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Monday, December 14, 2015

there was no common object on the part of other members of the unlawful assembly with accused Pohla @ Sat Narain to commit murder of Rajesh (deceased).=Accordingly, in the light of decision in the appeal of co-accused Daya Kishan, conviction and sentence of the appellant recorded by the trial court in respect of offence punishable under Section 302 read with Section 149 IPC is set aside


                        IN THE SUPREME COURT OF INDIA


                      CRIMINAL APPEAL NO. 1475 OF 2015
               (Arising out of S.L.P. (Crl.) No. 8281 of 2007)

Raj Singh @ Raja                             … Appellant


State of Haryana through Secretary
Ministry of Home Affairs, Chandigarh         …Respondent

                               J U D G M E N T

Prafulla C. Pant, J.

      This appeal is directed against judgment and order dated 21.8.2006  in
Criminal Appeal No. 152-DB of 2004, passed by the High Court of  Punjab  and
Haryana, whereby said appeal has been  dismissed  affirming  the  conviction
and  sentence  awarded  against  accused/appellant  Raj  Singh  @  Raja,  by
Sessions Judge, Sonepat,  in  Sessions  Case  No.  121  of  1999/2003  under
Sections 148, 302, 307, 323 read with  Section  149  of  Indian  Penal  Code

We have heard learned counsel for the parties  and  perused  the  papers  on

Brief facts of the case are that PW-4 Bhale Ram  (complainant)  owned  shops
near bus stop of village Jagsi.  In one of  the  shops  liquor  used  to  be
sold,  and  the  other  shops  were  being  used  as  tea  stalls   by   the
complainant’s son PW-10 Sanjay  and  nephew  Rajesh  (deceased).   A  vacant
piece of land adjoining the shops was  also  used  by  the  complainant  for
tethering the cattle in respect of which a civil  litigation  was  going  on
between him and Daya Kishan Bairagi (one of the accused).

On 30.11.1998 at about 7.00 p.m. when PW-10  Sanjay  and  Rajesh  (deceased)
were in the shop, complainant’s  daughters  PW-11  Kamlesh  and  Meena  were
unloading the paddy straw from a cart at the vacant piece of land.  At  that
point of time accused Kishan (son of Daya  Kishan)  came  to  the  shop  and
asked Sanjay to deliver some goods without payment of the price.   On  this,
a quarrel ensued and Kishan threatened  Sanjay  of  dire  consequences.   He
left the shop and soon  thereafter  came  back  along  with  other  accused,
namely, Pohla @ Sat Narain, Daya Kishan, Ajmer  and  the  present  appellant
Raj Singh @ Raja. Pohla @ Sat Narain was armed with  gun,  Ajmer  was  armed
with ‘Jaili’ and remaining three, namely, Daya Kishan, appellant  Raj  Singh
@ Raja and Kishan were armed with lathies.  Pohla  opened  fire  at  Rajesh,
who fell down.  In the meantime, complainant and his daughters  Kamlesh  and
Meena intervened to rescue Sanjay and Rajesh.  Daya Kishan gave a blow  with
lathi on the person of the complainant.  Ajmer and Kishan  also  gave  blows
with Jaili and lathi respectively on the complainant.  Appellant  Raj  Singh
@ Raja said to have assaulted Kamlesh and Meena.  On hearing the  commotion,
PW-12 Ram Kishan and one Hoshiara also  reached  there.   They  rescued  the
complainant from the accused, who left the place along with  their  weapons.
All the injured were taken to Community  Health  Centre,  Gohana,  wherefrom
they were referred by PW-21 Dr. S.S. Gupta to PGIMS,  Rohtak,  where  Rajesh
was declared brought dead.  Other injured were  admitted  in  the  hospital,
and underwent medical treatment.  On next day at 7.30 a.m.  police  recorded
statement  of  PW-4  Bhale  Ram  (injured/complainant)  and  on  its   basis
registered First  Information  Report  No.  224  on  1.12.1998  relating  to
offences punishable under Sections 148, 149, 302, 307 and 323 IPC

PW-17 Inspector Ram Prakash conducted the  investigation.  He  went  to  the
spot, prepared site plan (Ex. PS), collected blood-stained earth, and  three
used cartridges.  He also took dead body  of  Rajesh  in  his  custody,  and
prepared inquest report (Ex. PC).  The body was  sent  in  sealed  condition
for  post  mortem  examination.   PW-3  Dr.  Vimal  Kumar  Sharma  conducted
autopsy.  Meanwhile PW-14 Dr. Rajesh Saini  prepared  medico  legal  reports
(Exs. PL, PM, PN, PO and PP) in respect of injured Sanjay, Kamlesh,  Kishni,
Meena and Bhale Ram, and also that of accused Daya Kishan (Ex. DA).

