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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1475 OF 2015 (Arising out of S.L.P. (Crl.) No. 8281 of 2007)

Raj Singh @ Raja … Appellant

Versus

State of Haryana through Secretary Ministry of Home Affairs, Chandigarh …Respondent

J U D G M E N T

Prafulla C. Pant, J.

This appeal is directed against judgment and order dated

21.8.2006 in Criminal Appeal No. 152-DB of 2004, passed by the

High Court  of  Punjab  and Haryana,  whereby  said  appeal  has

been dismissed affirming the conviction and sentence awarded

against accused/appellant Raj Singh @ Raja, by Sessions Judge,

Sonepat, in Sessions Case No. 121 of 1999/2003 under Sections

148, 302, 307, 323 read with Section 149 of Indian Penal Code

(IPC).

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2. We have heard learned counsel for the parties and perused

the papers on record.

3. Brief  facts  of  the  case  are  that  PW-4  Bhale  Ram

(complainant) owned shops near bus stop of village Jagsi.  In one

of the shops liquor used to be sold, and the other shops were

being used as tea stalls by the complainant’s son PW-10 Sanjay

and nephew Rajesh (deceased).  A vacant piece of land adjoining

the shops was also used by the complainant for  tethering the

cattle in respect of which a civil litigation was going on between

him and Daya Kishan Bairagi (one of the accused).

4. On 30.11.1998 at about 7.00 p.m. when PW-10 Sanjay and

Rajesh  (deceased)  were  in  the  shop,  complainant’s  daughters

PW-11 Kamlesh and Meena were unloading the paddy straw from

a cart at the vacant piece of land.  At that point of time accused

Kishan (son of Daya Kishan) came to the shop and asked Sanjay

to deliver some goods without payment of the price.  On this, a

quarrel  ensued  and  Kishan  threatened  Sanjay  of  dire

consequences.  He left the shop and soon thereafter came back

along  with  other  accused,  namely,  Pohla  @  Sat  Narain,  Daya

Kishan, Ajmer and the present appellant Raj Singh @ Raja. Pohla

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@ Sat Narain was armed with gun, Ajmer was armed with ‘Jaili’

and remaining three, namely, Daya Kishan, appellant Raj Singh

@ Raja and Kishan were armed with lathies.  Pohla opened fire at

Rajesh, who fell down.  In the meantime, complainant and his

daughters Kamlesh and Meena intervened to rescue Sanjay and

Rajesh.  Daya Kishan gave a blow with lathi on the person of the

complainant.  Ajmer and Kishan also gave blows with Jaili and

lathi  respectively  on the  complainant.   Appellant  Raj  Singh @

Raja said to have assaulted Kamlesh and Meena.  On hearing the

commotion, PW-12 Ram Kishan and one Hoshiara also reached

there.  They rescued the complainant from the accused, who left

the place along with their weapons.  All the injured were taken to

Community  Health  Centre,  Gohana,  wherefrom  they  were

referred  by  PW-21  Dr.  S.S.  Gupta  to  PGIMS,  Rohtak,  where

Rajesh was declared brought dead.  Other injured were admitted

in the hospital, and underwent medical treatment.  On next day

at  7.30  a.m.  police  recorded  statement  of  PW-4  Bhale  Ram

(injured/complainant)  and  on  its  basis  registered  First

Information  Report  No.  224  on  1.12.1998  relating  to  offences

punishable under Sections 148, 149, 302, 307 and 323 IPC

5. PW-17 Inspector Ram Prakash conducted the investigation.

He  went  to  the  spot,  prepared  site  plan  (Ex.  PS),  collected

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blood-stained  earth,  and three  used  cartridges.   He  also  took

dead body of Rajesh in his custody, and prepared inquest report

(Ex. PC).  The body was sent in sealed condition for post mortem

examination.   PW-3  Dr.  Vimal  Kumar  Sharma  conducted

autopsy.  Meanwhile PW-14 Dr. Rajesh Saini prepared medico

legal reports (Exs. PL, PM, PN, PO and PP) in respect of injured

Sanjay, Kamlesh, Kishni, Meena and Bhale Ram, and also that of

accused Daya Kishan (Ex. DA).

6. On  completion  of  investigation,  charge  sheet  was  filed

against accused Pohla @ Sat Narain, Kishan, Ajmer, Raj Singh @

Raja  and  Daya  Kishan  for  their  trial  in  respect  of  offences

punishable  under  Sections  148,  302,  307  and  323 read  with

Section 149 IPC.  Pohla @ Sat  Narain was further charged in

respect of offence punishable under Section 27 Arms Act, 1959.

The case was committed to the Court of Session.  On 25.5.1999,

after hearing the parties, the Sessions Judge framed charge in

respect of  above offences against all  the five accused to which

they pleaded not guilty and claimed to be tried.

