1 Db cr.appeal 1176-2002 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR J U D G M E N T 1.Ramdev son of Shri Sangram 2.Ghasi Ram son of Shri Panchu 3.Nanda son of Shri Panchu 4.Bhanwar son of Shri Nanda-(deceased) 5.Amra son of Shri Sangram 6.Chothu son of Shri Sangram 7.Ramlal son of Shri Hathi -(deceased) 8.Sheoji son of Shri Panchu 9.Kishna son of Shri Nanda All by caste Gujar Residents of Nijampura, P.S.Nasirabad Sadar, District Ajmer. Vs. State of Rajasthan through its Public Prosecutor. D.B. Criminal Appeal No. 1176/2002 against the judgment & order dated 30.7.2002 passed by the Additional Sessions Judge (Fast Track), Ajmer in Sessions Case No. 161/2001. Date of Judgment 4th November, 2009 PRESENT HON'BLE MR. JUSTICE DALIP SINGH HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr.Ravi Kasliwal for the appellants. Mr.J.R.Bijarnia Public Prosecutor for the State. **** BY THE COURT: (Per Hon'ble Mr. Chaudhari,J.) This appeal has been filed against the judgment dated 30.7.2002 passed by Additional Sessions Judge (Fast Track) Ajmer in Sessions Case No.161/2001 by which he convicted accused-appellant-Ramdev under 2 Db cr.appeal 1176-2002 Section 148,452,302,323/149 IPC and acquitted him under Section 323,302/149 IPC and further convicted rest of eight accused-appellants under Section 148,452,302/149,323/149 IPC and acquitted them of the offence under Section 323, 302 IPC and sentenced all the nine accused-persons under Section 148 IPC to undergo one year's simple imprisonment and fine of Rs.1,000/-, in default of payment of fine to further undergo one month's simple imprisonment and under Section 452 IPC to undergone one year's simple imprisonment and fine of Rs.1,000/- in default of payment of fine to further undergo two months simple imprisonment and under Section 323/149 IPC to undergo six months simple imprisonment and fine of Rs.500/- in default of payment of fine to further undergo one month's simple imprisonment. Accused-Ramdev under Section 302 IPC and rest of the accused under Section 302/149 IPC were sentenced to undergo life imprisonment and fine of Rs.2,000/- in default of payment of fine to undergo three months simple imprisonment and further ordered that all sentences shall run concurrently. Brief facts of the prosecution case are that PW1-Ganga Ram alongwith PW2-Teju and PW5-Pusa lodged FIR Ex.P/1 on 30.6.98 at 7.00 a.m. and alleged 3 Db cr.appeal 1176-2002 that on 29.6.98 at 2.00 p.m. Dharam Singh, Pappu Singh abused and quarelled with him in respect of land and villagers pacified them. In the night he alongwith his family members were sleeping in the Chowk of his house and suddenly all the accused-appellants armed with Lathi, Barchhi, Sariya and stones entered in his house after breaking the door, window and also from the roof of his house. In this assault his father Hajari was murdered and he alongwith his sons and daughter Satyanarayan, Hemraj, Teju, Sita and daughter-in-law Geeta sustained injuries which were inflicted by accused assailants. He got injuries on his foot by lathi and Geeta sustained injuries on her hand and back. At that time Heera, Chhitar and Sanwra came there. Assailants are habitually quarrelling and previously also they have committed murder in Kota. The assailants had restrained them during the night so the report could not be lodged in the night. On this report case under Section 147,148,452,302,323,34 IPC was registered and after completion of investigation challan under Section 147,148,149,336,452,323,302 & 34 IPC was filed against the accused-appellants in the Court of Civil Judge (Junior Division) & Judicial Magistrate, Nasirabad. The case was committed to the Court of Sessions Judge, Ajmer and 4 Db cr.appeal 1176-2002 case was transferred to the Additional Sessions Judge No.2, Ajmer where charges under Section 148,323,302,452,323/149,302/149 IPC were framed against the accused persons which they denied. During trial the case was transferred to the Court of Additional Sessions (Fast