Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 879 OF 2007

Daya Kishan             ... Appellant

Versus

State of Haryana   ...Respondent

J U D G M E N T

J.M. PANCHAL, J.

1. This  appeal,  by  grant  of  special  leave,  is  

directed  against  judgment  dated  August  21,  2006,  

rendered by Division Bench of High Court of Punjab and  

Haryana at Chandigarh in Criminal Appeal No. 277-DB  

of  2004,  whereby  the  High  Court  has  dismissed  the  

appeal  filed by the appellant  and confirmed judgment

dated January 19, 2004, passed by the learned Sessions  

Judge, Sonipat in Sessions Case No. 21 of 1999/2003  

convicting the appellant (1) under Section 302 read with  

Section 149 of Indian Penal Code (IPC) and sentencing  

him to R.I. for life and fine of Rs.3,000/- in default R.I.  

for two years, (2) under Section 307 read with Section  

149 IPC and sentencing him to R.I. for seven years and  

fine of Rs.2,000/- in default R.I. for one year, (3) under  

Section 323 read with Section 149 IPC and sentencing  

him to R.I. for one year and (4) under Section 148 IPC  

and sentencing him to R.I. for two years.

2. The facts emerging from the record of the case are  

as under: -

Bhale Ram is a resident of Village Jagsi.  He has  

constructed shops on Bus Adda of Village Jagsi.  There  

is  a  liquor vend in one of  the shops constructed by  

him, while one shop, i.e., tea stall was being run by his  

son Sanjay and nephew Rajesh,  son of  Balbir.   Two  

other shops are lying vacant and there is land behind  

these shops for tethering the cattle.  According to the  

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prosecution case a civil suit between Bhale Ram and  

the  appellant  regarding  the  land  was  pending  since  

long time.  The dispute relating to land was referred to  

Panchayat  of  the  village.   It  was the  claim of  Bhale  

Ram  that  the  said  dispute  was  settled  by  the  

Panchayat  but  thereafter  also  the  members  of  the  

family of the appellant were bearing a grudge against  

him and  his  family.   The  incident  in  question  took  

place on November 30, 1998.  At about 7.00 P.M. on  

the said date Sanjay and nephew of Bhale Ram were  

sitting in the shop when accused No. 1 Krishan, son of  

the appellant,  came to the shop and asked for some  

goods.  The goods were given by Sanjay to him.  When  

Sanjay  demanded  money,  an  altercation  ensued.  

Krishan threatened Sanjay that he would burn him.  

Krishan  went  back  to  his  house,  which  was  just  

behind the shop and after a short time (1) Krishan, (2)  

Pohla @ Sat Narayan, both sons of the appellant Daya  

Kishan,  (3)  the  appellant  Daya  Kishan  himself,  (4)  

Ajmer  and  (5)  Raja,  both  sons  of  Lalchand  Bairagi,  

came there.   They raised lalkara saying that  Sanjay  

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would not be spared by them.  Pohla was armed with a  

gun  whereas  Ajmer  was  armed with  Jelli  and  other  

accused including the appellant were armed with lathi.  

On coming to the place of incident, Pohla at once fired  

a shot at Rajesh from his gun, which hit on the chest  

of Rajesh.  When Sanjay went to the rescue of Rajesh,  

Pohla  fired  at  Sanjay  as  a  result  of  which  Sanjay  

sustained injuries.  The appellant gave a lathi blow on  

the  right  eye  of  the  informant  Bhale  Ram  whereas  

other accused, namely, Ajmer caused injury to the first  

informant with a jelli and Krishan gave a lathi blow on  

the  wrist  of  the  informant.   The  other  assailants  

caused injuries to the informant’s daughters, namely,  

Kamlesh  and Meena and wife  Kishni  and left.   The  

injured  were  taken  to  Health  Centre,  Gohana  from  

where  they  were  referred  to  PGIMS,  Rohtak.   When  

they  reached  PGIMS  Hospital,  Rohtak,  Rajesh  was  

declared brought dead whereas others were admitted  

to the hospital.   The first  informant Bhale Ram had  

also caused injury to the appellant in self-defence.  The  

Head Constable on duty at PGIMS Hospital,  Rohtak,  

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had  informed  the  police  station  about  the  injured  

having  been  admitted  in  the  hospital  for  treatment.  

