Full Judgment Text
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CASE NO.:
Appeal (crl.) 664 of 2007
PETITIONER:
Raju @ Raj Kumar
RESPONDENT:
State of Rajasthan
DATE OF JUDGMENT: 03/05/2007
BENCH:
S. H. Kapadia & B. Sudershan Reddy
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 664 OF 2007
(Arising out of S.L.P. (Crl) No.4446 of 2006)
KAPADIA, J.
(1) Leave granted.
(2) This criminal appeal by grant of special leave is
directed against impugned judgment dated 13.1.06
delivered by Rajasthan High Court at Jaipur in D.B.
Criminal Appeal No.660/04 confirming the conviction
under Section 148 IPC imposed by Addl. District and
Sessions Judge, Jaipur, in Session Case No.49/2001.
(3) On 1.9.1989 at 9.20 pm Uttam Prakash (pw.4)
lodged an FIR at Police Station Ashok Nagar, Jaipur, in
which he claimed that he and his father Ram Kishan
Khandelwal (since deceased) had left their house,
situated at A-10, Sikar House Area, for his uncle’s house
at C-10, Madan Kunj, Prithvi Raj Road, Jaipur, when at 9
pm while the deceased was sitting on the bed talking
with PW.4’s aunt and uncle, 10 to 12 persons entered the
room and surrounded the deceased. These 10 to 12
persons were armed with knives, swords and pick-axes.
PW.4 was threatened and told not to shout. PW.4 in his
FIR stated that in his presence the accused (appellant
herein) stabbed his father, Ram Kishan Khandelwal.
According to the FIR, when PW.4’s uncle raised an alarm
the appellant herein along with others fled. Ram Kishan
Khandelwal died. According to the FIR, there was enmity
between Ram Kishan Khandelwal on one hand and
Hanuman, Hanif, Chhitar and Ramesh Shanker on the
other hand. On the basis of the said report investigation
commenced. The case was registered for offences under
Sections 147, 149 and 302 of Indian Penal Code (for
short, ’IPC’). On the basis of the information given by the
appellant herein, weapons of offence and blood soaked
clothes were recovered. PW. 25, a Judicial Magistrate,
conducted identification parade of the appellant herein
and others. The police thereafter submitted their charge-
sheet, inter alia, against the appellant herein. 31
witnesses were examined. 74 documents were produced
by the prosecution. During the course of the trial it was
revealed that Ram Kishan Khandelwal and his family
used to live at Sikar House Area in Jaipur. Hanuman
and Chhitar were his neighbours. They were on inimical
terms. There was property dispute. The bathroom of
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Hanuman and Chhitar was demolished by Jaipur
Development Authority. Hanuman and Chhitar were
under the impression that the bathroom was demolished
on the complaint of Ram Kishan Khandelwal. Hanuman
and Chhitar sold their house to Hanif (one of the co-
accused). Prior to his death, Ram Kishan Khandelwal
had lodged an FIR with Police Station Shastri Nagar,
Jaipur, in which he had asked for police protection. Ram
Kishan Khandelwal was also an accused in many
criminal cases. These cases were pending. According to
the prosecution, Hanuman, Chhitar and Hanif entered
into a criminal conspiracy for the murder of Ram Kishan
Khandelwal. According to the prosecution, however, the
appellant herein along with Aziz, Iqbal, Mahendra Singh,
Hamid and Firoz committed the actual murder.
Therefore, according to the prosecution there were two
groups of persons, the first set/group of persons entered
a criminal conspiracy but the actual murder was done by
Iqbal, Aziz, Raju Naik (appellant herein), Mahendra
Singh, Hamid and Firoz.
(4) In this case, we are concerned with the conviction of
Raju Naik (appellant herein). He was charged for
offences under Sections 302, 120B, 148, 149 and 460
IPC.
(5) Two issues arise for determination in this criminal
appeal. The first concerns the merits of the case and the
second concerns an argument advanced on behalf of the
appellant that the appellant has completed the sentence
of three years on 8.3.2007 as he was convicted for offence
under Section 148 IPC which has been disputed by the
State on the ground that the appellant stood convicted
under Section 302 IPC and sentenced to life
imprisonment.