Track), Ajmer. Prosecution examined 12 witnesses and after recording statements of accused- persons under Section 313 Cr.P.C. and hearing arguments the accused-appellants were convicted and sentenced as aforesaid. During pendency of appeal, appellant No.4 Bhanwar son of Nanda and appellant No.7-Ramlal son of Hathi died and by order dated 29.7.2009 appeal stands abated in respect of appellants No.4 & 7. Heard learned counsel for the parties and perused the record. Learned counsel for the appellants argued that charges have not been framed properly and on account of joinder of charge accused-persons have been prejudiced. There is delay in lodging F.I.R., no overt act has been shown in FIR and Kulhari has been introduced after postmortem report and further argued that looking to the contradictions in the statements of witnesses and suppression of material eye witnesses and witnesses of 5 Db cr.appeal 1176-2002 recovery, no case is made out against the accused- appellants and learned trial Court has committed error in convicting the accused-appellants and further argued that in absence of the ingredients of the substantive charge under Section 302 IPC against accused-Ramdev he could not have been convicted under Section 302 IPC, hence, appeal may be accepted and accused-appellant may be acquitted of the charges levelled against them. On the other hand learned Public Prosecutor argued that irregularities in the charge does not vitiate the trial and there is consistency in the statements of eye witnesses and further submitted that Kulhari has been mentioned in the FIR and the trial Court has given cogent reasons for conviction and the prosecution has proved the case beyond reasonable doubt against the accused- appellants, hence, appeal of the appellants may be dismissed. As far the charge is concerned, following charges have been framed by the trial Court against all the accused-persons:- आपने Ǒदनांक 30.6.98 को गॉंव िनजामपुरा मɅ राǒऽ के करȣब 8-9 बजे सह अिभयुÈ तगण के साथ ǒविध ǒवǾƨ जमाव गǑठत Ǒकया। उस ǒविध ǒवǾƨ जमाव के सदः य लकड़ȣ, बरछȤ, सǐरया आǑद ऐसे घातक हिथयारɉ से सुसǔÏ जत थे ǔजनके ूयोग से मृ× यु काǐरत होनी संभाå य थी, यह ǒविध ǒवǾƨ जमाव आपने हजारȣ कȧ ह× या करने व स× यनारायण, हेमराज, तेजू, सीता, गंगाराम व गीता के साथ मारपीट करने के सामाÛ य 6 Db cr.appeal 1176-2002 उƧेँ य से बनाया। इस सामाÛ य उƧेँ य कȧ पूित[ मɅ आपने इन लोगɉ के साथ मारपीट करने कȧ पूण[ तैयारȣ कर दरवाजा व जंगला तोडकर व मकान कȧ छत पर से गंगाराम के मकान मɅ ूवेश कर गृह अितचार Ǒकया व ǒविध ǒवǾƨ जमाव के सदः य बने रहते हये Ǒहंसा ु का ूयोग Ǒकया और हजारȣ के शरȣर पर धारदार हिथयार व कुÛ द आला से साधारण व गभीर ूकृित कȧ चोटɅ काǐरत कर उसकȧ ह× या कȧ व अÛ य उपरोÈ त बताये गये å यǔÈ तयɉ के साथ कुÛ द आला से मारपीट कर साधारण ूकृित कȧ चोटɅ काǐरत कȧ। एतत Ʈारा ् आपने धारा- 148, 452, 323, 302, 323, 302/149 भा.दं.सं.का अपराध Ǒकया। Perusal of the charge reveals that a single composite charge has been framed against the accused- persons whereas according to Section 218 Cr.P.C. separate charge should have been framed for every distinct offence. Instead of framing separate charges the learned Sessions Judge framed the charge in one paragraph quoted above which is manifastely untenable and which cannot be regarded as a charge in the eye of law as held in AIR 1959 Andhra Pradesh, 477. In Re Bhupalli Malliah and others. Though Section 302 IPC has been mentioned in the charge, but a perusal of the charge reveals that no ingredient of Section 302 IPC simplicitor has been incorporated in the aforesaid charge. In such circumstances aforesaid charges framed against the accused-persons must have prejudiced them. Now the question arises whether re-trial should be ordered or case should be decided on merits. 