Therefore, ASI Ram Prakash went to PGIMS Hospital  

and recorded the statement of Bhale Ram.  The ASI  

sent the statement to P.S.  Baroda for registration of  

FIR.  At the police station, FIR was registered against  

the  accused  for  commission  of  offences  punishable  

under Sections 148, 149, 323, 307 and 302 IPC as well  

as under Sections 27, 54 and 59 of the Arms Act.

3. The Investigating Officer  recorded statements of  

the witnesses, who were found to be conversant  

with the facts of the case.  Inquest was held on  

the dead body of the deceased and arrangements  

were made by the ASI for conducting post mortem  

examination on the dead body of  the deceased.  

On completion of the investigation the appellant  

and three other accused were charge-sheeted in  

the  court  of  learned  Judicial  Magistrate,  First  

Class,  Gohana  for  commission  of  offences  

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punishable  under  Sections  148,  149,  323,  307  

and 302 IPC as well as Sections 27, 54 and 59 of  

Arms  Act.   As  the  offences  punishable  under  

Sections 307 and 302 IPC are exclusively triable  

by Court of Sessions, the case was committed to  

Sessions Court, Sonepat for trial.  In the Charge-

sheet it was mentioned that accused Sat Narayan  

was  absconding  and  declared  proclaimed  

offender.  Subsequently,  he was arrested and a  

supplementary  challan  was  submitted  resulting  

into  registration  of  Sessions  Case  No.  122  of  

1999.

4. The  learned  Sessions  Judge  framed  charge  

against  the  appellant  and  other  accused  for  

commission  of  offences  punishable  under  

Sections 148, 149, 323, 307 and 302 IPC.  The  

same was read over and explained to them.  They  

pleaded not guilty to the same and claimed to be  

tried.   The  prosecution,  therefore,  examined  

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several  witnesses  and  produced  documents  in  

support  of  its  case  against  the  appellant  and  

others.   In  his  statement  under  Section  313  

accused  Krishan  denied  all  the  allegations  

levelled  against  him  by  the  prosecution.   He  

stated  that  when  he  was  present  in  his  house  

with his father  Daya Kishan,  i.e.,  the appellant  

and ladies, Sanjay, who was armed with Gandasa  

along with 20 to 25 persons armed with weapons  

came to his house and raised lalkara to teach a  

lesson to  them.  According to  him Sanjay gave  

Gandasa  blow  to  him  and  other  persons  who  

were in the house and therefore in the defence of  

himself  (Krishan)  and  other  members  of  the  

family,  his  father  Daya  Kishan  (‘the  appellant’  

therein) fired a shot from a gun.  Krishan further  

mentioned in  his  statement  that  other  accused  

namely  Ajmer,  Sat  Narayan  and Raja  were  not  

present in the house.

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Ajmer in his further statement stated that he  

was  not  present  at  the  time  of  occurrence  and  was  

falsely implicated.

The appellant in his statement under Section  

313 of Cr.P.C. denied the allegations of the prosecution  

and mentioned that when he was present in his house  

along with his son Krishan and ladies, Sanjay, who was  

armed  with  Gandasa  and  came  with  20  to  25  other  

persons  armed  with  weapons  came  to  his  house.  

According to him, after raising lalkara to teach him and  

others a lesson, Sanjay gave Gandasa blow to him and  

other persons and, therefore, to rescue him and his son,  

Krishan, he fired a shot from a gun and other persons,  

namely, Ajmer, Raja and Sat Narayan were not present  

at all.

