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Wednesday, May 24, 2017

When the conviction can only be under section 326 read with section 149 of the IPC. instead of Sec.302 IPC = The accused were part of a large group of 25 persons and no specific role has been ascribed to them. The other accused who were similarly situated to them have been acquitted and no appeals were preferred by the State against their acquittals. Moreover, the main assailants were also acquitted. We have also carefully perused the injury certificate and the post- mortem report. Almost all the injuries were found on the hands and legs of the deceased. Though the accused were carrying deadly weapons, there is no allegation that they had caused injuries to the vital parts of the deceased or Om Prakash. There is no doubt that Bhebharam was attacked by the accused and he died due to the injuries caused by the accused. We do not see any reason to interfere with the findings of the courts below that the accused had attacked the deceased, who died due to the injuries sustained by him. For the reasons mentioned above, we are of the view that the appellants are not liable for conviction under Section 302/149 IPC. In facts and circumstances of this case, we are convinced that the conviction under Section 302/149 has to be modified to Section 326/149 IPC.

                                                              Non-Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.349 OF 2012


JAGDISH PRASAD @ J.P.& ORS.            ....APPELLANT(S)
                                   VERSUS
STATE OF RAJASTHAN                           ....RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.350/2012
CRIMINAL APPEAL NOS.2278-2279/2014