7. It appears that during the trial when the accused were on

bail,  two  except  Daya  Kishan and Raj  Singh  @ Raja  (present

appellant) absconded.  After the stage of 313 of Code of Criminal

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Procedure (CrPC), appellant Raj Singh @ Raja also jumped the

bail,  and was declared proclaimed offender.   As  such,  trial  of

accused Daya Kishan was concluded vide judgment and order

dated 19.1.2004, passed by the Sessions Judge,  whereby said

accused was convicted and sentenced under Sections 148, 302,

307 and 323 read with Section 149 IPC.

8. Subsequently,  when Raj Singh @ Raja (present appellant)

was re-arrested, his case proceeded further from the stage of 313

CrPC.   In  defence  DW-1  Dr.  Gaurav  Bhardwaj,  DW-2  Bhan

Singh,  DW-3  Khazan  Singh  and  DW-4  Dr.  S.S.  Gupta  were

examined.  Two doctors proved the injuries found on person of

Daya Kishan, suffered by him at the time of the incident.  After

hearing  the  parties,  the  trial  court  (Sessions  Judge,  Sonepat),

vide judgment and order dated 10.10.2005 passed in Sessions

Case No. 121 of 1999/2003, convicted and sentenced accused

Raj Singh @ Raja also, under Sections 148, 307 and 323 read

with Section 149 IPC.

9. Convicts Daya Kishan and Raj Singh @ Raja filed Criminal

Appeal Nos. 277-DB of 2004 and 152-DB of 2006 respectively

before the High Court.  Both the appeals were heard together and

disposed of vide common judgment and order dated 21.8.2006

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whereby the two appeals were dismissed.  Convict Daya Kishan,

through  special  leave,  filed  Criminal  Appeal  No.  879  of  2007

before  this  Court,  which  was  disposed  of,  vide  judgment  and

order dated 22.4.2010.  Said appeal of Daya Kishan was partly

allowed by  this  Court  and his  conviction  and sentence  under

Section 302 read with Section 149 IPC was set aside.  However,

his conviction and sentence under Section 148 IPC and under

Sections  307  and  323  both  read  with  Section  149  IPC  was

affirmed.  Said decision of this Court in Daya Kishan v. State

of Haryana is reported in (2010) 5 SCC 81.

10. It is relevant to mention here that this appeal, which is also

filed  by  another  convict  Raj  Singh  @  Raja  in  the  year  2007

(through S.L.P. (Crl.) No. 8281 of 2007) remained undisposed of.

Both the appeals have arisen out of the common order passed by

the High Court.  These relate to the same incident.  Prosecution

evidence as against both the accused was recorded in Sessions

Case No. 121 of 1999/2003.  Both the accused are said to have

been armed with lathies.  Daya Kishan said to have assaulted

Bhale Ram (complainant) and the present appellant said to have

assaulted PW-11 Kamlesh.   Needless to say that  Pohla  @ Sat

Narain said to have fired the shot  at  Rajesh,  who died of  the

injuries.  This Court, in its judgment and order dated 22.4.2010

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in Criminal Appeal No. 879 of 2007 (filed by Daya Kishan) has

discussed  that  after  the  quarrel  between  PW-10  Sanjay  and

accused Kishan,  all  the accused assembled to teach lesson to

Sanjay.  It is discussed in the appeal decided by this Court that

there was no common object on the part of other members of the

unlawful assembly with accused Pohla @ Sat Narain to commit

murder of Rajesh (deceased).  The shot was fired at him by Pohla.

Role of the present appellant Raj Singh @ Raja and that of Daya

Kishan, both of whom were armed with lathies, is similar.  As

such, the case of the present appellant is identical to the case of

Daya Kishan, already decided by this Court.

11. For  the  reasons,  as  discussed  above,  this  appeal  also

deserves  to  be  partly  allowed,  for  the  reasons  mentioned  in

Criminal  Appeal  No.  879  of  2007  decided  by  this  Court  on

22.4.2010.

12. Accordingly,  in  the  light  of  decision  in  the  appeal  of

co-accused  Daya  Kishan,  conviction  and  sentence  of  the

appellant  recorded  by  the  trial  court  in  respect  of  offence

punishable under Section 302 read with Section 149 IPC is set

aside.   He is  acquitted  of  charge  of  offence  punishable  under

Section 302 read with Section 149 IPC.  However, his conviction

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and  sentence  in  respect  of  other  offences  punishable  under

Section 148 IPC, and under Sections 307 and 323 both read with

Section 149 IPC are affirmed.  The appeal stands disposed of.

………………….....…………J.          [Dipak Misra]

     .………………….……………J.                     [Prafulla C. Pant]

New Delhi; November 20, 2015.