section 302 read with Section 149 IPC.
3. The short case of the prosecution is that on 4th April, 2000 at about
4.30 p.m. PW-13 Mahaveer lodged an FIR (Ex. P-23) in the Dei police
station, District Boondi stating that at about 2 – 2.30 p.m. of the same
day while he was sitting in the field of one Mukhtyar Singh (deceased)
waiting for the thresher, the convicted as well as the acquitted accused
(six in all) alongwith another person (who had absconded) came to the spot
armed with different kinds of dangerous weapons.
In the FIR it was stated
that as soon as the accused persons reached the spot, while accused Pappu @
Ranjeet Singh assaulted Mukhtyar Singh with an axe on his head, accused
Raju @ Rajendra assaulted the aforesaid person with a sword. Acquitted
accused Bachchan Singh reportedly gave lathi blows to Mukhtyar Singh
whereas acquitted accused Balwant Singh, his wife Shanti Bai @ Jaswant Kaur
and daughter Gurjeet Kaur had pointed country made pistols at Mukhtyar
Singh and had exhorted the other accused to kill/eliminate Mukhtyar Singh.
In the FIR it was further mentioned that
the first informant (PW-13) tried
to intervene but he was also assaulted by accused Pappu on his head with an
axe and by the accused Raju with a sword on his right arm.
Due to the
assault committed by the accused on Mukhtyar Singh the aforesaid person
lost consciousness and though he was taken to the hospital he passed away
shortly after the incident.
In the first information report, it was
further mentioned that two other persons, i.e., Bittoo (PW-19) and Jamnalal
(PW-1) had witnessed the occurrence.
4. On the basis of the aforesaid FIR lodged by PW-13, police registered
a case and investigated the same. On completion of the investigation
chargesheet was submitted against 7 persons in all, including the convicted
and the acquitted accused. Thereafter, the case was committed for trial
to the Court of Sessions at Boondi where charges under different sections
of the Indian Penal Code including Section 302 read with Section 149 were
framed. As the accused persons denied the charges and wanted to be tried
the prosecution examined as many as 21 witnesses and also exhibited a large
number of documents.
Thereafter at the conclusion of the trial while two
of the accused i.e. Raju @ Rajendra and Pappu @ Ranjeet Singh were found
guilty of the commission of the offence under Section 302, 307, 325, 324
and 148 IPC the remaining accused (acquitted accused) were found guilty of
the charge of commission of the same offences with the aid of Section 149
IPC.
For commission of the offence under Section 302 IPC each of the
accused had been sentenced to undergo rigorous imprisonment for life. The
sentences imposed for commission of the lesser offences, as noticed above,
would not require any specific mention as the same were to run concurrently
with the sentence of imprisonment for life.
5. Aggrieved by the aforesaid conviction recorded by the learned Trial
Court and the sentences imposed, all the six accused had filed a common
appeal before the High Court of Rajasthan challenging the order passed by
the learned Trial Court.
The High Court by its judgment and order dated
16th March, 2007 altered the conviction of the two convicted accused, i.e.,
Raju @ Rajendra and Pappu @ Ranjeet Singh to one under Sections 302 and
307 read with Section 34 of the Indian Penal Code while acquitting them of
the remaining charges.
The remaining four accused were acquitted of all the
charges.
It is against the aforesaid judgment of the High Court that
Criminal Appeal No. 1915 of 2008 has been filed by the two convicted
accused,
whereas Criminal Appeal No. 1897 of 2008 has been filed by the
State against the acquittal of the remaining four accused.
6. We have heard Ms. Aishwarya Bhati, learned Amicus Curiae for the
appellants in Criminal Appeal No. 1915/2008, Mr. J.P. Dhanda, learned
counsel for the respondents in Criminal Appeal No. 1897/2008 and Mr.
Jasbir Singh Malik, Addl. Advocate General for the State of Rajasthan.