(6) On the merits of the case, we find that there is no
reason to disbelieve Uttam Prakash (pw.4), the son of
Ram Kishan Khandelwal (deceased). The incident took
place on 1.9.89 around 9 pm when the deceased was
sitting on the bed. Uttam Prakash (pw.4) and his father,
Ram Kishan Khandelwal, had gone for dinner at his
uncle’s place at C-10, Madan Kunj, Prithvi Raj Road,
Jaipur. When the deceased was sitting on the bed Uttam
Prakash (pw.4) saw 10 to 12 persons entering the room
and surrendering Ram Kishan Khandelwal. They were
armed with knives, swords and pick-axes. Uttam
Prakash (pw.4) saw the deceased being stabbed. Uttam
Prakash (pw.4) has deposed that it was dinner time, that
the deceased was sitting on the bed whereas he was in
conversation with his aunt. Both the courts below have
come to the conclusion, placing reliance on the post-
mortem report, that there was an injury on the chest of
the deceased and that the knife and the clothes recovered
vide Ex.P.32 had human blood. The cause of the death,
as given in the post-mortem report, was syncope. There
was one more witness Rattan Devi (pw.20) but she could
not identify the appellant in the identification parade.
However, both the courts below have come to the
conclusion, on the basis of the evidence of pw.4 that the
appellant herein (Raju @ Raju Kumar) was a member of
the unlawful assembly; that he carried the knife; that he
had entered the room where the deceased was sitting on
the bed and that Ram Kishan Khandelwal (deceased) was
stabbed to death by the appellant herein. In the
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circumstances, we do not find any infirmity to the extent
of the conviction of the appellant herein under Section
148 IPC.
(7) The question is : whether this Court in special leave
petition could convict the appellant under Section 302
IPC without any appeal from the State.
(8) Now coming to the second issue, we find that in this
case seven out of ten accused were convicted by
Additional District and Sessions Judge, No.1, (Fast
Track) Jaipur City, Jaipur, for different offences.
Appellant herein was charged under Section 148, 302,
120B and 460 IPC. However, he has been convicted
under Section 148 IPC. According to the trial court the
cause of death is syncope. According to Butterworth’s
Medical Dictionary, ’Syncope’ is a temporary loss of
consciousness caused by a fall in blood pressure.
(9) We also quote hereinbelow paras ’65’ and ’66’ of the
said judgment which read as follow:
"65. From the above decision I have reached
the conclusion that out of all the accused, the
accused No.(1) Abdul Aziz s/o Salamuddin,
accused No.2 Raju @ Raj Kumar s/o Mali
Ram, accused No.3, Durga Das @ Bhaya s/o
Bhanwar Lal have committed punishable crime
u/s 460, 148 and 302 of Indian Penal Code for
which their crime is hereby proved and the
accused No.4, Feroz @ Shreya s/o babu Khan
has committed punishable crime under the
Indian Penal Code Section 148, 302/149, 460
for which their crime is hereby proved and the
accused No.5 Hanuman Sahai s/o Mahadev
Prasad, accused No.6 Chhitar Mal s/o
Mahadev Prasad, accused No.7 Mohd. Haneef
s/o Abdul Hakim have committed punishable
crime u/s 302/120B of the Indian Penal Code
for which their crime is hereby proved and the
accused No.8 Sayeed s/o Abdul Rasheed is
acquitted from the allegations of punishable
crime under Section 302 read with Section
149, 148, 120B and 460 of Indian Penal Code.
66. This case is a matter of murder,
conspiracy to murder and co-operation in
murder for which it would be justified to
punish the accused with the minimum
punishment and for rest of the crime the
accused were heard, for which they are
punished with rigorous imprisonment as
mentioned below:
SENTENCE
Therefore, the accused mentioned below
on being found guilty under Section as
mentioned against each under Indian Penal
Code are punished as below:
Sl.
NO.
Name of
the
Accused
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Section
Punishment
Penalty
Illegible
(sic)
1.
Abdul Aziz
460
Ten years
500/-
3months
2.
Raju @ Raj
Kumar
148
Three years
200/-
1 month
3.
Durga Das
@ Bhaya
302
Life
Imprisonment
1000/-
6months
4.
Feroz @
Sherya
460
Ten years
500/-
3months
148
Three years
200/-
1 month
302/149
Life
Imprisonment
1000/-
6months
5.
