1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Mansukh & Ors. vs. The State of Rajasthan D.B.Cri. Appeal No.363/2002 Under Section 374 Cr.P.C. against the judgment dated 09.04.02 passed by the Addl.Sessions Judge, (Fast Track), Chittorgarh in Sessions Case No.114/2001. ....... Date of Judgment: 16th January, 2008 PRESENT HON'BLE MR.JUSTICE BHAGWATI PRASAD HON'BLE MR.JUSTICE BHANWAROO KHAN Mr.Sandeep Mehta for the appellants. Mr.JPS.Choudhary, Public Prosecutor. BY THE COURT :(PER HON.MR.BHAGWATI PRASAD,J.)- The present appeal is filed by six accused appellants, for being convicted by the court of Addl. Sessions Judge (Fast Track), Chittorgarh in Sessions Case No.114/2001 dated 09.04.02. The case was initiated on the basis of first information 2 report recorded at Police Station , Chittorgarh being FIR No. 625/2000. In the first information report lodged by Satya Narain it was stated that on 06.10.2000 at about 1.00PM at the construction site of his house , accused persons came. Apart from the six appellants he has named 2 more persons in the first information report . They are Chotu and Lalit. It is stated that the accused persons started quarreling. Thereafter, his brother Om Prakash, was assaulted by knife, which proved fatal. The accused persons also assaulted his father Prithvi Ram. In the endorsement made in his written first information report, it was given out by Satya Narain that the dispute was in relation to some construction about the first floor of their house and breaking of the light of the tempo. On the basis of such first information report, investigation was conducted and charge sheet was filed against the 6 accused persons. The case was committed and made over to the trial court. The trial court framed the following charges: Rajkumar – u/s 148, 323/149, 302 and 324 IPC Mansukh- u/s 148, 302/149, 324/149 and 323 IPC. Keshav Lal, Rakesh, Radhey Shyam and Lokesh – u/s 148, 302/149, 324/149 and 323/149 IPC. Accused denied the charges and claimed trial. In support 3 of the prosecution case, prosecution examined 25 witnesses and produced 30 documents. Defence examined 2 witnesses and exhibited 6 documents. Accused was examined under Section 313 Cr.P.C. wherein they denied the prosecution case. After considering the case of the prosecution, the trial court came to the conclusion that accused Rajkumar is guilty of the offence and the other accused persons were also convicted as under :- 1 2 3 4 1 Rajkumar U/s 302 IPC u/s 148 IPC u/s 323/149 IPC Life Imprisonment and a fine of Rs.200/- in default to further undergo 10 days' S.I. 1 year's R.I. and fine of Rs.100/- . In default to further undergo 10 days' S.I. 1 month's S.I. and a fine of Rs.100/- . In default to further undergo 10 days' S.I. 2 Mansukh, Radhey Shyam, Lokesh, Keshav Mal and Rakesh U/s 302/149 IPC u/s 323 IPC U/s 147 IPC Life Imprisonment and a fine of Rs. 200/-, in default to further undergo 10 days' S.I. 1 month's S.I. and a fine of Rs.100/- and in default to further undergo 10 days' S.I. 1 month's S.I. and a fine of Rs.100/- and in default to further undergo 10 days' S.I. 4 1 2 3 4 3 Radhey Shyam, Lokesh, Keshav Mal & Rakesh U/s 323/149 IPC 1 month's S.I. and a fine of Rs.100/-, in default to further undergo 10 days' S.I. The trial court accepted the testimony of the eye witnesses wherein eye witnesses stated that all the accused persons made an unlawful assembly and caused injuries to Om Prakash. The learned counsel for the appellants urged that the best case of the prosecution is that initially they were quarreling at the construction site. At that time they pacified the accused and they went away but subsequently the accused started quarreling. When the quarrel was going on, at that time Rajkumar came with a 'gupti'. While the others caught hold of him, Rajkumar caused injuries on the chest and abdomen. The case of the defence is that gupti was not present at the scene of occurrence when the quarrel started initially. The same was subsequently brought by Rajkumar. There is no whisper in the prosecution case that gupti was either intended, or designed by the five accused persons, who started quarrel , to be used in the assault. It was accused Rajkumar only who had brought gupti on his own ,at a later stage. That gupti was brought in, after start of the incident. That act of Rajkumar is separate than the act of 5 the other accused persons. There is hardly any similarity in between the act of the accused Rajkumar and the other accused persons. It can not be expected that the 5 accused persons , apart from Rajkumar had the knowledge that Rajkumar will bring gupti and then cause injuries to Om Prakash. Thus , the act of bringing the gupti, and causing assault by gupti, can singularly be attributed to accused Rajkumar. An act which is committed by a single individual without out the knowledge of the other accused persons, cannot make a case of common object where the accused had not formed the common object with Rajkumar with conscious knowledge and they were engaged only in the quarrel then offence