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PETITIONER: RAMKISHAN AND OTHERS

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       02/09/1997

BENCH: A. S. ANAND, K. RAMASWAMY

ACT:

HEADNOTE:

JUDGMENT: Present:                Hon’ble Dr. Justice A.S. Anand                Hon’ble Mr. Justice K. Venkataswami Shanti Swarup  Sharma, Adv.(NP),  for  the  appellants  K.S. Bhati, Adv. for the Respondents                          O R D E R The following order of the Court was delivered:      Five appellants  alongwith five  others were  tried for offences  under   sections  302,  148  IPC  and  some  minor offences. The  learned Sessions  Judge  acquitted  five  co- accused of  the appellants  but convicted and sentenced them for offences  under section  302/148 IPC  . They  filled  an appeal in the High Court which was dismissed by the Division Bench of  the High  Court on 6th May, 1986. By special leave the appellants  have called  in question the judgment of the High Court dated May 6, 1986.      In  Short,   the  prosecution  case  is  that  on  14th November, 1981  at about  10.00 p.m.  when  the  complainant party was  taking its bullock cart through a path way of the abadi to  village Galia  Kua, the cart suffered a sudden and violent jerk.  it was  noticed that a ditch had been freshly dug in  the path  way, though  the complainant party had not noticed the existence of any such ditch earlier on their way to the  forests in  the evening. As soon as the bullock cart suffered a  jerk, 10  to 12  persons came  out from house of Ranjita and Hira. They were armed with sticks and axes. They were armed  with sticks  and  axes.  They  assaulted  Bhura, Badri, Dhanna  and Ramphool.  Ramphool and  dhanna, however, escaped unhurt.  Bhura succumbed to the injuries. Badri also received  injuries.  Ramphool,  PW.3,  went  to  the  police station and  lodged the  First Information  Report  on  15th November, 1981  at about  6.45 a.m.   The  investigation was taken in hand and ten persons including five appellants were sent up  for trial.  According to  the prosecution  case the assailants had  mounted the  attack on the complainant party and inflicted  injuries on  Bhura   and Badri with a view to take revenge for a violent incident which took place in 1973 when Ranjita,  appellant, suffered fracture on his leg which led to  the filing of criminal prosecution against Bhura and Ramphool. As  many as  11 witnesses  were  examined  by  the

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prosecution at  the trial.  Dr. Bansal,  PW,  conducted  the postmortem examination  on the  dead body  of Bhura  on 15th November, 1981  at 2.30  p.m.  He  noticed  as  many  as  11 injuries on  the dead body. Out of these injuries eight were incised wounds  and others  were injuries  caused  by  blunt weapon. Out  of the incised wounds, there were some injuries on the  legs and  the left  thumb and  the  remaining  three injuries were  on the  head of  the deceased. Badri, PW, was also examined  and nine  injuries were  found on his person. There was  no fracture  of any  bone,  though  some  of  his injuries were  described as grievous injuries. At the trial, Dr. Bansal  deposed that  the injuries found on the deceased were sufficient  to cause  death in  the ordinary  course of nature. During cross examination however Dr. Bansal admitted that apart  from  injuries  which  were  caused  by  incised weapons there  were other  injuries also  on the body of the deceased and  that "other  injuries could also have resulted in his  death". The  prosecution also  have resulted  in his death". The  prosecution also relied upon recoveries of some weapons alleged  to have  been effected  on the basis of the statements made  by the  appellants and others under section 27 of  the evidence Act on 22nd November, 1981 in support of its case.      The trial  court found  that there  were  two  sets  of accused in the case, one set belonging to Kumhar caste while the other  belonging to  the Gujar Community. The appellants belong to  the Gujar  community. The  trial Court found that the evidence  of the  eye witnesses  who had  implicated not only the  appellants but  also five  others belonging to the Kumhar caste  could not  be believed  fully and consequently gave benefit  of doubt  to five  accused  belonging  to  the Kumhar caste and acquitted them.      The trial court after appreciating the evidence, in the case of the appellants, opined that there was no evidence on the record  to show  any pre-meditation  on the  part of the appellants. it  was also  concluded that the prosecution had failed to  establish as  to who  among the  10 accused,  had stuck the  fatal blow  resulting in  the death of Bhura. The learned Sessions  judge further  observed that "It remains a mystry who  the killers  of Bhura are". This observation was made in  the context  of as  to who  had  caused  the  fatal injuries, particularly  when according  to  the  prosecution case itself  none of  appellants was  armed with a lathi and the deceased  had suffered  a few  blunt weapon injuries. We find that  the prosecution has established the complicity of the appellants  with the crime but the question, however, is about the nature of offence committed by them.      Dealing with  the actual  assault, the learned Sessions judge has observed :      " As  Bhura and Ramphool had broken      the leg  of Ranjeeta  and they were      going to ’Foota Dungaar’ on bullock      cart to  fetch wood from there, the      Gujar accused must have intended to      attack them by obstructing the cart      and inflicting  injuries to them in      that situation." (Emphasis ours)      The  trial   court   went   on   to      observe:-      "As  sufficient   evidence  is  not      available regarding  the fact  that      all the  five accused  involved  in      causing the  death of  the deceased      Bhura and that all the five accused      had come  out from  one ’pole",  it