Hanuman
Sahai
302/120B
Life
Imprisonment
1000/-
6months
6.
Chhitar
Mal
- do -
- do -
- do -
- do -
7.
Mohd.
Haneef
- do -
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- do -
- do -
- do -
The accused in this case are on bail,
hence for getting the punishment they are
being taken in the judicial custody. The
punishment warrant of the accused may be
prepared as per above and sent to the Central
Jail, Jaipur. Punishment of all the crime will
be simultaneous. In this case, the seized item
of proof will be destroyed after expiry of six
months of the appeal period. The file after
recording of the decision may be admitted in
the office. The accused with the proven crime
may be provided with a copy of the decision
without any cost."
(10) If one reads para ’65’ with para ’66’, we find that
Abdul Aziz has been accused No.1 and he is convicted
under Section 460 IPC. This is clear from para ’65’. It is
in consonance with the chart in para ’66’. Similarly, the
appellant (Raju @ Raj Kumar) was accused No.2 and he
has been convicted under Section 148 IPC. This is clear
from para ’65’. To this extent, para ’65’ is in consonance
with para ’66’ (chart annexed thereto). Durga Das was
accused No.3 and he has been convicted under Section
302 IPC both under paras ’65’ and ’66’. It appears from
the reading of para ’65’ that accused No.1 was convicted
under Section 460 IPC, accused No.2 was convicted
under Section 148 IPC and accused No.3 was convicted
under Section 302 IPC respectively. The word
"respectively" is omitted. Be that as it may, the State did
not go in appeal against the order of the trial court
convicting Raju @ Raj Kumar (appellant herein) for
convicting him under Section 302 IPC in addition to his
conviction by the trial court under Section 148. Even the
High Court, by the impugned judgment, has merely
dismissed the appeal filed by the appellant herein
upholding the conviction of Raju @ Raj Kumar under
Section 148 IPC. It is argued before us, on behalf of the
State, that we should convict the appellant herein under
Section 302 IPC, particularly, when the reasoning given
in the concurrent findings indicate that the appellant
herein had stabbed the deceased in the chest with the
knife. In our view, such a request cannot be granted.
Offence under Section 148 IPC is distinct and separate
from the offence under Section 302 IPC. The State
should have filed an appeal seeking conviction of the
appellant under Section 302 IPC apart from his
conviction under Section 148 IPC. This has not been
done in the present case. The offence of rioting with
deadly weapon under Section 148 IPC is separate and
distinct from the offence under Section 302 IPC.
Moreover, according to the trial court, the cause of death
is syncope.
(11) In the case of Satbir v. Surat Singh and others \026
AIR 1997 SC 1160, the accused was sentenced under
Section 302/148 IPC and, therefore, this Court took the
view that separate sentence under Section 148 was not
necessary.
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(12) In the case of Nanda Kishore Mohanty v. The
State of Orissa \026 AIR 1961 Orissa 29, it has been held
that once a charge under Section 148 IPC was framed the
Magistrate must say whether the person charged is
convicted or acquitted. In that case, though the
petitioner was charged under Section 148 IPC, the
judgment of the Magistrate was silent as to whether
petitioner was guilty or not. The Additional Sessions
Judge assumed that the petitioner stood convicted under
Section 148 IPC altered the conviction to Section 147
IPC. In that case, the petitioner was also charged under
Section 455/149 IPC and under Section 323/149 IPC. In
that connection, it was held as under :-
"(6) Another serious mistake committed
by the Magistrate was his omission to mention
expressly in his judgment as to whether he
convicted the petitioner under Section 148, I.
P. C., or not. Once a specific charge under that
section was framed, the Magistrate must
expressly say whether he convicts the accused
of that offence or whether he acquits him of
that offence. Though the petitioner was
charged under Section 148, the judgment of
the Magistrate is silent as to whether that
charge was proved or not. The learned
Sessions Judge also committed an error by
overlooking this mistake on the part of the
trying Magistrate and assuming that there was
a conviction under that section by the
Magistrate and that he would be justified in
altering it to a conviction under Section 147, I.
P.C. It is indeed unfortunate that in cases of
this type where sentences of imprisonment
have been passed the two lower courts should
have committed such obvious mistake,
presumably through negligence.