under section 302 with the aid of Section 149 IPC becomes a proposition which is doubtful, and, therefore, the conviction of the accused persons with the aid of Section 149 IPC is a difficult proposition, which cannot be supported . As regards accused Rajkumar is concerned the submission of the learned counsel for the appellants was that it was not a pre-meditated assault. At the spur of the moment, the quarrel took place and the accused had caused injuries and, therefore, the offence may not travel beyond Section 304 -I IPC. Per contra, the learned public prosecutor submitted 6 that as far as the case of accused Rajkumar is concerned he subsequently came with knife. He was not part of the assembly in its inception. Therefore, he had a definite object of causing such injuries to the deceased, which would result into his death and, therefore his conviction under section 302 IPC has rightly been made by the trial court. The learned Public Prosecutor further submitted that when the accused were quarreling with the complainant party, at that time Om Prakash came to intervene and then he was caught hold of. At that time Rajkumar came and inflicted injuries on his person. Such attempt on the part of the accused persons show that the common object of killing of Om Prakash developed on the spur of the moment and this resulted into his death and, therefore, the conviction of the accused persons, with the aid of Section 149 IPC, is a proper exercise of of jurisdiction by the trial court . We have heard the learned counsel for the parties and have given our thoughtful consideration to the material available on record. As regards accused persons Mansukh, Rajkumar @ Raju, Radhey Shyam, Lokesh,and Keshav Lal etc. the case is that they 7 were engaged in the quarrel. No participation of these accused persons is available from the prosecution case, which goes beyond Sections 147, 323 and 323/149 IPC. They have been convicted as quoted above. Out of them, Mansukh has been convicted under Section 147 and 323 IPC simplicitor and the other persons under sections 323/149 and 147 IPC. To that extent, their conviction appears to be proper. But so far as the conviction under section 302/149 IPC is concerned, we are of the considered view that Rajkumar brought the knife subsequently. Knowledge of the accused persons, about his possessing a knife (gupti), cannot be perceived. If in the perception of the accused persons, the presence of sharp edged weapon was not there, then their conviction under section 302/149 IPC does not appear to be a correct proposition and we are of the considered view that this conviction should be set aside. Obviously it was a case of over implication. Two accused Chhotu and Lalit, though named in the FIR, were not even charge sheeted. In the result, the appeal of Mansukh, Radhey Shyam, Lokesh, Keshavlal and Rakesh is partly allowed. Their conviction under section 302/149 IPC is set aside. Consequently the sentence awarded under this section is also set aside. The conviction under section 147 and 323 IPC in the case of Mansukh and Section 147/323 8 read with Section 149 IPC in the case of Radhey Shyam, Lokesh, Keshavlal and Rakesh accused, is maintained. They are sentenced to the already undergone period of substantive sentence. They are on bail, they need not surrender, their bail bonds stand cancelled. Now we take up the case of accused Rajkumar @ Raju. He is the person who has caused injuries to the deceased. The injuries are fatal in nature. They are more than one:- Name – Om Prakash, s/o Prithvi Raj, age 30 yrs. Caste Chhipa, r/o Near old Post Office, Chittorgarh- 1 Type of injury Size of injury Part of body Simple or grievou s weapon I.M.of injured person Spl. 1 Stab wound profusely bleeding 21/2”x 3/4” Left sub lateral region sharp One mark (L) knee anteriorly 0.6 hrs. 2 Incised wound with bleeding ½' x 1/4” x 1/4” (L) side of chest upper 1/3 posterior region simple sharp 3 Incised wound 1”x1/2” M.S. deep U shaped (L) bone lateral 1/3 posterior simple sharp Presence of injuries show that there was repetition of the injuries, which show the intent of the accused. His case is that he 9 subsequently came with a knife. This shows that he came with the preparation and intention of using the sharp edged weapon , in the fashion in which he has used . Case against him is supported by the eye witness account. There is no discrepancy or infirmity in the statement of the eye witnesses, so far as his participation is concerned. His case is not covered by any of the exceptions contained in section 300 IPC and, therefore, his conviction cannot be converted in the definition of culpable homicide, not amounting to murder. Consequently, we find him guilty under section 302 IPC , therefore, his conviction under section 302 IPC simplicitor is maintained. Other conviction under sections 148, and 323/149 IPC is also maintained. His appeal is considered merit less, hence dismissed. He is behind the bars, he should serve out his sentence. (BHANWAROO KHAN), J. (BHAGWATI PRASAD), J. L.George