7 Db cr.appeal 1176-2002 Normally when charges are untenable and it prejudices the accused-persons, retrial should be ordered. In re Bhupalli Malliah and others (supra) re- trial of convicted accused-appellants was ordered because the occurrence was of 28th May, 1958 and order of re-trial was made by Andhra Pradesh High Court on 3.2.1959. In AIR 1955 SC,274 Nanak Chand vs. State of Punjab on account of defective charges Hon'ble Apex Court remanded the matter for retrial after framing charge under Section 302 IPC and in that case occurrence was of 5.11.53. On the other hand, in AIR 1955 SC, 419 Suraj Pal vs. State of Uttar Pradesh on account of defective charges accused persons were acquitted of the major charges and retrial was not ordered. In AIR 1966 SC, 1942 Lakhan Mahto and ors. vs. State of Bihar on account of defective charges conviction under Section 302 IPC was set aside and order of retrial was not made. In AIR 1989 SC, 129 State of West Bengal vs. Laisal Haque & anr. on account of defective charges order of High Court directing re-trial was set aside by Apex Court. In that case occurrence was of 5.9.80 and order of re-trial was passed by Calcutta High Court on 14.8.86. 8 Db cr.appeal 1176-2002 Learned counsel for the appellants submitted that more than 11 years have elapsed and in such circumstances case should not be remanded for re-trial and requested that the matter should be decided on merits. In the present case the occurrence took place on 29.6.98 and more than 11 years have elapsed and in such circumstances we do not feel it proper to remand the matter for retrial. PW1-Ganga Ram, PW2-Teju, PW3-Satyanarain, PW4-Sanwra, PW5-Pusa, PW6 Sita have stated in their statements that in quarrel Hajari died. PW12-Nilambar Singh, who has investigated the matter, has submitted that he prepared Panchayatnama Ex.P/18 and Ex.P/19 of deceased Hajari. PW7-Dr.S.N.Dargad has stated that he conducted the postmortem of deceased Hajari and prepared report Ex.P/4 which bears his signature and further submitted that deceased died on account of shock due to head injury. Thus, it becomes clear that deceased Hajari died on 29.6.98 due to head injury inflicted by assailants. Learned counsel for the appellants submitted that there is a delay in lodging the FIR and no specific overt act of the accused-persons has been shown in the 9 Db cr.appeal 1176-2002 FIR and the Kulhari has been introduced during investigation. As per record the occurrence took place on 29.6.98 between 8 to 9 p.m. and report Ex.P/1 was lodged on 30.6.98 at 7.00 a.m. and check FIR Ex.P/2 reached the Court on 1.7.98 at 12.05 p.m. No doubt there is delay of 10 hours in lodging FIR but as the occurrence took place in the night and as per statements of witness the accused-persons restrained him in the night, so the report could not be lodged in the night and apparently there is reasonable explanation regarding delay in lodging of FIR. It is true that no specific overt act of the accused-appellants has been shown in report Ex.P/1 and there is general allegation that all the accused-appellants armed with Lathi, Barchi, Sariya and stones caused death of Hajari and injuries to other persons. As far introduction of Kulhari in the hands of some accused-persons during investigation is concerned, perusal of report Ex.P/1 reveals that at the top it has been mentioned as- "ǒवषय-पूव[ िनयोǔजत Ü लान से लकǔ़डयɉ, सǐरयɉ, कुã हाǔ़डयɉ व बडची से लेस होकर हमारे घर पर हमला कर मेरे ǒपता कȧ ह× या करने व हमारे सपǐरवार के साथ मारपीट करने बाबत।्" This fact shows that in FIR there is mention of Kulhari in the hands of assailants and it has not been 10 Db cr.appeal 1176-2002 introduced after postmortem and during investigation. Prosecution has examined 5 persons as eye witnesses. PW1-Ganga Ram has stated that he alongwith his father Hajari, son Teju, Satyanarain and Shivraj were sitting on “Hatai” (common place) and on account of hot altercation persons of the Gujar community became angry. He alongwith his family members left for his house then all the accused persons armed with weapons entered his house. He further stated that the accused Ramdev, Kishna and Ramlal were armed with Kulhari, accused Amra was armed with Sariya and other accused-persons were armed with lathi. He further stated that accused-Ramdev inflicted injury on the head