(7) The net result therefore is that though
the petitioner was charged under Section 148,
I. P. C., the trying Magistrate has not passed
any order, either of conviction or acquittal in
respect of that charge and the Sessions Judge
has convicted him under Section 147, I. P. C.
The omission of the trying Magistrate to
convict the petitioner under Section 148, I. P.
C., must in the circumstances be held to mean
that he was acquitted of that charge. It is
immaterial whether this omission was due to
oversight or any other reason. Once there is,
thus, an acquittal of the petitioner of the
charge under Section 148, I. P. C., the
Sessions Judge has no jurisdiction to alter the
conviction to one under Section 147, I. P. C.
The State should have moved the High Court
for setting aside the order of acquittal in
respect of the charge under Section 148. But
this they did not do.
(8) The acquittal of the petitioner in
respect of the offence under Section 148, I. P.
C., will also affect his conviction under Section
455/149, I. P. C., and 323/149, I. P. C. The
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conviction for these two offences is based on
the assumption that the petitioner was a
member of the unlawful assembly but his
acquittal in respect of the charge under
Section 148, I. P. C., must necessarily lead to
the inference that he was not a member of
such an assembly. Hence, his conviction under
Sections 455 and 323, I. P. C., read with
Section 149, I. P. C., must be set aside.
(9) There seems some force in the
contention of the learned Standing Counsel for
the State of Orissa, that the initial mistake was
committed by the trying Magistrate through
oversight, and he suggested that the case
might be remanded to the trying Magistrate for
recording a proper order either of conviction or
of acquittal in respect of the charge against the
petitioner under Section 148, I. P. C.
But I am not satisfied that at this stage it
will be proper to remand the case for the
aforesaid purpose. The incident took place
more than four years ago, i.e., on 6-10-1955,
and the petitioner has been sufficiently
harassed because the appeal was first heard
by the Addl. Sessions Judge but the judgment
was set aside by the High Court in Criminal
Revision and the appeal was reheard by the
Sessions Judge of Cuttack.
It will not be proper at this belated stage
to revive the whole proceeding and subject the
petitioner to further harassment of a
conviction by the trying Magistrate and also
possibly of an appeal before the Sessions
Judge. The mistake was partly that of the
trying Magistrate and partly that of the
prosecuting officers. The latter should have
noticed the omission in the judgment of the
trying Magistrate and then taken steps either
by way of revision to this Court or by means of
an appeal against acquittal, to get the mistake
rectified.
(10) For the aforesaid reasons, I would
allow this revision petition, set aside the
conviction and sentence passed on the
petitioner by the learned Sessions Judge, and
acquit him. He should be set at liberty
forthwith."
(13) Before concluding we may state that one of the
arguments advanced on behalf of the State was that no
prejudice would be caused to the appellant if he was to
be convicted under Section 302 IPC. It was contended on
behalf of the State that if one goes through the entire
judgment of the trial court it is clear from the reasoning
that the trial court had found the appellant guilty of
murder under Section 302 IPC and that the appellant
has never made any grievance against the said finding. It
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is submitted on behalf of the State that even in the
special leave petition, before this Court, this particular
ground has not been taken by the appellant. We find no
merit in this contention. We cannot convict the appellant
under Section 302 IPC in the appeal preferred by the
appellant herein. If we were to do so it would amount to
travesty of justice. We cannot convict the accused under
Section 302 without the State filing an appeal in that
regard. In the present case, the State did not move the
High Court in appeal against the conviction under
Section 148 and nor did the State seek enhancement of
punishment before the High Court in appeal.
(14) For the above reasons, we find that the appellant
herein was convicted under Section 148 IPC; that, he was
not convicted under Section 302 IPC; that he was
sentenced for three years with fine in addition, one
month sentence in default of fine; and that Raju @ Raj
Kumar (appellant herein) has served sentence for three
years commencing from 9.3.2004 ending on 8.3.2007.
We are not sure as to whether he has paid the fine of
Rs.200/-, if not, he shall pay the fine forthwith. On
payment of fine he should be set at liberty forthwith. If
he fails to pay Rs.200/- as fine then he will have to serve
the sentence of one month in default.
(15) Accordingly, the appeal is allowed.