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NON-REPORTABLE  IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1915 OF 2008

Raju @ Rajendra & Anr. ... Appellant(s) Versus

State of Rajasthan ... Respondent(s)

WITH

CRIMINAL APPEAL NO. 1897 OF 2008

J U D G M E N T

RANJAN GOGOI, J.

Being  directed  against  the  common  judgment  dated  

16th March, 2007 passed by the High Court of Rajasthan we  

had heard both the appeals analogously and the same are  

being disposed of by this common judgment.

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2. Criminal  Appeal  No.  1915 of  2008 has been filed by  

accused  Raju  @  Rajendra  and  accused  Pappu  @ Ranjeet  

Singh who have been convicted under Sections 302 and 307  

read with Section 34 of the Indian Penal Code and sentenced  

to undergo, inter alia, RI for life.  Criminal Appeal No. 1897 of  

2008 has been filed by the State of Rajasthan against the  

same  judgment  dated  16th March,  2007  by  which  the  

remaining  four  accused  have  been  acquitted  of  all  the  

charges brought  against  them including the charge under  

Section 302 read with Section 149 IPC.

3. The short case of the prosecution is that on 4th April,  

2000 at about 4.30 p.m. PW-13 Mahaveer lodged an FIR (Ex.  

P-23) in the Dei police station, District Boondi stating that at  

about 2 – 2.30 p.m. of the same day while he was sitting in  

the field of one Mukhtyar Singh (deceased) waiting for the  

thresher, the convicted as well as the acquitted accused (six  

in all) alongwith another person (who had absconded) came  

to  the  spot  armed  with  different  kinds  of  dangerous  

weapons.   In  the  FIR  it  was  stated  that  as  soon  as  the  

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accused persons reached the spot, while accused Pappu @  

Ranjeet Singh assaulted Mukhtyar Singh with an axe on his  

head,  accused  Raju  @  Rajendra  assaulted  the  aforesaid  

person  with  a  sword.  Acquitted  accused  Bachchan  Singh  

reportedly  gave  lathi  blows  to  Mukhtyar  Singh  whereas  

acquitted  accused  Balwant  Singh,  his  wife  Shanti  Bai  @  

Jaswant Kaur and daughter Gurjeet Kaur had pointed country  

made pistols at Mukhtyar Singh and had exhorted the other  

accused to kill/eliminate Mukhtyar Singh.  In the FIR it was  

further mentioned that the first informant (PW-13) tried to  

intervene but he was also assaulted by accused Pappu on his  

head with an axe and by the accused Raju with a sword on  

his right arm. Due to the assault committed by the accused  

on Mukhtyar Singh the aforesaid person lost consciousness  

and though he was taken to the hospital  he passed away  

shortly after the incident.  In the first information report, it  

was further mentioned that two other persons,  i.e.,  Bittoo  

(PW-19) and Jamnalal (PW-1) had witnessed the occurrence.

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4. On  the  basis  of  the  aforesaid  FIR  lodged  by  PW-13,  

police  registered  a  case  and  investigated  the  same.  On  

completion of the investigation chargesheet was submitted  

against  7  persons  in  all,  including  the  convicted  and  the  

acquitted accused.   Thereafter, the case was committed for  

trial to the Court of Sessions at Boondi where charges under  

different sections of the Indian Penal Code including Section  

302 read with Section 149 were framed.  As the accused  

persons  denied  the  charges  and  wanted  to  be  tried  the  

prosecution  examined  as  many  as  21  witnesses  and  also  

exhibited a large number of documents.  Thereafter at the  

conclusion of the trial while two of the accused  i.e. Raju @  

Rajendra and Pappu @ Ranjeet Singh were found guilty of  

the commission of the offence under Section 302, 307, 325,  

324 and 148 IPC the remaining accused (acquitted accused)  

were found guilty of the charge of commission of the same  

offences with the aid of Section 149 IPC.  For commission of  

the offence under Section 302 IPC each of the accused had  

been sentenced to undergo rigorous imprisonment for life.  

The  sentences  imposed  for  commission  of  the  lesser  

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offences, as noticed above, would not require any specific  

mention  as  the  same  were  to  run  concurrently  with  the  

sentence of imprisonment for life.

5. Aggrieved by the aforesaid conviction recorded by the  

learned Trial Court and the sentences imposed, all  the six  

accused had filed a common appeal before the High Court of  

Rajasthan challenging the order passed by the learned Trial  

Court.  The High Court by its judgment and order dated 16 th  

March,  2007  altered  the  conviction  of  the  two  convicted  

accused, i.e., Raju @ Rajendra and Pappu @ Ranjeet Singh  

to one under Sections 302 and 307 read with Section 34 of  

the  Indian  Penal  Code   while  acquitting  them  of  the  

remaining  charges.  The  remaining  four  accused  were  

acquitted  of  all  the  charges.  It  is  against  the  aforesaid  

judgment of the High Court that Criminal Appeal No. 1915 of  

2008 has been filed by the two convicted accused, whereas  

Criminal Appeal No. 1897 of 2008 has been filed by the State  

against the acquittal of the remaining four accused.   