7. Ms. Aishwarya Bhati, learned Amicus Curiae had taken us through the
evidence on record, particularly, the depositions of the eyewitnesses
examined in the case, i.e. PW-1, PW-13 and PW-19. Learned Amicus Curiae had
also placed before us the judgments passed by the learned Trial Court and
the High Court as well. On the other hand, Mr. Jasbir Singh Malik, learned
Addl. Advocate General appearing for the respondent-State of Rajasthan in
the appeal filed by the convicted accused had submitted that the evidence
of all the three eyewitnesses is clear, cogent and consistent insofar as
the involvement of the said accused is concerned. Placing the evidence of
PW-16 Dr. Gopal Lal Nagar, who had conducted the postmortem of the deceased
and had also attended to the injuries sustained by the injured eyewitness
PW-13, learned counsel had submitted that the medical evidence adduced in
the present case fully corroborates the narration of events unfolded by
witnesses examined by the prosecution. According to the learned State
counsel, no error or infirmity can be found in the judgment of the High
Court so as to warrant a reversal of the finding of guilt recorded against
the two convicted accused.
8. Insofar as the connected appeal (Crl. Appeal No. 1897/2008) against
the acquittal of the four accused is concerned, Mr. Jasbir Singh Malik,
learned counsel appearing for the appellant-State had vehemently contended
that the evidence and materials brought on record by the prosecution
clearly go to show that all the six accused had formed an unlawful assembly
the common object of which was to cause the murder of the deceased.
According to the learned counsel, such a conclusion reasonably follows from
the manner in which the accused persons armed with dangerous weapons had
gone to the field of Mukhtyar Singh on the day of the occurrence. In such
a situation, according to the learned counsel, apart from the individual
overt acts which are attributable to accused Raju @ Rajendra and Pappu @
Ranjeet Singh, the other accused would be liable under Section 149 IPC for
the acts committed in furtherance of the common object of the unlawful
assembly, which undoubtedly was to commit the murder of Mukhtyar Singh. It
is, therefore, submitted that the acquittal of the aforesaid four accused
by the High Court is wholly untenable and needs to be reversed.
9. Opposing the aforesaid contentions advanced by the learned counsel
for the appellant State of Rajasthan, Mr. J.P. Dhanda, learned counsel for
the acquitted accused had submitted that even if it is to be assumed that
an unlawful assembly had been formed by the six accused persons, it cannot
be said that the common object of the said assembly was to cause murder of
the deceased Mukhtyar Singh, inasmuch as, though, according to the
prosecution story, three of the acquitted accused were armed with country
made pistols and had, in fact, kept the same pointed at the deceased, yet,
none of the firearms were used or fired. In such circumstances, according
to the learned counsel, even if the prosecution story as a whole is to be
accepted the four accused in question cannot be made liable for the offence
of murder with the aid of Section 149.
10. We have considered the submissions advanced on behalf of the rival
parties. We have also given our indepth consideration to the evidence on
record, particularly the depositions of the three eyewitnesses, and the
medical evidence adduced by PW-16. Insofar as accused Raju @ Rajendra and
Pappu @ Ranjeet Singh is concerned, we have not been able to find any
inconsistency, much less any material contradiction, in the evidence of PWs
1, 13 and 19. All the aforesaid three eyewitnesses have given a vivid
description of the events leading to the death of Mukhtyar Singh clearly
demonstrating the role of the accused Raju @ Rajendra and Pappu @ Ranjeet
Singh in causing the injuries sustained by the deceased on the head.
According to PW-16, Dr. Gopal Lal Nagar, the internal injuries suffered by
the deceased as a result of the assault on the head was ultimately
responsible for the death of Mukhtyar Singh. The description of the events
by the eyewitnesses would go to show that the attack on the head of the
deceased by the two convicted accused were in quick succession. The manner
and circumstances in which the injuries were inflicted, as already
discussed, is capable of sustaining an inference that both the accused Raju
@ Rajendra and Pappu @ Ranjeet Singh had shared the common intention to
cause the death of Mukhtyar Singh thereby rendering them liable under
Section 302 read with Section 34 IPC, as held by the High Court. A similar
conclusion with regard to the liability of the two accused under Section
307 IPC for the assault and injuries caused to PW-13 reasonably follows
from a reading of the evidence of the eye witnesses (PWs 1, 13 and 19) and
the medical evidence on record (PW 16). We, therefore, do not find any
basis whatsoever to disagree with the view taken by the High Court insofar
as the two convicted accused are concerned. Consequently, Criminal Appeal
No. 1915 of 2008 is dismissed and the conviction as well as the sentence
recorded against the accused Raju @ Rajendra and Pappu @ Ranjeet Singh by
the High Court is affirmed.