Accused Raja denied all the allegations of the  

prosecution and stated that he was not present at the  

place of incident.  In defence the accused examined (1)  

Dr. Gaurav Bhardwaj as DW-1, (2) Bhan Singh as DW-

2, (3) Khajan Singh as DW-3 and (4) Dr. S.S. Gupta as  

DW-4.

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It  may be mentioned that after recording of  

defence  evidence  was  over,  three  other  accused,  i.e.,  

Krishan,  Ajmer  and Raj  Singh  alias  Raja  jumped the  

bail.  Their presence could not be procured despite the  

proclamation issued by the learned Additional Sessions  

Judge,  Sonipat.   Ultimately,  they  were  declared  

proclaimed  offenders  and  in  such  circumstances,  

Sessions Case  No.121 of  1999 was tried and decided  

only  against  the  present  appellant.   However,  

subsequently Raj Singh alias Raja was also arrested and  

his trial was concluded.  Raj Singh was convicted under  

Section 148/302/307/323 read with Section  149 IPC  

and  was  visited  with  sentences  mentioned  in  the  

judgment.

5. On appreciation of the evidence adduced by the  

parties, the learned Judge came to the conclusion  

that  it  was  proved  by  the  prosecution  beyond  

reasonable doubt that deceased Rajesh had died  

a  homicidal  death.   Placing  reliance  on  the  

depositions  of  the  injured  informant  and  other  

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witnesses, the trial  court concluded that it  was  

proved by the prosecution that there was no delay  

in  lodging  the  FIR  nor  any  evidence  could  be  

produced  to  suggest  that  the  First  Information  

Report was filed after due deliberation or that the  

accused were falsely implicated.  After referring to  

the  prosecution  story  as  narrated  by  the  

witnesses and defence version as narrated by the  

defence witnesses, the learned Judge came to the  

conclusion that the incident had taken place at  

the site mentioned by the prosecution and not at  

the  house  of  the  accused.   The  learned  Judge  

held that the deceased Rajesh had died because  

of the shot fired on him from a gun by Pohla @  

Sat  Narayan  and  he  had  also  injured  witness  

Sanjay,  who  had  gone  to  the  rescue  of  the  

deceased Rajesh.  According to the learned Judge  

it  was  not  probablised  by  the  defence  that  the  

appellant had fired shot at deceased Rajesh and  

Sanjay in exercise of right of self-defence whereas  

the  injuries  sustained  by  the  appellant  were  

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explained by the first informant Bhale Ram.  The  

learned  Judge  held  that  it  was  proved  by  the  

prosecution  that  the  accused  had  formed  an  

unlawful assembly, common object of which was  

to  cause  death  of  Rajesh  and  injure  other  

witnesses and, therefore, the appellant was liable  

to  be  convicted  under  Section  302  read  with  

Section 149 IPC, Section 307 read with Section  

149 IPC, Section 323 read with Section 149 IPC  

and  Section  148  IPC.   The  learned  Judge  

accordingly convicted the appellant and imposed  

sentences referred to above.   It  may be noticed  

that  in  Sessions  Case  No.122  of  1999/2003  

accused Sat Narayan alias Pohla was released on  

interim bail vide order dated 5.4.2000.  His bail  

was continued till the next date of hearing.  On  

27.4.2000, when Sat Narayan failed to surrender  

before  the  court,  warrants  for  his  arrest  were  

issued.  Despite best efforts, his presence could  

not  be  procured  and  hence  he  was  declared  

proclaimed offender  vide  order  dated  16.1.2001  

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by  the  learned  Additional  Sessions  Judge,  

Sonipat.   Thus,  Sessions  Case  No.122  of  

1999/2003 has remained unconcluded.   It  was  

clarified  by  the  learned  Sessions  Judge  that  

finding of conviction recorded against the present  

appellant  would  not  amount  to  expression  of  

opinion  for  or  against  other  remaining  four  

accused  unless  they  and  the  prosecution  are  

heard.   A  direction  was  given  by  the  learned  

Judge that file of this case and that of Sessions  

Case No.122 of 1999/2003 should be consigned  

to the record room but should be restored as and  

when the accused who are declared proclaimed  

offenders are produced by the police for hearing.

