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PETITIONER: REWA RAM

       Vs.

RESPONDENT: TEJA AND ORS.

DATE OF JUDGMENT:       03/03/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI. J.      Even though  in the  Cause Title  of  the  Appeal  five persons are shown as respondents, it has to be treated as an appeal against  three respondents  only, as  the  respondent Nos. 2  and 3  had died  during the  pendency of  the appeal before the High Court.      The three  respondents were  tried along  with  Jagdish Singh and  Jay Narayan  for the  offences  punishable  under Sections 148 and 302 IPC for causing death of Ram Bharose on 16.2.1982  at  11.00  a.m.  The  trial  court  believed  the evidence of P.W. 4 Rewa who was with Ram Bharose at the time of the  incident and  also of  P.W. 3 Ram Avtar who had seen the incident while standing near the house of Kishan Lal and convicted all  the five  accused under  Section 148  and 302 IPC. All  the five  convicted accused filed an appeal before the High  Court. Accused Jay Narayan and Jagdish died during the pendency  of the  appeal and,  therefore,  their  appeal abated. The  High Court on reappreciation of the evidence of P.W. 3  Ram Avtar  and P.W.  4 Rewa  Ram held that they were present at  the time of the occurrence and could be accepted as truthful  witnesses. The  High Court,  therefore,  relied upon their  evidence and held that the accused had assaulted Ram Bharose  High Court,  however,  did  not  confirm  their conviction under  Section 302  IPC for the reason that there was no charge against them that the death of Ram Bharose was cause, in  furtherance of  the common object of the unlawful assembly of  which they  were the  members. The  High Court, therefore, held  that they  could be held quality only under Section 326  IPC   common object  was to assault Ram Bharose and commit rioting with deadly weapons.      We have also gone through the evidence of P.W. 3 and 4. From their  evidence it  is not  possible to say which fatal injury was  caused by  which accuse.  The two witnesses have specifically referred to only about 8 to 10 injuries whereas on the  person of  Ram Bharose  as many  as 51 injuries were found. As  it was  not possible  to hold  who had caused the fatal  injury  to  the  deceased,  the  High  Court  rightly convicted them under Section 326 IPC.      As we  do not  find any substance in this appeal, it is

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dismissed. The bail bonds are ordered to be cancelled.