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CASE NO.: Appeal (crl.)  664 of 2007

PETITIONER: Raju @ Raj Kumar

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 03/05/2007

BENCH: S. H. Kapadia & B. Sudershan Reddy

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.    664       OF 2007 (Arising out of S.L.P. (Crl) No.4446 of 2006)

KAPADIA, J.

(1)     Leave granted. (2)     This criminal appeal by grant of special leave is  directed against impugned judgment dated 13.1.06  delivered by Rajasthan High Court at Jaipur in D.B.  Criminal Appeal No.660/04 confirming the conviction  under Section 148 IPC imposed by Addl. District and  Sessions Judge, Jaipur, in Session Case No.49/2001.

(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

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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.

(4)     In this case, we are concerned with the conviction of  Raju Naik (appellant herein).  He was charged for  offences under Sections 302, 120B, 148, 149 and 460  IPC.   

(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.

(6)     On the merits of the case, we find that there is no  reason to disbelieve Uttam Prakash (pw.4), the son of  Ram Kishan Khandelwal (deceased).  The incident took  place on 1.9.89 around 9 pm when the deceased was  sitting on the bed.  Uttam Prakash (pw.4) and his father,  Ram Kishan Khandelwal, had gone for dinner at his  uncle’s place at C-10, Madan Kunj, Prithvi Raj Road,  Jaipur.  When the deceased was sitting on the bed Uttam  Prakash (pw.4) saw 10 to 12 persons entering the room  and surrendering Ram Kishan Khandelwal.  They were  armed with knives, swords and pick-axes.  Uttam  Prakash (pw.4) saw the deceased being stabbed.  Uttam  Prakash (pw.4) has deposed that it was dinner time, that  the deceased was sitting on the bed whereas he was in  conversation with his aunt.  Both the courts below have  come to the conclusion, placing reliance on the post- mortem report, that there was an injury on the chest of  the deceased and that the knife and the clothes recovered  vide Ex.P.32 had human blood.  The cause of the death,  as given in the post-mortem report, was syncope.  There  was one more witness Rattan Devi (pw.20) but she could  not identify the appellant in the identification parade.   However, both the courts below have come to the  conclusion, on the basis of the evidence of pw.4 that the  appellant herein (Raju @ Raju Kumar) was a member of  the unlawful assembly; that he carried the knife; that he  had entered the room where the deceased was sitting on  the bed and that Ram Kishan Khandelwal (deceased) was  stabbed to death by the appellant herein.  In the

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circumstances, we do not find any infirmity to the extent  of the conviction of the appellant herein under Section  148 IPC. (7)     The question is : whether this Court in special leave  petition could convict the appellant under Section 302  IPC without any appeal from the State.

(8)     Now coming to the second issue, we find that in this  case seven out of ten accused were convicted by  Additional District and Sessions Judge, No.1, (Fast  Track) Jaipur City, Jaipur, for different offences.   Appellant herein was charged under Section 148, 302,  120B and 460 IPC.  However, he has been convicted  under Section 148 IPC.  According to the trial court the  cause of death is syncope.  According to Butterworth’s  Medical Dictionary, ’Syncope’ is a temporary loss of  consciousness caused by a fall in blood pressure.

(9)     We also quote hereinbelow paras ’65’ and ’66’ of the  said judgment which read as follow:

"65. From the above decision I have reached  the conclusion that out of all the accused, the  accused No.(1) Abdul Aziz s/o Salamuddin,  accused No.2 Raju @ Raj Kumar s/o Mali  Ram, accused No.3, Durga Das @ Bhaya s/o  Bhanwar Lal have committed punishable crime  u/s 460, 148 and 302 of Indian Penal Code for  which their crime is hereby proved and the  accused No.4, Feroz @ Shreya s/o babu Khan  has committed punishable crime under the  Indian Penal Code Section 148, 302/149, 460  for which their crime is hereby proved and the  accused No.5 Hanuman Sahai s/o Mahadev  Prasad, accused No.6 Chhitar Mal s/o  Mahadev Prasad, accused No.7 Mohd. Haneef  s/o Abdul Hakim have committed punishable  crime u/s 302/120B of the Indian Penal Code  for which their crime is hereby proved and the  accused No.8 Sayeed s/o Abdul Rasheed is  acquitted from the allegations of punishable  crime under Section 302 read with Section  149, 148, 120B and 460 of Indian Penal Code.