6. Feeling  aggrieved,  the  appellant  preferred  

Criminal Appeal No. 277-DB of 2004 before the  

High  Court  of  Punjab  and  Haryana  at  

Chandigarh.   The  Division  Bench  of  the  High  

Court  dismissed  the  same  by  judgment  dated  

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August  21,  2006,  giving  rise  to  the  instant  

appeal.

7. This Court has heard the learned counsel for the  

parties at length and considered the record of the  

case summoned from the trial court.

8. The  fact  that  the  deceased  Rajesh  died  a  

homicidal  death  is  not  challenged  before  this  

Court.  PW-3, Dr. Vimal Kumar Sharma stated in  

his testimony that he had conducted post mortem  

examination  on  the  dead  body  of  the  deceased  

Rajesh on December 1, 1998 at about 2.30 P.M.  

and found that there were bluish circular 0.5 cm  

to  1.00  cm  in  diameter  multiple  holes  on  the  

anterior  surface  of  chest  and  upper  part  of  

abdomen in the area of 25 cm x 22 cm starting  

from 5 cm. above the nipple and 6 cm. above the  

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umbilicus.  Margins were abraded and inverted.  

According  to  him  on  dissection  the  internal  

organs  were  found  perforated  and  pellets  had  

pierced the internal organs.  What is mentioned  

by him is that 26 pellets were found on internal  

examination of the body, which were handed over  

to the police.  According to the doctor, the cause  

of  death  of  the  deceased  was  shock  and  

haemorrhage caused by fire arm injuries, which  

were  ante  mortem  in  nature  and  sufficient  to  

cause death in ordinary course of  nature.   The  

testimony of the doctor, who performed autopsy  

on the dead body of the deceased, gets complete  

corroboration from the contents of post mortem  

notes produced by the prosecution.  On the facts  

and in the circumstances of the case this Court is  

of  the  opinion  that  it  is  proved beyond pale  of  

doubt  that  the  deceased  Rajesh  had  died  a  

homicidal death.

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9. The  trial  court  as  well  as  the  High  Court  had  

relied upon the testimony of injured informant as  

well as other witnesses and had rightly recorded  

the  conclusion  that  the  deceased  had  died  

because of shot fired at him by the accused Pohla  

from his gun.  The Sessions Court referred to the  

injuries  sustained  by  Sanjay  and  has  correctly  

come  to  the  conclusion  that  he  had  sustained  

injuries from the shot fired by the accused Pohla.  

The  other  findings  recorded  by  the  Sessions  

Court and the High Court relating to commission  

of offences under Sections 323, 307 and 148 IPC  

are  based  on  appreciation  of  reliable  evidence.  

The learned counsel for the appellant has failed  

to satisfy this Court that those findings are either  

perverse  or  not  borne  out  from  the  evidence.  

Under the circumstances those findings deserve  

to be confirmed and are hereby confirmed.   

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10. The  only  point  argued  was  that  the  appellant  

could  not  have  been fastened  with  the  liability  

under Section 302 read with Section 149 IPC for  

the  death  of  Rajesh,  which  was  caused  by  the  

accused Pohla @ Sat Narayan.  According to the  

learned counsel for the appellant, the prosecution  

has  not  proved  that  common  object  of  the  

unlawful  assembly  was  to  cause  death  of  the  

deceased Rajesh, but at best it can be said that it  

was  proved  by  the  prosecution  that  common  

object  of  the  assembly  was  to  teach  Sanjay  a  

lesson  and  in  that  process  to  injure  him  and,  

therefore, the instant appeal should be accepted.  