of his father. Accused-Kishna inflicted injury on hand of his father and accused-Amra inflicted injury on the leg of his father. Lateron all the accused-persons inflicted injury on the body of his father as well as to himself and other members of his family. PW2-Teju has stated that all the accused-persons entered in his house and his grand father Hajari was beaten by Ramdev, Kishna, Ramlal, Amra and Sheoji. He further stated that accused-Ramlal, Kishna and Ramdev were armed with Kulhari, accused- Amra with Sariya and Sheoji with lathi. Lateron he also stated that he alongwith his other family members were 11 Db cr.appeal 1176-2002 also beaten by all the accused-persons. PW3-Satyanarain has also stated that all the accused-persons entered in his house. Accused-Ramdev, Kishna and Ramlal inflicted injuries with Kulhari on the body of his grand father as he came in between the assailants and Gangaram. Accused-Amra inflicted injury with Sariya and other accused-persons inflicted injuries with lathi. PW4- Sanwra, who is chance witnesses and reached on the spot lateron, has stated that accused-persons were armed with weapons and further stated that all the accused-persons were beating deceased Hajari. PW6-Sita has stated that she, her brother-Sanwra and Bhabhi were sleeping after taking meals. Accused-persons entered in the house and accused-Ramdev inflicted injury with Kulhari on his grand father Hajari. Perusal of statements of these witnesses reveals that accused-Ramdev, Kishna and Ramlal were armed with Kulhari, accused-Amra was armed with Sariya and other accused-persons were armed with lathis. As per postmortem report following injuries were found on the body of deceased-Hajari:- “1. Incised wound 5 cm x ½ to 1 cm x Bone and Brain tissue deep (L) side of scalp, temporal and frontal region (L) side; 2.Incised wound 2 x ½ x muscle deep (L) elbow; 12 Db cr.appeal 1176-2002 3.Incised wound 1 x ¼ x skin deep (Rt.) leg.; 4.Bruise c Abrasion (L) thigh 5 cm x 2 cm one; 5 cm x 2 cm one 5.Bruise (L) scapulla region 5 x 2 cm one ) two parellel 5 x 2 cm two ) bruise 6. Swelling c bruise 10 x 5 cm (L) leg. BE Pupils-Dilated.” Out of these six injuries, injuries No.1, 2 and 3 were caused by sharp weapon and injuries No.4,5, and 6 were caused by blunt weapon and deceased died on account of head injury. It appears that injury No.1 was inflicted by accused-Ramdev, whereas injuries No.2 and 3 were inflicted by accused-Kishna and Ramlal and injuries No.4,5 and 6 were inflicted with Sariya by accused-Amra. Rest of the accused-persons either have not inflicted any injury or were not on the spot and they have been implicated falsely. All the witnesses have mentioned in their statements about the specific injuries inflicted by only aforesaid four accused-persons on the body of deceased. In such circumstances presence of other five accused-persons on spot can not be believed. As per report Ex.P/1, Ganga Ram, Satyanarain, Hemraj, Teju, Sita and Geeta received injuries at the hands of accused-persons. Geeta and Hemraj have 13 Db cr.appeal 1176-2002 neither been shown as prosecution witnesses in the calendar witnesses nor examined by prosecution for the reasons best known to Investigating Officer. There is injury report of Geeta Ex.P/15 and no external injury was seen on her body by PW11-Dr.S.N.Dargad. There is no injury report of Hemraj and thus, it seems that either Geeta and Hemraj were not injured or they were not witnesses to the occurrence, even then their names have been shown as eye witnesses in report Ex.P/1. PW1- Gangaram has stated in his statement that Shivraj also received injuries though neither his presence has been shown in report Ex.P/1 nor any injury report has been proved. PW6-Sita has stated in her examination in chief that her brother Shivraj was sleeping alongwith his wife. In such circumstances, there could not have been any injury on the body of Shivraj. Prosecution has also not examined Shivraj though as per statement of PW1- Gangaram and