Raju @ Raj Kumar vs State Of Rajasthan

(3) On 1.9.1989 at 9.20 pm Uttam Prakash (pw.4) lodged an FIR at Police Station Ashok Nagar, Jaipur, in which he claimed that he and his father Ram Kishan Khandelwal (since deceased) had left their house, situated at A-10, Sikar House Area, for his uncle's house at C-10, Madan Kunj, Prithvi Raj Road, Jaipur, when at 9 pm while the deceased was sitting on the bed talking with PW.4's aunt and uncle, 10 to 12 persons entered the room and surrounded the deceased. These 10 to 12 persons were armed with knives, swords and pick-axes. PW.4 was threatened and told not to shout. PW.4 in his FIR stated that in his presence the accused (appellant herein) stabbed his father, Ram Kishan Khandelwal. According to the FIR, when PW.4's uncle raised an alarm the appellant herein along with others fled. Ram Kishan Khandelwal died. According to the FIR, there was enmity between Ram Kishan Khandelwal on one hand and Hanuman, Hanif, Chhitar and Ramesh Shanker on the other hand. On the basis of the said report investigation commenced. The case was registered for offences under Sections 147, 149 and 302 of Indian Penal Code (for short, 'IPC'). On the basis of the information given by the appellant herein, weapons of offence and blood soaked clothes were recovered. PW. 25, a Judicial Magistrate, conducted identification parade of the appellant herein and others. The police thereafter submitted their charge- sheet, inter alia, against the appellant herein. 31 witnesses were examined. 74 documents were produced by the prosecution. During the course of the trial it was revealed that Ram Kishan Khandelwal and his family used to live at Sikar House Area in Jaipur. Hanuman and Chhitar were his neighbours. They were on inimical terms. There was property dispute. The bathroom of Hanuman and Chhitar was demolished by Jaipur Development Authority. Hanuman and Chhitar were under the impression that the bathroom was demolished on the complaint of Ram Kishan Khandelwal. Hanuman and Chhitar sold their house to Hanif (one of the co- accused). Prior to his death, Ram Kishan Khandelwal had lodged an FIR with Police Station Shastri Nagar, Jaipur, in which he had asked for police protection. Ram Kishan Khandelwal was also an accused in many criminal cases. These cases were pending. According to the prosecution, Hanuman, Chhitar and Hanif entered into a criminal conspiracy for the murder of Ram Kishan Khandelwal. According to the prosecution, however, the appellant herein along with Aziz, Iqbal, Mahendra Singh, Hamid and Firoz committed the actual murder. Therefore, according to the prosecution there were two groups of persons, the first set/group of persons entered a criminal conspiracy but the actual murder was done by Iqbal, Aziz, Raju Naik (appellant herein), Mahendra Singh, Hamid and Firoz.

(5) Two issues arise for determination in this criminal appeal. The first concerns the merits of the case and the second concerns an argument advanced on behalf of the appellant that the appellant has completed the sentence of three years on 8.3.2007 as he was convicted for offence under Section 148 IPC which has been disputed by the State on the ground that the appellant stood convicted under Section 302 IPC and sentenced to life imprisonment.

The accused in this case are on bail, hence for getting the punishment they are being taken in the judicial custody. The punishment warrant of the accused may be prepared as per above and sent to the Central Jail, Jaipur. Punishment of all the crime will be simultaneous. In this case, the seized item of proof will be destroyed after expiry of six months of the appeal period. The file after recording of the decision may be admitted in the office. The accused with the proven crime may be provided with a copy of the decision without any cost."

(10) If one reads para '65' with para '66', we find that Abdul Aziz has been accused No.1 and he is convicted under Section 460 IPC. This is clear from para '65'. It is in consonance with the chart in para '66'. Similarly, the appellant (Raju @ Raj Kumar) was accused No.2 and he has been convicted under Section 148 IPC. This is clear from para '65'. To this extent, para '65' is in consonance with para '66' (chart annexed thereto). Durga Das was accused No.3 and he has been convicted under Section 302 IPC both under paras '65' and '66'. It appears from the reading of para '65' that accused No.1 was convicted under Section 460 IPC, accused No.2 was convicted under Section 148 IPC and accused No.3 was convicted under Section 302 IPC respectively. The word "respectively" is omitted. Be that as it may, the State did not go in appeal against the order of the trial court convicting Raju @ Raj Kumar (appellant herein) for convicting him under Section 302 IPC in addition to his conviction by the trial court under Section 148. Even the High Court, by the impugned judgment, has merely dismissed the appeal filed by the appellant herein upholding the conviction of Raju @ Raj Kumar under Section 148 IPC. It is argued before us, on behalf of the State, that we should convict the appellant herein under Section 302 IPC, particularly, when the reasoning given in the concurrent findings indicate that the appellant herein had stabbed the deceased in the chest with the knife. In our view, such a request cannot be granted. Offence under Section 148 IPC is distinct and separate from the offence under Section 302 IPC. The State should have filed an appeal seeking conviction of the appellant under Section 302 IPC apart from his conviction under Section 148 IPC. This has not been done in the present case. The offence of rioting with deadly weapon under Section 148 IPC is separate and distinct from the offence under Section 302 IPC. Moreover, according to the trial court, the cause of death is syncope.

It will not be proper at this belated stage to revive the whole proceeding and subject the petitioner to further harassment of a conviction by the trying Magistrate and also possibly of an appeal before the Sessions Judge. The mistake was partly that of the trying Magistrate and partly that of the prosecuting officers. The latter should have noticed the omission in the judgment of the trying Magistrate and then taken steps either by way of revision to this Court or by means of an appeal against acquittal, to get the mistake rectified.

(10) For the aforesaid reasons, I would allow this revision petition, set aside the conviction and sentence passed on the petitioner by the learned Sessions Judge, and acquit him. He should be set at liberty forthwith."

(13) Before concluding we may state that one of the arguments advanced on behalf of the State was that no prejudice would be caused to the appellant if he was to be convicted under Section 302 IPC. It was contended on behalf of the State that if one goes through the entire judgment of the trial court it is clear from the reasoning that the trial court had found the appellant guilty of murder under Section 302 IPC and that the appellant has never made any grievance against the said finding. It is submitted on behalf of the State that even in the special leave petition, before this Court, this particular ground has not been taken by the appellant. We find no merit in this contention. We cannot convict the appellant under Section 302 IPC in the appeal preferred by the appellant herein. If we were to do so it would amount to travesty of justice. We cannot convict the accused under Section 302 without the State filing an appeal in that regard. In the present case, the State did not move the High Court in appeal against the conviction under Section 148 and nor did the State seek enhancement of punishment before the High Court in appeal.

(14) For the above reasons, we find that the appellant herein was convicted under Section 148 IPC; that, he was not convicted under Section 302 IPC; that he was sentenced for three years with fine in addition, one month sentence in default of fine; and that Raju @ Raj Kumar (appellant herein) has served sentence for three years commencing from 9.3.2004 ending on 8.3.2007. We are not sure as to whether he has paid the fine of Rs.200/-, if not, he shall pay the fine forthwith. On payment of fine he should be set at liberty forthwith. If he fails to pay Rs.200/- as fine then he will have to serve the sentence of one month in default.

(15) Accordingly, the appeal is allowed.