http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: JAI SINGH @ BANDU AND ANOTHER

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       24/04/1996

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) RAY, G.N. (J)

CITATION:  JT 1996 (4)   728        1996 SCALE  (3)786

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA.J.      Two Mahalle  brothers - Narendra and Ramesh - Were done to death  on the  night intervening 4th 5th September, 1978. Five persons  were booked  for trial  for the  murder  which included two  Rathod brothers  - Jai Singh and Raj Singh. Of the three  remaining accused,  and Raj  Singh. Of the Rathod brothers and  two-Ghanshyam and Sudhakar -are said to belong to the of Rathod brothers. 2.   To start  with, the  relationship between  the  Mahalle brothers and  Rathod brothers  was quite thick. They used to take keen  interest in  the local  panchayat politics. They, however, fell out when the election for Shegaon village took place in  the month  of May,  1978. Gadgenagar, in which the two deceased  resided, was  a part  of village Shegaon. Both the groups  wanted their  own candidate  to became Sarpanch. Bhaskar Kale was the candidate of the Rathod brothers, while Mahalle brothers  desired their  relative  Dilip  to  become Sarpanch. It  is Bhaskar,  however,  who  got  elected.  The relationship got  strained thereafter and political jealousy are. Nothing  untoward occurred till Pola of 1978; but after Pola occurred  on 2.9.1978,  Bhaskar was severally beaten on the afternoon  of 3rd  September at  Amravati. He  had to be hospitalized.  Accused  Raj  Singh  @  Raju  suspected  that Narendra had  some hand  in the  incident.  Thereafter,  the present occurrence  occurred past  midnight of 3rd September itself, when, it is alleged, that the aforesaid five persons murdered  the  two  Mahalle  brothers.  The  trial  saw  the conviction of the five accused under section 302/149; in the alternative 302/34.  The accused  were also  convected under sections 147 and 148. 3.   The five convicts preferred four different appeals. The State also  appealed as the trial court had awarded sentence of life  imprisonment for  the principal  offence of murder. According to  the State, Stake, death penalty was the proper sentence. The  High Court by the impugned judgment dismissed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

all five appeals. 4.   During the  pendency  appeal  before  the  High  Court, accused No.3,  Devi Das  had died.  During the  pendency  of these appeals.  accused No.5 Sudhakar, has died. We are thus required to  find out whether accused Nos.1. 2 and 4, namely Jai Singh  & Bandu,  Raj singh  @ Raju  Ghanshyam have  been legally convicted under the aforesaid sections. 5    Being seized with judgment of affirmance, we are really called upon  to decide whether the conviction is against the weight of  materials on  record or  suffers form  any  legal infirmity. As to the latter, submission advanced is that the courts  below   erred  in   law  in   awarding   alternative convictions with  aid of  section alterative conviction with the aid  of section  34  as  149  of  the  Penal  Code.  The submission must  be taken  to have  been  squarely  answered against the  appellants because of what has been stated by a Constitution Bench  in Willie  (William) Slaney vs. State of Madhya Pradesh,  AIR 1956  SC 116.  In That case, this Court spelt out  the scope  of two sections and, what is important for our  purpose, the  fact of absence of charge under these sections. There the charge was under section 302/34, but the only co-accused having been acquitted, the conviction of the left out  accused, who  was the appellant, was challenged on the ground  that the  element of common intention having got dropped  out,  the  conviction  of  the  appellant  was  not sustainable. In  the two concurring judgments it was pointed out that  the omission  to frame  a frame  a charge  or  the departure  from   the  charge   cannot   cannot   invalidate conviction unless  prejudice hes  been caused.  We would say the same  about the  about the alternative conviction in the present case.  We, therefore, find no legal infirmity in the convection as awarded. 6.   Insofar as  the factual aspects are concerned, there is much to  deal with  insofar as Bandu and Raju are concerned. They have  been named  as assailants,  and categorically, by the two  deceased, who  are examined  as PWs.2  and  3.  The medical findings  amply corroborate their evidence. Recovery of some  articles having  human blood  in them  lend further Assurance as  regards their  guilt. The  fact  that  accused Bandu was  a resident  of Badnera of Amravati, Which is at a considerable distance form Gadgenagar, which fact is brought to our  notice to  throw doubt  on his  involvement, is  not material because  Gadgenagar is  also a part of Amravati. So too the  fact that the group of the blood found on the dhoti of Raju  could not  be determined,  cannot be taken to be an exculpatory circumstance,  as has  been urged by Shri Sushil Kumar appearing  for him,  because though the blood group in the dhoti  could not be determined, the motorcycle which was found at  the spot and which admittedly belonged to Raju had bloods tains on it. this clearly shows that Raju had come to place of  occurrence on his motorcycle along with others the facts as found, therefore, clearly establish his involvement in the  crime. His name is the FIR lodged within an house of the  occurrence   leaves  nothing  to  doubt  regarding  his involvement. 7. The  main contention of Shri Sushil Kumar and Shri Mittal is really  related to the conviction of appellant Ghanshyam. In this  connection, it has been first submitted that in the FIR  accused   persons  were   stated  to   be  resident  of Gadgenagar, whereas  Ghanshyam lived  in  Moraba,  which  is about 2-3  kms. away  from Gadgenagar. It is also urged that he was  not in village politics and as such and no motive to take the  lives of  the two  Mahalle brothers.  The  further submission is  the tin  the FIR  his surname  had  not  been given, as  that document  speaks only of Ghanshyam and there