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6. We have heard Ms.  Aishwarya Bhati,  learned Amicus  

Curiae for the appellants in Criminal Appeal No. 1915/2008,  

Mr.  J.P.  Dhanda,  learned  counsel  for  the  respondents  in  

Criminal Appeal No. 1897/2008  and Mr. Jasbir Singh Malik,  

Addl. Advocate General for the State of Rajasthan.   

7. Ms. Aishwarya Bhati, learned Amicus Curiae had taken  

us  through  the  evidence  on  record,  particularly,  the  

depositions of the eyewitnesses examined in the case, i.e.  

PW-1,  PW-13 and PW-19.  Learned Amicus Curiae had also  

placed before us the judgments passed by the learned Trial  

Court and the High Court as well.  On the other hand, Mr.  

Jasbir Singh Malik, learned Addl. Advocate General appearing  

for the respondent-State of Rajasthan in the appeal filed by  

the convicted accused had submitted that the evidence of all  

the  three  eyewitnesses  is  clear,  cogent  and  consistent  

insofar as the involvement of the said accused is concerned.  

Placing the evidence of PW-16 Dr. Gopal Lal Nagar, who had  

conducted the postmortem of  the deceased and had also  

attended to the injuries sustained by the injured eyewitness  

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PW-13,  learned  counsel  had  submitted  that  the  medical  

evidence adduced in the present case fully corroborates the  

narration of events unfolded by witnesses examined by the  

prosecution.    According to the learned State counsel,  no  

error or infirmity can be found in the judgment of the High  

Court  so  as  to  warrant  a  reversal  of  the  finding  of  guilt  

recorded against the two convicted accused.   

8. Insofar  as  the  connected  appeal  (Crl.  Appeal  No.  

1897/2008)  against  the  acquittal  of  the  four  accused  is  

concerned, Mr. Jasbir Singh Malik, learned counsel appearing  

for the appellant-State had vehemently contended that the  

evidence and materials brought on record by the prosecution  

clearly go to show that all the six accused had formed an  

unlawful assembly the common object of which was to cause  

the  murder  of  the  deceased.   According  to  the  learned  

counsel,  such  a  conclusion  reasonably  follows  from  the  

manner in which the accused persons armed with dangerous  

weapons had gone to the field of Mukhtyar Singh on the day  

of  the  occurrence.   In  such  a  situation,  according  to  the  

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learned counsel, apart from the individual overt acts which  

are attributable to accused Raju @ Rajendra and Pappu @  

Ranjeet  Singh,  the  other  accused  would  be  liable  under  

Section 149 IPC for the acts committed in furtherance of the  

common object of the unlawful assembly, which undoubtedly  

was to commit the murder of Mukhtyar Singh. It is, therefore,  

submitted that the acquittal of the aforesaid four accused by  

the High Court is wholly untenable and needs to be reversed.  

9. Opposing  the  aforesaid  contentions  advanced  by  the  

learned counsel for the appellant State of Rajasthan, Mr. J.P.  

Dhanda,  learned  counsel  for  the  acquitted  accused  had  

submitted that even if it is to be assumed that an unlawful  

assembly had been formed by the six accused persons, it  

cannot be said that the common object of the said assembly  

was  to  cause  murder  of  the  deceased  Mukhtyar  Singh,  

inasmuch  as,  though,  according  to  the  prosecution  story,  

three  of  the  acquitted  accused  were  armed  with  country  

made pistols and had, in fact, kept the same pointed at the  

deceased, yet, none of the firearms were used or fired. In  

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such circumstances, according to the learned counsel, even  

if the prosecution story as a whole is to be accepted the four  

accused in question cannot be made liable for the offence of  

murder with the aid of Section 149.   

10. We  have  considered  the  submissions  advanced  on  

behalf of the rival parties.  We have also given our indepth  

consideration  to  the  evidence  on  record,  particularly  the  

depositions  of  the  three  eyewitnesses,  and  the  medical  

evidence adduced by  PW-16.   Insofar  as  accused Raju  @  

Rajendra and Pappu @ Ranjeet Singh is concerned, we have  

not  been  able  to  find  any  inconsistency,  much  less  any  

material contradiction, in the evidence of PWs 1, 13 and 19.  

