Crl.A. 1211 of 2004 1

ITEM NO.105               COURT NO.7             SECTION II

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS

                CRIMINAL APPEAL NO(s). 1211 OF 2004

STATE OF RAJASTHAN                                Appellant (s)

                VERSUS

SANJAY & ORS.                                     Respondent(s)

(With appln(s) for exemption from filing O.T. and office report)

Date: 02/12/2010  This Appeal was called on for hearing today.

CORAM :         HON'BLE MR. JUSTICE HARJIT SINGH BEDI         HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD

For Appellant(s)  Dr. Manish Singhvi, AAG.  Mr. D.K. Devesh, Adv.  Mr. Sahil S. Chauhan, Adv.   

                   Mr. Milind Kumar, Adv.

For Respondent(s)   Mr. Manoj Prasad, ADv.   Mr. Sadashiv Gupta, Adv.   Mr. Rohit Singh, Adv.   Mr. Satendra Singh Kashyap, Adv.

                    Mr. Ajay Srivastava, Adv.

          UPON hearing counsel the Court made the following                                O R D E R  

The  appeal  is  dismissed  in  terms  of  the  

signed order.

(KALYANI GUPTA) SR. P.A.

(VINOD KULVI) COURT MASTER

[SIGNED ORDER IS PLACED ON THE FILE.]

Crl.A. 1211 of 2004 2

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1211 OF 2004

STATE OF RAJASTHAN ..... APPELLANT

VERSUS

SANJAY & ORS. ..... RESPONDENTS

O R D E R

1. Seven persons in all were sent up for trial for  

having committed the murder of Ashok Kumar on the 13th of  

June, 1995. Of the seven persons aforesaid Surendra Kumar  

and Shivdayal absconded.  The trial court by its judgment  

dated 7th August, 1998 in the present matter convicted all  

the  accused  for  the  offence  punishable  under  Section  

302/149 of the Indian Penal Code and sentenced them to  

life imprisonment.  An appeal was thereafter taken to the  

High Court  and during the pendency of the appeal Rajpal  

accused died and the appeal was, accordingly, dismissed  

qua  him  as  having  abated.   The  High  Court  vide  its  

judgment  dated  29th May,  2003,  however,  acquitted  

respondent Nos. 2 to 4 namely, Satish Kumar, Ashok Kumar  

and Lakhan Singh on the ground that the medical evidence  

did not support the ocular evidence insofar as they were  

concerned and as far as respondent No. 1 was concerned

Crl.A. 1211 of 2004 3

his conviction was  altered from one under Section 302 to  

Section 304 (II) of the Indian Penal Code and as he had  

been in jail since June, 1995, the sentence was reduced  

to  that  already  undergone.   It  is  under  these  

circumstances  that  this  appeal  has  been  filed  by  the  

State of Rajasthan impugning the acquittal of respondent  

Nos. 2 to 4  in toto and also challenging the acquittal  

of  respondent  No.  1  under  Section  302  and  the  

substitution of Section 304(II) of the Indian Penal Code  

instead.   

2. During  the  course  of  hearing  today,  Dr.  Manish  

Singhvi,  the  learned  Additional  Advocate  General  

representing  the  State  of  Rajasthan,  the  appellant  

herein, has very forcefully argued that the case of the  

respondent  No.  1  fell  squarely  under  the  purview  of  

Section 302 IPC and his conviction was, therefore, to be  

made under that provision.  He has pointed out that in  

any case the conviction of the respondent No.1 for the  

offence  under  Section  304(II)  IPC  was  completely  

erroneous as there was clear intention on the part of  

respondent to cause death. The learned counsel for the  

respondents  has  controverted  this  submission  and  has  

supported the judgment of the High Court.   

3. We see that the High Court has dealt with this  

matter on the facts of the case.  The Court has held that

Crl.A. 1211 of 2004 4

the  participation  of  the  three  acquitted  respondents  

could not be established beyond reasonable doubt as the  

statements  of  the  eye  witnesses,  P.Ws2  and  3  were  

discrepant  on  material  particulars  and  the  medical  

evidence also did not support the prosecution story.  We  

also see that the High Court has dealt with the case of  

respondent No. 1 in a clear cut manner as the injury  

attributed to him was not on a vital part of the body and  

that  it  could  not  be  ascertained  as  to  which  of  the  

accused was the assailant.  In the light of the arguments  

made by Dr. Manish Singhvi some of the broad observations  

made by the High Court may not be entirely correct but we  

feel  that  keeping  in  view  the  totality  of  the  

circumstances, no interference is called for.

4. The appeal is, accordingly, dismissed.

        .......................J         [HARJIT SINGH BEDI]

      ........................J        [CHANDRAMAULI KR. PRASAD]

NEW DELHI DECEMBER 02, 2010.