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

is material  on record  to show that many Ghanshyams resided in Gadgenagar.  The finale  is that  the  courts  below  had disbelieved  his   participation  in   the  Crime.  We  are, therefore, urged  to accept the plea of alibi as advanced by him; more so, as he had no injury on his person and no blood stains were found on the cloths seized from him. 8.   The FIR  having been  lodged close  on the heels of the murder of  two adult  male members,  it cannot be reasonably expected that  the widows would have mentioned the places of residence of  each accused  separately. So,  we do  not find reason to  disbelieve the  eye-witnesses  about the presence of Ghanshyam  at the  spot merely  because it happened to be stated in  the FIR  that all  the culprits were residents of Gadgenagar. It  has to  be remembered  that Moraba is also a locality of  Amravati, as  is Gadgenagar.  It deserves to be pointed out that appellant Ghanshyam had come to be arrested at about  4 am.  of 4th September itself which clearly shows that it  was he who had been involved in the crime. the non- mention  of   surname  of   ghanshyam  in  the  FIR  has  no importance, in  view of  what has been stated above and also because  in   the  dying   declaration  about   which   PW.2 Chandraprapha deposed, her husband Narendra had stated about "Ghanshyam Agrawal"  being one of the assailants when Rithe, a neighbour,  had asked  Narendra as  to who  had caused the injuries. the surname of appellant Ghanshyam is Agrawal. 9.      The fact  that appellant  Ghanshyam was not directly involved in politics cannot throw doubt about his sharing of common intention with Bandu and Raju inasmuch as he belonged to the  group of  these accused. The fact that Ghanshyam had no injuries  on his  persons or  that his  clothes  did  not contain blood  stains would  cause no dent to the eyewitness account given  by PWs.2  and 3.   So  also the fact that the allegation against  him that  he had hit one of the deceased with stone was not accepted is not material, inasmuch as the evidence also is that he had given kicks which would be born out by  the medical  findings inasmuch  as on  the  body  of Narendra apart from incised and penetrating lacerated wound, there were abrasions as well. 10.  We are, therefore, not persuaded to hold that Ghanshyam was not  present at  the scene  of occurrence and he had not shared the  common intention  with others  in committing the crime. 11.       So.  no  case  for  our  interference  with  there conviction of  the three  appellants has  been made out; and the sentence  being imprisonment  for life  for the crime of committing the  of two  brothers. the  appeals  have  to  be dismissed which we hereby do.