                                  O R D E R
      These appeals have been  preferred  by  the  appellants   against  the
common impugned judgment and order dated 10.3.2011 passed by the High  Court
of Rajasthan in D.B. Criminal Appeal Nos.129/2000 and 84/2002, by which  the
conviction of the appellants for  offences  under  section  147,  148,  450,
302/149, 326/149, 325/149, 324/149, 323, 427 and 364  of  the  Indian  Penal
Code (for short, the 'IPC') by the  Trial  Court  was  upheld  by  the  High
Court.  The sentence of life imprisonment imposed by  the  Trial  Court  was
also confirmed.
      Banwari Lal (PW5) lodged a complaint in the  Police  Station  Kotwali,
Seekar at 10.30 a.m. on 12.09.1998.  He  alleged  that  he  along  with  his
brothers Bhebharam (deceased) and Om Prakash (PW6)  were  sitting  in  their
shop. PW2 Sanwar Mal, PW9 Mohan Singh and Tara Chand also  joined  them.  At
10 a.m., Om Prakash stepped out of the shop and  went  to  Jankinath  market
gate to order for some tea.   At  that  time,  he  was  assaulted  by  10-15
persons near the Jankinath market.
      PW5 Banwari Lal, PW2 Sanwar Lal, PW21 Mohan Lal and  Mangi  Lal  PW22,
rushed out of the shop and saw 10-15 persons beating Om Prakash with  lathi,
sword, farsi and sariyas. Thereafter, the assailants entered  the  shop  and
launched an attack on Bhebharam (deceased) and  Om  Prakash.  The  shop  was
ransacked and the deceased Bhebharam was dragged out of the  cabin.  It  was
also alleged that Shyama attempted to hit Om Prakash with a farsi blow  with
an intention to kill him. Om Prakash avoided the attack and in  the  process
his left hand's middle finger  was  chopped  off.   Both  Bhebharam  and  Om
Prakash were abducted in a Jeep and taken away.   Bhebharam  (deceased)  and
Om Prakash were found in injured condition near Gaushala in Dataramgarh  and
were taken to Seekar Hospital.  Bhebharam  was  referred  to  SMS  Hospital,
Jaipur, as his condition was serious.   Bhebharam  died  at  12.30  p.m.  on
13.9.1998.
      FIR No.438/98 for offences under sections 147,  148,  323,  427,  395,
364, 307, 450 and 149 of IPC was registered  on  12.09.1998  and  after  the
death of Bhebharam, offence under section 302 of IPC was added.
      A charge-sheet  was  initially  submitted  against  12  persons  while
keeping the investigation pending. We  are  informed  that  there  were  six
trials that were separately conducted for the offences mentioned above.  The
appellants before us were shown as accused in two trials and the accused  in
other four trials were  acquitted  by  the  Trial  Court.  No  appeals  were
preferred by the State against the said acquittals.  The High  Court  upheld
the conviction of the appellants who are before us for all  the  aforestated
offences except for the offence  under  section  307/149  of  the  IPC.  The
sentence of life imprisonment that was  recorded  by  the  trial  court  was
confirmed by the High court.
      Mr. Basava Prabhu S. Patil, learned Senior Counsel appearing  for  the
appellants,  submits  that  the  FIR  is  ante-dated  and   ante-time,   the
prosecution version about the occurrence of the crime  at  Jankinath  Market
is doubtful and that there is clear inconsistency between the injury  report
and the post-mortem report. He also submits that the eye-witnesses  are  not
reliable and the statement of the deceased  (Bhebharam)  under  section  161
Cr.P.C. recorded on 12.9.1998  could  not  have  been  treated  as  a  dying
declaration under  section  32  of  the  Indian  Evidence  Act.  He  further
contended that, in any event, the conviction under  section  302  read  with
section 149 of  IPC  is  not  justified.  According  to  him,  even  if  the
prosecution version is to be accepted, the  conviction  can  only  be  under
section 326 read with section 149 of the IPC.
      A perusal of the evidence on record and the judgments  of  the  courts
below would reveal that the assailants Kesar  Jat  and  Shyama  Jat  against
whom specific overt acts were alleged,  have  been  acquitted.  It  is  also
clear from the record that five persons were travelling in a jeep  in  which
Bhebharam (deceased) and Om Prakash were abducted and taken to  Dataramgarh.
Four out of said five  persons  were  acquitted.  Admittedly,  there  is  no
appeal preferred by the respondent-State against the acquittal of Kesar  Jat
and Shyama Jat as also the acquittal of others who were  travelling  in  the
jeep.
      The accused were part of a large group of 25 persons and  no  specific
role has been ascribed to  them.   The  other  accused  who  were  similarly
situated to them have been acquitted and no appeals were  preferred  by  the
State against their acquittals.  Moreover, the  main  assailants  were  also
acquitted.
      We have also carefully perused the injury certificate  and  the  post-
mortem report. Almost all the injuries were found on the hands and  legs  of
the deceased. Though the accused were carrying deadly weapons, there  is  no
allegation that they had caused injuries to the vital parts of the  deceased
or Om Prakash.
      There is no doubt that Bhebharam was attacked by the  accused  and  he
died due to the injuries caused by the accused. We do not see any reason  to
interfere with the findings  of  the  courts  below  that  the  accused  had
attacked the deceased, who died due to the injuries sustained by  him.   For
the reasons mentioned above, we are of the view that the appellants are  not
liable for conviction under Section 302/149 IPC. In facts and  circumstances
of this case, we are convinced that the  conviction  under  Section  302/149
has to be modified to Section 326/149 IPC.
      We are informed that all the accused have already  undergone  rigorous
imprisonment for periods between 8 years and 7 months  to  12  years  and  8
months, except the appellants in Criminal Appeal Nos.2278-2279 of 2014,  who
have undergone rigorous imprisonment for 6 years and 5 years  and  2  months
respectively.
      Taking into account the long period of incarceration undergone by  the
appellants, we partly allow these appeals, convert  the  conviction  of  the
appellants from Section 302/149 to section 326/149 of  the  IPC  and  reduce
their sentence to the period already undergone by them. The  appellants  are
in jail. Their bail  bonds  stand  cancelled.  They  may  be  released  from
custody forthwith, if not required in any other case.
                                                       ....................J
                                                               [S. A. BOBDE]


                                                       ....................J
                                                          [L. NAGESWARA RAO]
NEW DELHI;
APRIL 26, 2017.

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