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    cannot be said that they had formed      an unlawful  assembly to  kill  the      deceased Bhura before the incident.      But after  the  start  of  "marpit"      they (accused)  inflicted  grievous      hurt(to) deceased Bhura."      So far  as the recoveries are concerned the trial court rightly did not believe the same and observed:-      "I have,  therefore, no  hesitation      to  conclude   that  all   the  ten      accused were  arrested on 15.11.81,      and  that  the  evidence  regarding      their arrest  on 21.11.1981,    and      disclosure      statements      and      recoveries of weapons on 22.11.1981      is all  fabricated and  false.  The      I.O. seems  to have  acted in  this      manner in  his zeal  to  strengthen      the prosecution case."      However, inspite  of recording  all the above findings, the trial  court still convicted the appellants for offences under Section 302 IPC and Section 148 IPC and the High Court also confirmed their conviction and sentence. In our opinion the approach  of both  the courts  below on  the question of nature of offence was faulty and erroneous.      On the  basis of  the findings  of  the  learned  trial court, as  noticed above,  it  is  quite  obvious  that  the intention of  the appellants  could only  have been to cause injuries to the deceased by obstructing his bullock cart and they did  not share  any common intention or object to cause the death  of the  deceased. Indeed by causing injuries with an axe  it could  be said  that the  appellants should  have realised that  the injuries  were likely  to cause his death but that  would only  bring the case of the appellants under Section 304 Part II IPC and not one under Section 302 IPC.      In  view  of  the  findings  recorded  by  the  learned Sessions judge and the material on the record, we are unable to ascribe to the finding that the appellants’ intention was to cause  death of  Bhura deceased.  The finding betrays the observation of the trial court as noticed above. The medical evidence also does not support the ultimate finding recorded by the trial court and upheld by the high Court. The offence in the  established facts  and circumstances  of the case in the case of the appellants would only fall under Section 304 Part II  IPC read with Section 149 IPC and not under Section 302  IPC.   Indeed  no   specific  charge   indicating   the applicability of  Section 149  IPC was  framed, but  all the ingriedients of  Section 149  IPC were  clearly indicated in the charge  framed against the appellants and as held by the Constitution Bench  of this Court in Willie (William) Slaney vs. State  of Madhya Pradesh : AIR 1956 SC 116, the omission to mention  Section 149  IPC specifically  in the  charge is only an irregularity and since no prejudice is shown to have been caused  to the  appellants by  that omission  it cannot affect their conviction.      In our  opinion this  appeal deserves to succeed to the extent that the offence committed by the appellant would not fall under  Section 302  IPC. We,  therefore, set  aside the conviction and  sentence of  the appellants  for the offence under Section  302 IPC  and  instead  convict  them  for  an offence under  Section 304 Part II IPC read with Section 149 IPC and  impose a  sentence of 5 years rigorous imprisonment upon them. The conviction and sentence of the appellants for the offence  under section  148 IPC is, however, maintained. The appellants  are on bail. Their bail bonds are cancelled.

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They shall  be taken  into custody to undergo remaining part of the sentence, if any.