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Non-Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  CRIMINAL APPEAL   NO.349 OF 2012

JAGDISH PRASAD @ J.P.& ORS. ....APPELLANT(S)  VERSUS

STATE OF RAJASTHAN ....RESPONDENT(S) WITH CRIMINAL APPEAL NO.350/2012 CRIMINAL APPEAL NOS.2278-2279/2014

O R D E R  These appeals have been preferred by the appellants against  the  common  impugned  judgment  and  order  dated 10.3.2011 passed by the High Court of Rajasthan in D.B. Criminal Appeal Nos.129/2000 and 84/2002, by which the conviction of the appellants for offences under section 147, 148, 450, 302/149, 326/149, 325/149, 324/149, 323, 427 and 364 of the Indian Penal Code (for short, the 'IPC') by the Trial Court was upheld by the High Court. The sentence of life imprisonment imposed by the Trial Court was also confirmed.   

Banwari Lal (PW5) lodged a complaint in the Police Station Kotwali, Seekar at 10.30 a.m. on 12.09.1998. He alleged  that  he  along  with  his  brothers  Bhebharam (deceased) and Om Prakash (PW6) were sitting in their shop. PW2 Sanwar Mal, PW9 Mohan Singh and Tara Chand also joined them. At 10 a.m., Om Prakash stepped out of the

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shop and went to Jankinath market gate to order for some tea.  At that time, he was assaulted by 10-15 persons near the Jankinath market.  

PW5 Banwari Lal, PW2 Sanwar Lal, PW21 Mohan Lal and Mangi Lal PW22, rushed out of the shop and saw 10-15 persons beating Om Prakash with lathi, sword, farsi and sariyas. Thereafter, the assailants entered the shop and launched  an  attack  on  Bhebharam  (deceased)  and  Om Prakash.  The  shop  was  ransacked  and  the  deceased Bhebharam  was  dragged  out  of  the  cabin.  It  was  also alleged that Shyama attempted to hit Om Prakash with a farsi  blow with  an intention  to kill  him. Om  Prakash avoided the attack and in the process his left hand's middle finger was chopped off.  Both Bhebharam and Om Prakash  were  abducted  in  a  Jeep  and  taken  away. Bhebharam (deceased) and Om Prakash were found in injured condition near Gaushala in Dataramgarh and were taken to Seekar Hospital. Bhebharam was referred to SMS Hospital, Jaipur, as his condition was serious.  Bhebharam died at 12.30 p.m. on 13.9.1998.  

FIR No.438/98 for offences under sections 147, 148, 323,  427,  395,  364,  307,  450  and  149  of  IPC  was registered  on  12.09.1998  and  after  the  death  of Bhebharam, offence under section 302 of IPC was added.  

A  charge-sheet  was  initially  submitted  against  12 persons while keeping the investigation pending. We are informed that there were six trials that were separately

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conducted  for  the  offences  mentioned  above.  The appellants before us were shown as accused in two trials and the accused in other four trials were acquitted by the Trial Court. No appeals were preferred by the State against the said acquittals.  The High Court upheld the conviction of the appellants who are before us for all the  aforestated  offences  except  for  the  offence  under section  307/149  of  the  IPC.  The  sentence  of  life imprisonment that was recorded by the trial court was confirmed by the High court.  

Mr. Basava Prabhu S. Patil, learned Senior Counsel appearing for the appellants, submits that the FIR is ante-dated and ante-time, the prosecution version about the  occurrence  of  the  crime  at  Jankinath  Market  is doubtful and that there is clear inconsistency between the injury report and the post-mortem report. He also submits that the eye-witnesses are not reliable and the statement of the deceased (Bhebharam) under section 161 Cr.P.C. recorded on 12.9.1998 could not have been treated as a dying declaration under section 32 of the Indian Evidence Act. He further contended that, in any event, the conviction under section 302 read with section 149 of IPC  is  not  justified.  According  to  him,  even  if  the prosecution version is to be accepted, the conviction can only be under section 326 read with section 149 of the IPC.  

A  perusal  of  the  evidence  on  record  and  the

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judgments  of  the  courts  below  would  reveal  that  the assailants Kesar Jat and Shyama Jat against whom specific overt acts were alleged, have been acquitted. It is also clear from the record that five persons were travelling in a jeep in which Bhebharam (deceased) and Om Prakash were abducted and taken to Dataramgarh. Four out of said five  persons  were  acquitted.  Admittedly,  there  is  no appeal  preferred  by  the  respondent-State  against  the acquittal  of  Kesar  Jat  and  Shyama  Jat  as  also  the acquittal of others who were travelling in the jeep.  

The accused were part of a large group of 25 persons and no specific role has been ascribed to them.  The other accused who were similarly situated to them have been acquitted and no appeals were preferred by the State against their acquittals.  Moreover, the main assailants were also acquitted.     

We  have  also  carefully  perused  the  injury certificate and the post-mortem report. Almost all the injuries  were  found  on  the  hands  and  legs  of  the deceased.  Though  the  accused  were  carrying  deadly weapons,  there  is  no  allegation  that  they  had  caused injuries  to  the  vital  parts  of  the  deceased  or  Om Prakash.  

There is no doubt that Bhebharam was attacked by the accused and he died due to the injuries caused by the accused. We do not see any reason to interfere with the findings  of  the  courts  below  that  the  accused  had

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attacked  the  deceased,  who  died  due  to  the  injuries sustained by him.  For the reasons mentioned above, we are of the view that the appellants are not liable for conviction  under  Section  302/149  IPC.  In  facts  and circumstances of this case, we are convinced that the conviction under Section 302/149 has to be modified to Section 326/149 IPC.    

We are informed that all the accused have already undergone  rigorous  imprisonment  for  periods  between  8 years and 7 months to 12 years and 8 months, except the appellants in Criminal Appeal Nos.2278-2279 of 2014, who have undergone rigorous imprisonment for 6 years and 5 years and 2 months respectively.   

Taking into account the long period of incarceration undergone  by  the  appellants,  we  partly  allow  these appeals, convert the conviction of the appellants from Section 302/149 to section 326/149 of the IPC and reduce their sentence to the period already undergone by them. The  appellants  are  in  jail.  Their  bail  bonds  stand cancelled. They may be released from custody forthwith, if not required in any other case.  

....................J [S. A. BOBDE]

....................J [L. NAGESWARA RAO]

NEW DELHI;  APRIL 26, 2017.