PW6-Sita, Shivraj was present in the house. In the same way, as per injury report Ex.P/5 there were two simple injuries on left and right foot of Gangaram caused by blunt weapon. As per injury report Ex.P/16 Sita received only one simple injury by blunt weapon on his right sholder and as per injury report Ex.P/17, Teju received only three simple injuries by blunt 14 Db cr.appeal 1176-2002 weapon on his right toe, left side of chest and bridge of nose. Teju, Sita and Geeta were medically examined on 1.7.98 at 3.50 p.m., but not on 30.6.98 and no reasonable explanation has been given for delay in their medical examination. In such circumstances, it appears that Sita, Geeta, Hemraj and Shivraj neither saw the occurrence nor received any injuries. Injuries on the body of Ganga Ram are also simple in nature caused by blunt weapon and only 2 to 3 injuries have been caused on the body of other injured persons. Had there been nine accused-persons on the spot, all the injured persons and deceased must have received much more injuries by blunt weapon. In such circumstances, it appears that only accused-Ramdev, Kishna, Ramlal armed with Kulhari and accused Amra armed with Sariya inflicted injuries on the body of Hajari and other injured persons were not beaten by any of the accused-appellants and names of other accused-appellants have falsely been incorporated in FIR and statements of some witnesses. As per report Ex.P/1 Heera, Chhitar and Sanwra reached on the spot after the occurrence. PW4- Sanwra has stated in his statement that on the day of occurrence at 10-11 p.m. he came to Nizampura from Bandanwara and heard hue and cry from the house of 15 Db cr.appeal 1176-2002 Ganga Ram. He went on the spot and saw that accused- persons were beating Hajari. He intervened and Hajari died on the spot. He also went to lodge report. Neither FIR Ex.P/1 nor check report Ex.P/2 indicates his presence or bears the signature of Sanwra and in such circumstances it cannot be presumed that he saw any occurrence specially when other two persons Chhitar and Heera, who are alleged to have come on spot alongwith Sanwra, have not been examined. Sanwra has also admitted in his cross examination that he brought fodder in truck at the time of occurrence and there was driver and Khalasi in the truck, but they did not accompany him to the spot. He has not revealed names of driver and khalasi. Had he gone there on the spot, in normal course, driver and Khalasi of truck should have accompanied him. He had brought fodder in truck and on his intervention accused-persons left the spot. He ought to have taken the complainant to the police station immediately to lodge the FIR. In such circumstances, no reliance can be placed on the statement of PW4-Sanwra. None of the injured witnesses have named any particular accused who inflicted injury on his/her body. In such circumstances, much reliance cannot be placed on the statements of these eye witnesses in respect of 16 Db cr.appeal 1176-2002 participation of other accused-persons. In the light of the above discussion, it appears that only four accused-persons Ramdev, Kishna, Ramlal and Amra entered the house of complainant-Gangaram and inflicted injuries on the body of deceased-Hajari and caused his death. For forming unlawful assembly there must be five or more persons. It has been held by Hon'ble Apex Court in 1993 SCC Criminal Subran alias Subramanian & ors. vs. State of Kerala, 583 as under: “An assumbly of less than five members is not an unlawful assembly within the meaning of Section 141 and cannot, therefore, form the basis for conviction for an offence with the aid of Section 149 IPC. The effect of the acquittal of the two accused- persons by the High Court and without the High Court finding that some other known or unknown persons were also involved in the assault, would be that for all intent and purposes the two acquitted accused-persons were not members of the unlawful assembly. Thus, only four accused could be said to have been the