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PETITIONER: HARICHARAN & ANR.

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       22/10/1997

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

ACT:

HEADNOTE:

JUDGMENT:                THE 22ND DAY OF OCTOBER, 1997 Present:                Hon’ble Mr. Justice G.T. Nanavati                Hon’ble Mr. Justice V.N. Khare Kailash Vasdev, Adv. for the appellants. K.S. Bhati, Adv. for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: Nanavati, J.      The two  appellants, along  with two  others have  been convicted for  committing murder of Ram Babu.  What has been proved against them is that they formed an unlawful assembly and in  prosecution of  the common  object of  the  unlawful assembly, on  27.2.1981 at  about 1.00  p.m. they armed with weapons, stopped  the bus  going from  Dholpur to Khuthiyana Ghat, asked the passengers to get down attempted to drag out Ram Babu  conductor of  the bus  and then appellant Rammo by firing two  shots from  his gun  and others by their weapons injured and thereby killed Ram Babu.      In order to prove it case, the prosecution had examined 3 eye-witnesses  PW -  1 Kedarnath, PW - 3 Ramjilal and PW-6 Satpal Singh the driver o the bus.  PW-7 did not support the prosecution and  he was required to be cross-examined by the public prosecutor,  Learned trial court did not believe PW-3 Ramjilal who  was the  brother of the deceased on the ground that he  was not  present in  the bus.    Relying  upon  the evidence of  Kedarnath the trial court convicted Rammo (A-1) under Section 302 IPC and others under Section 302 read with Section 49  IPC.   All the four accused applied for leave to appeal to  this Court.  Leave was granted to Hari Charan (A- 3) and Siya Ram (A-4) and the application of Rammo (A-2) and Kailashi (A-5) was dismissed.      What is  contended  by  the  learned  counsel  for  the appellants is that so far as A-3 and A-4 are concerned there is no clear evidence regarding any overt act suggesting that they were  acting in prosecution of the common object of the unlawful assembly  or that  they were  even members  of  any unlawful assembly.   It was also contended that even if they are held  to be  members of an unlawful assembly, in view of absence of  any evidence  to prove  that they  had taken any

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part in  killing Ram  Babu it cannot be said that his murder was committed  in  order  to  achieve  the  object  of  that unlawful  assembly.     Therefore,  their  conviction  under Section that unlawful assembly.  Therefore, their conviction under Section 302 IPC read with Section 49 is not correct.      We have  carefully gone  through the  evidence of  PW-1 Kedarnath.   He has  in clear  terms stated  that the bus in which he  was travelling  was topped  by five  persons  near Faratpur.   The persons  who had  stopped the bus were armed with weapons and Rammo had carried a gun.  After sopping the bus he had put the gun on the chest of the driver Satpal and with a  threat told him not to move the bus ahead.  They had tried  to   pull  down   the  conductor  by  they  were  not successful.   Thereafter accused  Rammo had  fired two shots and injured  him.   Thereafter accused  Rammo had  fired two shots and  injured  him.    The  remaining  three  had  also assaulted him  with their  weapons.   After killing Ram Babu they ran  away.  So far as this witness is concerned we find that he  stands corroborated  by the evidence of Ram Swaroop PW-2 who  had stated  that at  about  3.000  p.m.  Kedarnath informed him  about the  incident.  On the basis of the said information  he   had  immediately  prepared  a  report  and submitted the  same at the Police Station.  That report also contains the  names of  Kedarnath and  Satpal as the persons who had seen the incident and informed the witness about it. The attempt of the defence was to show that this witness was not travelling  by that bus as he stood contradicted when he stated that  he  was  returning  after  purchasing  ’Gwarsa’ fertilizer whereas  the bill  produced by him discloses that he had  purchased urea on that day.  This discrepancy in his evidence cannot  be regarded  as  sufficient  to  doubt  his presence in  the bus.   Even though Satpal turned hostile to the  prosecution   his  cross-examination   by  the   public prosecutor also  indicates that  Kedarnath was with him when he went to inform Ramjilal and that he was travelling in the bus with  bags of  fertilizers.  Nothing has been brought in his evidence to show that he was not travelling by that bus. Both the  courts below  have relied  on the evidence of this witness and  we find  that his  evidence  has  been  rightly appreciated      Once we  accept the  evidence of  Kedarnath it  becomes clear that  all the  five accused were acting in prosecution of their  common object.  As stated earlier they had gone to the place  of incident  armed with weapons, stopped the bus, put the gun on the chest of the driver Satpal and threatened him to  shoot as if he drove the bus ahead.  They had caught hold of Ram Babu and tried to drag him our.  Rammo had fired two shots  a him  and other  accused had  assaulted him with other weapons.   They  had run away together.  Therefore, we are  of   the  opinion  that  the  appellants  were  rightly convicted under  Section 302  IPC read  with Section 49. The appeals is, therefore, dismissed.      The appellants  are directed to surrender to custody to serve out  the remaining  part of their sentence.  The State is also directed to take him in custody and take appropriate steps for the said purpose.