It was maintained that the act of Sat Narayan of  

firing a shot at Rajesh was his individual act and,  

therefore,  the  appellant  should  not  have  been  

convicted  for  murder  of  Rajesh with  the  aid  of  

Section  149  IPC.   The  learned  counsel  

emphasised  that  the  prosecution  has  failed  to  

prove  that  the  appellant  knew  that  death  of  

Rajesh was likely to be caused by any member of  

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the  unlawful  assembly  in  prosecution  of  the  

common  object  because  common  object  of  the  

unlawful assembly was to teach a lesson to PW-

10, Sanjay and, therefore,  the conviction of  the  

appellant  under  Section  302  with  the  aid  of  

Section 149 IPC should be set aside.   

11. The learned counsel for the State contented that  

the appellant  himself  armed with a lathi  was a  

member of unlawful assembly, common object of  

which was to cause death of  Sanjay as well  as  

those  who  were  accompanying  him  and,  

therefore,  it  is  not  correct  to  say  that  the  

provisions of Section 149 IPC would not apply to  

the facts of the case.  According to the learned  

counsel for the State, the appellant, who was a  

member of the unlawful assembly, had come with  

other four accused and was armed with lathi and  

after  fatal  injury  was  caused  to  Rajesh  and  

Sanjay  was  seriously  injured  with  others,  the  

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appellant had left the place of incident with other  

accused and, therefore,  the Sessions Court and  

the High Court committed no error in convicting  

the appellant under Section 302 with the aid of  

Section  149  IPC for  causing  death  of  deceased  

Rajesh.  What was maintained was that sufficient  

evidence  was  brought  on  record  by  the  

prosecution  to  prove  that  the  appellant  had  

known  that  death  of  the  deceased  Rajesh  was  

likely to be caused by any member of unlawful  

assembly  in  prosecution  of  the  common  object  

and,  therefore,  well  recorded  conviction  of  the  

appellant  under  Section  302  read  with  Section  

149 IPC should be upheld by this Court.

12. Section  149  IPC  creates  a  constructive  or  

vicarious liability on the members of the unlawful  

assembly  for  the  unlawful  acts  committed  

pursuant  to  the  common  object  by  any  other  

member  of  that  assembly.   The  basis  of  the  

constructive guilt under Section 149 IPC is mere  

membership of the unlawful assembly, with the  

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requisite  common  object  or  knowledge.   This  

Section  makes  a  member  of  the  unlawful  

assembly responsible as a member for the acts of  

each and all, merely because he is a member of  

an unlawful assembly.  While overt act and active  

participation  may indicate  common intention of  

the  person  perpetrating  the  crime,  the  mere  

presence  in  the  unlawful  assembly  may  fasten  

vicariously  criminal  liability  under  Section 149.  

There  are  two  essential  ingredients  of  Section  

149,  viz.,  (1)  commission  of  an  offence  by  any  

member  of  an unlawful  assembly  and (2)  such  

offence must have been committed in prosecution  

of the common object of that assembly or must be  

such as the members of that assembly knew to be  

likely to be committed.  Once the court finds that  

these two ingredients are fulfilled, every person,  

who at the time of committing that offence was a  

member of the assembly has to be held guilty of  

that offence.  After such a finding, it would not be  

open to the court to see as to who actually did the  

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offensive act nor it would be open to the Court to  

require  the  prosecution  to  prove  which  of  the  

members  did  which  of  the  offensive  acts.  

Whenever  a  court  convicts  any  person  of  an  

offence with the aid of Section 149, a clear finding  

regarding  the  common  object  of  the  assembly  

must be given and the evidence discussed must  

show not only the nature of the common object  

but that in pursuance of such common object the  

offence was committed.  There is no manner of  

doubt that before recording the conviction under  

Section  149  IPC,  the  essential  ingredients  of  

Section 149 IPC must be established.