66.  This case is a matter of murder,  conspiracy to murder and co-operation in  murder for which it would be justified to  punish the accused with the minimum  punishment and for rest of the crime the  accused were heard, for which they are  punished with rigorous imprisonment as  mentioned below:

SENTENCE

       Therefore, the accused mentioned below  on being found guilty under Section as  mentioned against each under Indian Penal  Code are punished as below:

Sl.  NO. Name of  the  Accused

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Section Punishment Penalty Illegible   (sic) 1. Abdul Aziz 460 Ten years 500/- 3months 2. Raju @ Raj  Kumar 148 Three years 200/- 1 month 3. Durga Das  @ Bhaya 302 Life  Imprisonment  1000/- 6months 4. Feroz @  Sherya 460 Ten years 500/- 3months

148 Three years 200/- 1 month

302/149 Life  Imprisonment 1000/- 6months 5. Hanuman  Sahai 302/120B Life  Imprisonment 1000/- 6months 6. Chhitar  Mal  - do -   - do -  - do -   - do - 7. Mohd.  Haneef  - do -

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 - do -  - do -   - do -

       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.   

(11)    In the case of Satbir  v.  Surat Singh and others \026  AIR 1997 SC 1160, the accused was sentenced under  Section 302/148 IPC and, therefore, this Court took the  view that separate sentence under Section 148 was not  necessary.  

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(12)    In the case of Nanda Kishore Mohanty  v.  The  State of Orissa \026 AIR 1961 Orissa 29, it has been held  that once a charge under Section 148 IPC was framed the  Magistrate must say whether the person charged is  convicted or acquitted.  In that case, though the  petitioner was charged under Section 148 IPC, the  judgment of the Magistrate was silent as to whether  petitioner was guilty or not.  The Additional Sessions  Judge assumed that the petitioner stood convicted under  Section 148 IPC altered the conviction to Section 147  IPC.  In that case, the petitioner was also charged under  Section 455/149 IPC and under Section 323/149 IPC.  In  that connection, it was held as under :-

"(6) Another serious mistake committed  by the Magistrate was his omission to mention  expressly in his judgment as to whether he  convicted the petitioner under Section 148, I.  P. C., or not. Once a specific charge under that  section was framed, the Magistrate must  expressly say whether he convicts the accused  of that offence or whether he acquits him of  that offence. Though the petitioner was  charged under Section 148, the judgment of  the Magistrate is silent as to whether that  charge was proved or not. The learned  Sessions Judge also committed an error by  overlooking this mistake on the part of the  trying Magistrate and assuming that there was  a conviction under that section by the  Magistrate and that he would be justified in  altering it to a conviction under Section 147, I.  P.C. It is indeed unfortunate that in cases of  this type where sentences of imprisonment  have been passed the two lower courts should  have committed such obvious mistake,  presumably through negligence.

(7) The net result therefore is that though  the petitioner was charged under Section 148,  I. P. C., the trying Magistrate has not passed  any order, either of conviction or acquittal in  respect of that charge and the Sessions Judge  has convicted him under Section 147, I. P. C.  The omission of the trying Magistrate to  convict the petitioner under Section 148, I. P.  C., must in the circumstances be held to mean  that he was acquitted of that charge. It is  immaterial whether this omission was due to  oversight or any other reason. Once there is,  thus, an acquittal of the petitioner of the  charge under Section 148, I. P. C., the  Sessions Judge has no jurisdiction to alter the  conviction to one under Section 147, I. P. C.  The State should have moved the High Court  for setting aside the order of acquittal in  respect of the charge under Section 148. But  this they did not do.

(8) The acquittal of the petitioner in  respect of the offence under Section 148, I. P.  C., will also affect his conviction under Section  455/149, I. P. C., and 323/149, I. P. C. The

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conviction for these two offences is based on  the assumption that the petitioner was a  member of the unlawful assembly but his  acquittal in respect of the charge under  Section 148, I. P. C., must necessarily lead to  the inference that he was not a member of  such an assembly. Hence, his conviction under  Sections 455 and 323, I. P. C., read with  Section 149, I. P. C., must be set aside.

(9) There seems some force in the  contention of the learned Standing Counsel for  the State of Orissa, that the initial mistake was  committed by the trying Magistrate through  oversight, and he suggested that the case  might be remanded to the trying Magistrate for  recording a proper order either of conviction or  of acquittal in respect of the charge against the  petitioner under Section 148, I. P. C.

But I am not satisfied that at this stage it  will be proper to remand the case for the  aforesaid purpose. The incident took place  more than four years ago, i.e., on 6-10-1955,  and the petitioner has been sufficiently  harassed because the appeal was first heard  by the Addl. Sessions Judge but the judgment  was set aside by the High Court in Criminal  Revision and the appeal was reheard by the  Sessions Judge of Cuttack.

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

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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.