RAJU @ RAJ KUMAR versus STATE OF RAJASTHAN

KAPADIA, J. (1) Leave granted.

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(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

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in D.B. Criminal Appeal No.660/04 confirming the conviction under Section 148 IPC imposed by Addi. District and Sessions Judge, Jaipur, in Session Case No.49/200 l.

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(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

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Kishan Khandelwal (since deceased) had left their house, situated at A-10, D 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 I 0 to 12 persons were armed with knives, swords and

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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

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hand. On the basis of the said report investigation commenced. The case was registered for offences under Sections 147, 149 and 302 oflndian 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

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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 ofHanuman and

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Chhitar was demolished by Jaipur Development Authority. Hanuman and H Chhitar were under the impression that the bathroom was demolished on the complaint of Ram Kishan Khandelwal. to Hanif(one of the co-accused). had lodged an FIR with Police asked for police protection. Ram many criminal cases. These cases Hanuman, Chhitar and Hanif entered of Ram Kishan Khandelwal. appellant herein along with Aziz, committed the actual murder. were two groups of persons, the conspiracy but the actual murder herein), Mahendra Singh, Hamid

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(4) In this case, we are (appellant herein). He was charged 149 and 460 IPC.

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(5) Two issues arise for concerns the merits of the case on behalf of the appellant that three years on 8.3.2007 as he was which has been disputed by the convicted under Section 302

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( 6) On the merits of the disbelieve Uttam Prakash (pw.4), The incident took place on 1.9.89 on the bed. Uttam Prakash (pw.4) gone for dinner at his uncle's Jaipur. When the deceased was 10 to 12 persons entering the room They were armed with knives, saw the deceased being stabbed. was dinner time, that the deceased in conversation with his aunt. conclusion, placing reliance on injury on the chest of the deceased recovered vide Ex.P.32 had human in the post-mortem report, was Devi (pw.20) but she could not A 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

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Kishan Khandelwal (deceased) was stabbed to death by the appellant herein. B In the circumstances, we do not find any infirmity to the extent of the conviction of the appellant herein under Section 148 !PC.

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(7) The question is : whether this Court in special leave petition could convict the appellant under Section 302 !PC without any appeal from the

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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. I, (Fast Track) Jaipur City, Jaipur, for different offences. Appellant herein was charged under Section 148, 302, 1208 and 460 IPC. However, he has been

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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.

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(9) We also quote hereinbelow paras '65' and '66' of the said judgment which read as follow:

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"65. From the above decision I have reached the conclusion that out of all the accused, the accused No.(!) Abdul Aziz slo 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

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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 302/1208 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, 1208 and 460 of Indian Penal Code. 66. This case is a matter of murder, conspiracy to murder and cooperation in murder for which it would be justified to punish the accused with the minimum punishment and for rest of the crime the A accused were heard, for which they are punished with rigorous imprisonment as mentioned below:

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SENTENCE

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Therefore, the accused mentioned below on being found guilty B under Section as mentioned against each under Indian Penal Code are

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punished as below: SL Name of Section Punishment Penalty Illegible No. the (sic)

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Accused I. Abdul Aziz 460 Ten years 500/- 3 months 2 Raju@Raj 148 Three years 200/- I month

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Kumar

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3. Durga Das 302 Life 1000/- 6 months

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@Bhaya Imprisonment

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4. Feroz@ 460 Ten years 500/- 3 months Sherya 148 Three years 200/- I month 3021149 Life 1000/- 6 months

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Imprisonment

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5. Hanuman 302/1208 Life 1000/- 6 months

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Sahai Imprisonment

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6. Chhitar - do - - do - - do - - do -

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Mal

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7. Mohd. - do - - do - - do - - do - Haneef

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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 G 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." A (10) If one reads para '65' with para '66', we find that Abdul Aziz has been accused No. I 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. I 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 !PC 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. pffence under Section 148 IPC is disti11Et and separate from the offence under Section 302 !PC. 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 !PC is separate and distinct from the offence under Section 302 IPC. Moreover,