11. Insofar as the acquittal of the four accused, which is the subject
matter of challenge in Criminal Appeal No. 1897 of 2008, is concerned, the
first question that has to be determined is
whether the aforesaid four
accused alongwith the two convicted accused had formed an unlawful assembly within the meaning of Section 141 of the Indian Penal Code so as to render them vicariously liable for the offence(s), if any, committed by the members of the unlawful assembly either in furtherance of the common object
of the assembly or if the offence committed was or could have been known to be likely to be committed in pursuance of such common object of the unlawful assembly.
12. From the evidence of PW-2 Avtar Singh (son of deceased) as well as PW-
4 Ram Niwas (declared hostile) it transpires that the deceased and the
party of the accused had a dispute over land and, in fact, some of the
accused had made attempts to encroach upon land belonging to the deceased.
All the three eyewitnesses, namely, PW-1, PW-13 and PW-19, as already
noticed, had
unequivocally and categorically stated in Court
that the six accused persons had come together to the field of deceased Mukhtyar Singh
armed with dangerous weapons including fire arms.
If this is the manner in
which the accused persons had come to the spot it cannot be said that the
accused had not formed an unlawful assembly within the meaning of the said
expression as appearing in Section 141 of the Indian Penal Code.
While
membership of an unlawful assembly itself is an offence under Section 143 IPC, use of force by members of the unlawful assembly gives rise to the offence of rioting which is punishable either under Section 147 or Section 148 IPC.
Membership of the 4 accused in the unlawful assembly and use of
force with dangerous weapons is borne out by the evidence on record.
The
said facts would make the acquitted accused liable for the offence under
Section 148 of the Indian Penal Code.
However, their liability under any
other provision of the Indian Penal Code would depend on what can reasonably be understood to be the common object of the assembly in the present case.
13. The availability of fire arms in the hands of three of the acquitted
accused, namely, Balwant Singh, his wife Shanti Bai @ Jaswant Kaur and
daughter Gurjeet Kaur
but absence of any fire therefrom or use thereof is a
clear pointer to the fact that the common object of the unlawful assembly
was definitely not to cause the murder of the deceased Mukhtyar Singh.
Had
the same been the object the fire arms available with the accused would
have been surely used.
However, from the depositions of PW-13 and PW-19 as well as from the
evidence of PW-16 it clearly transpires that PW-13 had suffered several
injuries due to the assault committed on him by the members of the unlawful
assembly.
Having regard to the injuries suffered by PW-13, as evident from
the evidence of PW-16, and our finding that the accused persons had formed
an unlawful assembly,
we are of the view that the four acquitted accused
should also be held liable under Section 324 read with Section 149 IPC.
14. Pursuant to the directions issued by this Court at the conclusion of
the hearing of the appeals, learned Addl. Advocate General of the State of
Rajasthan has filed before this Court details of the custody undergone by
the four acquitted accused till date.
From the aforesaid material placed
before this Court it appears that
while acquitted accused Gurjeet Kaur had
undergone a total of 5 months 8 days of RI accused Shanti Bai @ Jaswant
Kaur had undergone a similar period of custody of 5 months 8 days.
On the
other hand Balwant Singh had undergone 7 months 29 days of rigorous
imprisonment whereas accused Bachchan Singh had undergone custody of 1 year
4 months and 21 days.
15. Having regard to the totality of the facts of the case,
we are,
therefore, of the view that the aforesaid four accused should be held
liable for the offences under Sections 148 and 324 IPC read with Section
149 IPC.
Insofar as the sentence is concerned, we are of the view that
having regard to the period of custody already undergone by the aforesaid
four accused the ends of justice would not require them to suffer any
further period of custody and sentence of imprisonment already suffered by
the said accused would be adequate.
Consequently, insofar as the Criminal
Appeal No. 1897 of 2008 is concerned, we partly allow the same and modify
the order of the High Court in terms of what has been held above.
16. Both the appeals shall stand disposed of accordingly.
...…………………………J.
[P. SATHASIVAM]
.........……………………J.
[RANJAN GOGOI]
New Delhi,
January 11, 2013.