On completion of investigation,  charge  sheet  was  filed  against  accused
Pohla @ Sat Narain, Kishan, Ajmer, Raj Singh @  Raja  and  Daya  Kishan  for
their trial in respect of offences punishable under Sections 148,  302,  307
and 323 read with Section 149 IPC.  Pohla @ Sat Narain was  further  charged
in respect of offence punishable under Section 27 Arms Act, 1959.  The  case
was committed to the Court of Session.   On  25.5.1999,  after  hearing  the
parties, the Sessions Judge framed  charge  in  respect  of  above  offences
against all the five accused to which they pleaded not  guilty  and  claimed
to be tried.

It appears that during the trial when the accused were on bail,  two  except
Daya Kishan and Raj Singh @ Raja (present appellant) absconded.   After  the
stage of 313 of Code of Criminal Procedure (CrPC),  appellant  Raj  Singh  @
Raja also jumped the bail, and was declared proclaimed offender.   As  such,
trial of accused Daya Kishan was concluded vide  judgment  and  order  dated
19.1.2004, passed by the Sessions Judge, whereby said accused was  convicted
and sentenced under Sections 148, 302, 307 and 323  read  with  Section  149

Subsequently, when Raj Singh @ Raja  (present  appellant)  was  re-arrested,
his case proceeded further from the stage of 313 CrPC.  In defence DW-1  Dr.
Gaurav Bhardwaj, DW-2 Bhan Singh, DW-3 Khazan Singh and DW-4 Dr. S.S.  Gupta
were examined.  Two doctors proved the injuries  found  on  person  of  Daya
Kishan, suffered by him at the time of  the  incident.   After  hearing  the
parties, the trial court (Sessions Judge, Sonepat), vide judgment and  order
dated 10.10.2005 passed in Sessions Case No.  121  of  1999/2003,  convicted
and sentenced accused Raj Singh @ Raja also, under  Sections  148,  307  and
323 read with Section 149 IPC.

Convicts Daya Kishan and Raj Singh @ Raja filed Criminal Appeal Nos.  277-DB
of 2004 and 152-DB of 2006 respectively before the  High  Court.   Both  the
appeals were heard together and disposed of vide common judgment  and  order
dated 21.8.2006 whereby  the  two  appeals  were  dismissed.   Convict  Daya
Kishan, through special leave, filed Criminal Appeal No. 879 of 2007  before
this Court, which was disposed of, vide judgment and order dated  22.4.2010.
 Said appeal of Daya Kishan  was  partly  allowed  by  this  Court  and  his
conviction and sentence under Section 302 read with Section 149 IPC was  set
aside.  However, his conviction and  sentence  under  Section  148  IPC  and
under Sections 307 and 323 both read with  Section  149  IPC  was  affirmed.
Said decision of this Court in Daya Kishan v. State of Haryana  is  reported
in (2010) 5 SCC 81.

It is relevant to mention here that this appeal,  which  is  also  filed  by
another convict Raj Singh @ Raja in the year  2007  (through  S.L.P.  (Crl.)
No. 8281 of 2007) remained undisposed of. Both the appeals have  arisen  out
of the common order passed by the High Court.   These  relate  to  the  same
incident.  Prosecution evidence as against both the accused was recorded  in
Sessions Case No. 121 of 1999/2003.  Both the accused are said to have  been
armed  with  lathies.   Daya  Kishan  said  to  have  assaulted  Bhale   Ram
(complainant) and  the  present  appellant  said  to  have  assaulted  PW-11
Kamlesh.  Needless to say that Pohla @ Sat Narain said  to  have  fired  the
shot at Rajesh, who died of the injuries.  This Court, in its  judgment  and
order dated 22.4.2010 in Criminal Appeal No. 879  of  2007  (filed  by  Daya
Kishan) has discussed that  after  the  quarrel  between  PW-10  Sanjay  and
accused Kishan, all the accused assembled to teach lesson to Sanjay.  It  is
discussed in the appeal decided by this  Court  that  there  was  no  common
object on the part of other members of the unlawful  assembly  with  accused
Pohla @ Sat Narain to commit murder of  Rajesh  (deceased).   The  shot  was
fired at him by Pohla.  Role of the present appellant Raj Singh @  Raja  and
that of Daya Kishan, both of whom were armed with lathies, is  similar.   As
such, the case of the present appellant is identical to  the  case  of  Daya
Kishan, already decided by this Court.

For the reasons, as discussed above, this appeal also deserves to be  partly
allowed, for the reasons mentioned  in  Criminal  Appeal  No.  879  of  2007
decided by this Court on 22.4.2010.

Accordingly, in the light of decision  in  the  appeal  of  co-accused  Daya
Kishan, conviction and sentence of  the  appellant  recorded  by  the  trial
court in respect of offence punishable under Section 302 read  with  Section
149 IPC is set aside.  He is  acquitted  of  charge  of  offence  punishable
under Section 302 read with Section 149 IPC.  However,  his  conviction  and
sentence in respect of other offences punishable under Section 148 IPC,  and
under Sections 307 and 323 both read with  Section  149  IPC  are  affirmed.
The appeal stands disposed of.

                                                  [Dipak Misra]

                                                          [Prafulla C. Pant]
New Delhi;
November 20, 2015.

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