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according to the trial court, the cause of death is syncope. (I I) In the case of Satbir v. Surat Singh and Ors., AIR (1997) SC 1160, the accused was sentenced under Section 3 02/148 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, 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

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.. 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 !PC altered the conviction to Section 147

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petitioner was also charged under Section 455/149 !PC A 323/149 !PC. In that connection, it was held as under :-

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serious mistake committed by the Magistrate was his mention expressly in his judgmer.t as to whether he petitioner under Section 148, I. P. C., or not. Once a under that section was framed, the Magistrate must B

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whether he convicts the accused of that offence or acquits him of that offence. Though the petitioner was Section 148, the judgment of the Magistrate is silent

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that charge was proved or not. The learned Sessions

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committed an error by overlooking this mistake on the part C trying Magistrate and assuming that there was a conviction

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by the Magistrate and that he would be justified a conviction under Section 147, I. P.C. It is indeed cases of this type where sentences of imprisonment the two lower courts should have committed such presumably through negligence. D result therefore is that though the petitioner was Section 148, I. P. C., the trying Magistrate has not

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either of conviction or acquittal in respect of that

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Sessions Judge has convicted him under Section 147, omission of the trying Magistrate to convict the petitioner E 148, I. P. C., must in the circumstances be held to mean acquitted of that charge. It is immaterial whether this to oversight or any other reason. Once there is,

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of the petitioner of the charge under Section 148, Sessions Judge has no jurisdiction to alter the conviction F Section 14 7, I. P. C. The State should have moved the

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setting aside the order of acquittal in respect of the charge under Section 148. But this they did not do.

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acquittal of the petitioner in respect of the offence under C., will also affect his conviction under Section 455/ G 323/149, I. P. C. The conviction for these two offences

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assumption that the petitioner was a member of the assembly but his acquittal in respect of the charge under C., must necessarily lead to the inference that he was of such an assembly. Hence, his conviction under 323, I. P. C., read with Section 149, I. P. C., must be H There seems some force in the contention of the

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Counsel for the State of Orissa, that the initial mistake committed by the trying Magistrate through oversight,

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that the case might be remanded to the trying Magistrate recording a proper order either of conviction or of acquittal the charge against the petitioner under Section 148, am not satisfied that at this stage it will be proper to for the aforesaid purpose. The incident took place more ago, i.e., on 6-10-1955, and the petitioner has been sufficiently because the appeal was first heard by the Addi. Sessions the judgment was set aside by the High Court in Criminal and the appeal was reheard by the Sessions Judge of Cuttack.

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not be proper at this belated stage to revive the proceeding and subject the petitioner to further harassment conviction by the trying Magistrati! and also possibly of an

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Sessions Judge. The mistake was partly that of the Magistrate and partly that of the prosecuting officers. The

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have noticed the omission in the judgment of the Magistrate and then taken steps either by way of revision by means of an appeal against acquittal, to get the mistake For the aforesaid reasons, I would allow this revision petition, the conviction and sentence passed on the petitioner

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Sessions Judge, and acquit him. He should be set at forthwith."

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concluding we may state that one of the arguments advanced State was that no prejudice would be caused to the appellant convicted under Section 302 IPC. It was contended on if one goes through the entire judgment of the trial reasoning that the trial court had found the appellant Section 302 IPC and that the appellant has never made

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the said finding. It is submitted on behalf of the State special leave petition, before this Court, this particular ground by the appellant. We find no merit in this contention. the appellant under Section 302 !PC in the appeal preferred herein. If we were to do so it would amount to travesty justice. We cannot convict the accused under Section 302 without the State A 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.

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(14) For the above reasons, we find that the appellant herein was B 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 C 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.

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(15) Accordingly, the appeal is allowed. D.G. Appeal allowed.

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