members of the assembly but such an assembly which comprises less than five members is not an unlawful assembly within the meaning of Section 141 IPC. The existence of an unlawful assembly is a necessary postulate for invoking Section 149 IPC. Where the existence of such an unlawful assembly is not proved, the conviction with the aid of Section 149 IPC cannot be recorded or sustained. The failure of the prosecution to show that the assembly was unlawful must necessarily result in the failure of the charge 17 Db cr.appeal 1176-2002 under Section 149 IPC. Consequently, the conviction of appellants 2 to 4 for an offence under Section 326/149 IPC cannot be sustained and the same would be position with regard to the conviction of all the appellants for other offences with the aid of Section 149 IPC also.” Thus, it becomes clear that when there were only four accused-persons, there cannot be formation of unlawful assembly and accused-persons can neither be convicted for the offence under Section 148 nor for other offences with the aid of Section 149 IPC. PW12-Nilambar Singh has stated in his statement that on the information and at the instance of accused-persons he recovered bloodstained Kulharis, Sariya, Lathi and bloodstained “Upla”. He further stated that he recovered clothes of deceased and blood- smeared soil. He further stated that all these articles were seized on the spot and were sent for chemical examination which fact has been corroborated by the evidence of PW9-Ramdev and PW8-Prem Singh. Order sheet dated 23.7.2002 reveals that A.P.P. brought to the notice of the Court that FSL report Ex.P/61 dated 28.9.2001 has not been exhibited. Inspite of objection from defence, this report was marked as Ex.P/61 and on the same day arguments were heard and on next date 18 Db cr.appeal 1176-2002 judgment was pronounced. As per report Ex.P/61 human blood was found on the clothes of deceased, blood smeared soil taken from the spot and Kulhari recovered from Ramdev and Lakri recovered from accused Ghasi. As per recovery memo Ex.P/35 “Upla” which is normally used in wooden door has been recovered at the instance of accused-Ghasi. None of the witnesses have stated in their statements that “Upla” was used by any of the accused-persons. In such circumstances merely because “Upla” was found bloodstained in FSL report, it cannot be presumed that accused-Ghasi inflicted blow with “Upla” on the body of deceased. FSL report Ex.P/61 has neither been tendered in evidence by any witness nor any question has been put under Section 313 Cr.P.C. to the accused-persons pertaining to report Ex.P/61 and in such circumstances report Ex.P/61 cannot be used against the accused-persons. Learned trial Court has committed error in placing reliance on report Ex.P/61 and convicting accused persons on the basis of this report. In the light of the above discussion, it becomes clear that prosecution has proved beyond reasonable doubt that four accused-persons entered in the house of deceased with preparation to commit offence and accused-Ramdev inflicted blow with Kulhari on the head 19 Db cr.appeal 1176-2002 of deceased-Hajari and accused-Ramlal and Kishna inflicted injuries with Kulhari on other parts of body of deceased Hajari and accused-Amra inflicted injury with Sariya on the lower part of deceased-Hajari. Learned trial Court has convicted accused- Ramdev under Section 302 IPC and acquitted him under Section 302/149 IPC. As discussed above, no legal charge under Section 302 IPC has been framed against accused-Ramdev and in such circumstances he could not have been convicted under Section 302 IPC as held by the Apex Court in AIR 1955 SCC, 274 (Nanak Chand vs. State of Punjab and 1966 SCC 1742 (Lakhan Mahto & ors. Vs. State of Bihar The State has not preferred appeal against acquittal of accused-Ramdev under Section 302/149, 323 IPC and against acquittal of other accused-persons under Section 302 and 323 IPC. The prosecution could not prove charge of unlawful assembly against the