13. Applying  the  abovementioned  well  settled  

principles  to the facts  of  the  present case,  this  

Court finds that the prosecution has not led any  

evidence to prove that the accused party had any  

grievance or grudge against the deceased Rajesh,  

who  was  nephew  of  the  first  informant  Bhale  

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Ram.   The  only  fact,  which  can  be  held  to  be  

proved  by  the  prosecution,  is  that  the  accused  

Krishan had an altercation with Sanjay relating  

to purchase of some goods, after which Krishan  

had threatened Sanjay and had then left the shop  

and come back within a short duration with other  

four accused including the appellant,  who were  

variously armed.  The further fact proved by the  

prosecution is that immediately on coming to the  

place of incident, the son of the appellant named  

Sat Narayan @ Pohla had fired a shot at Rajesh  

without  any  provocation  or  previous  enmity  or  

any other reason.  It may be mentioned that the  

defence  had  tried  to  prove  enmity  between the  

first  informant  and  the  appellant  but  the  

substantive  evidence  of  first  informant  Bhale  

Ram,  examined  as  PW-4,  and  injured  Sanjay,  

examined  as  PW-10,  in  fact  goes  to  prove  that  

there  was no such dispute  relating to the land  

and/or enmity between the first informant Bhale  

Ram  and  the  appellant.   The  record  does  not  

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indicate  that  any  altercation  had  taken  place  

between Krishan, who is son of the appellant, and  

deceased Rajesh when accused Krishan had gone  

to  the  shop  of  injured  Sanjay  for  purchasing  

certain articles.  In fact, the altercation had taken  

place  between  Krishan  and  injured  Sanjay.  

Though it  was the case of the prosecution that  

after reaching the place of incident, the members  

of the unlawful assembly had given lalkara before  

the attack, the first informant in his substantive  

evidence  before  the  court  has  not  mentioned  

anything about the said lalkara though it was so  

mentioned by him in his FIR.  Thus, the fact that  

lalkara was made before the attack will have to be  

disbelieved.  If the evidence of the injured witness  

is  appreciated  in  the  above  background,  it  

becomes  evident  that  no  evidence  could  be  

adduced  by  the  prosecution  to  establish  that  

common object of the unlawful assembly was to  

do away with Rajesh or cause any injury to him.  

As  mentioned  earlier  the  evidence  clinchingly  

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establishes  that  immediately  after  reaching  the  

place  of  incident  a  shot  was  fired  by  accused  

Pohla  from  his  gun.   It  would  have  been  a  

different matter if Rajesh had suffered injuries in  

some  other  manner,  e.g.,  Rajesh  had  tried  to  

intervene when  Sanjay was being  attacked  and  

was shot at.  In such circumstances provisions of  

Section 149 IPC could have  been well  invoked.  

There is no evidence regarding meeting of minds  

or  formation of  the  common object  even at  the  

spur  of  the  moment,  when  Pohla  immediately  

after  reaching the place of  incident  shot at  the  

deceased Rajesh.  There is no evidence suggesting  

that the appellant said something to indicate that  

he wanted the  deceased to be done away with.  

There is nothing to establish that the appellant  

knew that Pohla would cause fatal injuries to the  

deceased,  though  the  appellant  must  have  

anticipated  that  Pohla  would  cause  injuries  to  

Sanjay.   In  the  present  case,  no  overt  act  is  

attributed to the appellant so far as the deceased  

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is concerned.  Mere fact that the appellant was  

armed with a lathi by itself would not prove that  

he shared common object  with which the main  

accused Pohla was inspired.  The prosecution has  

not led the evidence to establish nexus between  

the  common object  and  the  offence  committed.  

The  appellant,  being  father  of  the  accused  

Krishan,  who  had  an  altercation  earlier  with  

injured Sanjay, had accompanied Krishan, which  

can be termed as natural conduct on the part of  

the appellant.  It is relevant to notice that in the  

course of the incident the appellant himself had  

sustained serious injuries.  The testimony of PW-

14,  Dr.  Rajesh  Saini  indicates  that  he  had  

examined  the  appellant  Daya  Kishan  on  

December  1,  1998  at  2.30  P.M.  and  noticed  

abrasion of 1.5 cm x 0.2 cm on anterior surface of  

left  leg  and  swelling  around  the  abrasion.  

According  to  him  the  movements  of  leg  were  

restricted and he had also found lacerated wound  

of  6  cm x 0.3  cm on left  parietal  region.   The  

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testimony of Dr. Gaurav Bhardwaj, examined as  

DW-1,  makes  it  clear  that  the  appellant  had  

sustained fracture of both bones of the left leg for  

which POP cast was given.  As noticed earlier the  

first informant Bhale Ram has mentioned in his  

First Information Report itself that he had caused  

injuries to the appellant in exercise of his right of  

self-defence.   The record does not indicate  that  

the  injuries  sustained  by  the  appellant  were  

caused by deceased Rajesh.  It is not the case of  

the  prosecution that  the  appellant  retaliated  or  

asked others to attack the first informant despite  

having  received  serious  injuries,  which  would  

indicate  that  the  appellant  had  no  grudge  nor  

shared the object with which the accused Pohla  

had fired shot at the deceased Rajesh.  The only  

circumstance  on  the  basis  of  which  the  

prosecution  wants  to  hold  that  the  common  

object  of  the unlawful  assembly was to murder  

Rajesh is that Pohla had a gun and the appellant  

was a member of an unlawful assembly.  The test  

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for application of Section 149 IPC as suggested by  

the  prosecution  cannot  be  accepted.   On  the  

peculiar  facts  and  in  the  circumstances  of  the  

case it can be safely concluded that the appellant  

did  not  share  common  object  of  one  of  the  

members  of  the  unlawful  assembly  to  cause  

death  of  Rajesh.   The  appellant  cannot  be  

reasonably attributed with knowledge that there  

was  likelihood  of  commission  of  murder  of  

Rajesh,  because  no  altercation  or  quarrel  had  

taken  place  between  Rajesh  and  the  accused  

Krishan nor there was any enmity between the  

appellant and Rajesh.  Under the circumstances,  

this Court is of the opinion that the conviction of  

the  appellant  recorded  under  Section  302  read  

with  Section  149  IPC  for  causing  death  of  

deceased Rajesh is not well-founded and is liable  

to  be  set  aside.   As  far  as  conviction  of  the  

appellant  under  Section  307  read  with  Section  

149 IPC is concerned, this Court finds that the  

said  conviction  recorded by the  Sessions  Court  

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and affirmed by the High Court is amply borne  

out from the evidence on the record.  So also the  

learned  counsel  for  the  appellant  could  not  

demonstrate that the conviction of the appellant  

under Section 323 read with Section 149 IPC and  

under  Section  148  IPC  are  contrary  to  the  

evidence on record.  Therefore, those convictions  

will have to be upheld.

14. The net result of the above discussion is that the  

appeal filed by the appellant partly succeeds.  His  

conviction under Section 302 read with Section  

149 IPC for causing death of the deceased Rajesh  

recorded by the Sessions Court and affirmed by  

the  High  Court  is  hereby  set  aside.   His  

conviction under Section 307 read with Section  

149  IPC  for  attempting  to  commit  murder  of  

injured  Sanjay,  under  Section  323  read  with  

Section 149 IPC and under  Section  148 IPC is  

confirmed.   This  Court  also  finds  that  the  

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sentences  imposed  on  the  appellant  for  

commission of abovementioned offences are just  

and proper and no case is made out to interfere  

with the same.

15. Subject to above observations, the appeal stands  

disposed of.

 …………………………J. [J.M. Panchal]

…………………………J. [Deepak Verma]

New Delhi; April 22,  2010.

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