All  the  aforesaid  three  eyewitnesses  have  given  a  vivid  

description of the events leading to the death of Mukhtyar  

Singh clearly demonstrating the role of the accused Raju @  

Rajendra and Pappu @ Ranjeet Singh in causing the injuries  

sustained by the deceased on the head. According to PW-16,  

Dr.  Gopal  Lal  Nagar,  the  internal  injuries  suffered  by  the  

deceased  as  a  result  of  the  assault  on  the  head  was  

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ultimately responsible for the death of Mukhtyar Singh.  The  

description of the events by the eyewitnesses would go to  

show that the attack on the head of the deceased by the two  

convicted  accused  were  in  quick  succession.  The  manner  

and circumstances in  which  the  injuries  were  inflicted,  as  

already discussed, is capable of sustaining an inference that  

both  the  accused Raju  @ Rajendra and Pappu @ Ranjeet  

Singh had shared the common intention to cause the death  

of  Mukhtyar  Singh  thereby  rendering  them  liable  under  

Section 302 read with Section 34 IPC, as held by the High  

Court. A similar conclusion with regard to the liability of the  

two  accused  under  Section  307  IPC  for  the  assault  and  

injuries caused to PW-13 reasonably follows from a reading  

of the evidence of the eye witnesses (PWs 1, 13 and 19) and  

the medical evidence on record (PW 16). We, therefore, do  

not  find  any  basis  whatsoever  to  disagree  with  the  view  

taken  by  the  High  Court  insofar  as  the  two  convicted  

accused are concerned.  Consequently, Criminal Appeal No.  

1915 of 2008 is dismissed and the conviction as well as the  

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sentence recorded against the accused Raju @ Rajendra and  

Pappu @ Ranjeet Singh by the High Court is affirmed.

11. Insofar as the acquittal of the four accused, which is the  

subject matter of challenge in Criminal Appeal No. 1897 of  

2008,  is  concerned,  the  first  question  that  has  to  be  

determined is whether the aforesaid four accused alongwith  

the two convicted accused had formed an unlawful assembly  

within the meaning of Section 141 of the Indian Penal Code  

so as to render them vicariously liable for the offence(s), if  

any, committed by the members of the unlawful assembly  

either in furtherance of the common object of the assembly  

or if the offence committed was or  could have been known  

to be likely to be committed in pursuance of such common  

object of the unlawful assembly.

12. From  the  evidence  of  PW-2  Avtar  Singh  (son  of  

deceased) as well as PW-4 Ram Niwas (declared hostile) it  

transpires that the deceased and the party of the accused  

had a dispute over land and, in fact, some of the accused  

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had made attempts to encroach upon land belonging to the  

deceased.   All the three eyewitnesses, namely, PW-1, PW-13  

and  PW-19,  as  already  noticed,  had  unequivocally  and  

categorically  stated in  Court  that  the six  accused persons  

had come together to the field of deceased Mukhtyar Singh  

armed with dangerous weapons including fire arms.  If this is  

the manner in which the accused persons had come to the  

spot it cannot be said that the accused had not formed an  

unlawful assembly within the meaning of the said expression  

as appearing in Section 141 of the Indian Penal Code.  While  

membership  of  an unlawful  assembly  itself   is  an offence  

under  Section  143 IPC,   use  of  force  by  members  of  the  

unlawful assembly gives rise to the offence of rioting which  

is punishable either under Section 147 or  Section 148 IPC.  

Membership of the 4 accused in the unlawful assembly and  

use of force with dangerous weapons is  borne out by the  

evidence on record. The said facts would make the acquitted  

accused  liable  for  the  offence  under  Section  148  of  the  

Indian Penal Code.  However, their liability under any other  

provision of the Indian Penal  Code would depend on what  

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can reasonably be understood to be the common object of  

the assembly in the present case.

13. The availability of fire arms in the hands of three of the  

acquitted accused,  namely, Balwant Singh,  his wife Shanti  

Bai @ Jaswant Kaur and daughter Gurjeet Kaur but absence  

of any fire therefrom or use thereof is a clear pointer to the  

fact that the common object of the unlawful assembly was  

definitely not to cause the murder of the deceased Mukhtyar  

Singh.  Had the same been the object the fire arms available  

with the accused would have been surely used.   

However, from the depositions of PW-13 and PW-19 as  

well as from the evidence of PW-16 it clearly transpires that  

PW-13  had  suffered  several  injuries  due  to  the  assault  

committed  on  him  by  the  members  of  the  unlawful  

assembly.  Having regard to the injuries suffered by PW-13,  

as evident from the evidence of PW-16, and our finding that  

the accused persons had formed an unlawful assembly, we  

are of the view that the four acquitted accused should also  

be held liable under Section 324 read with Section 149 IPC.

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14. Pursuant to the directions issued by this Court at the  

conclusion  of  the  hearing  of  the  appeals,  learned  Addl.  

Advocate General  of the State of Rajasthan has filed before  

this  Court  details  of  the  custody  undergone  by  the  four  

acquitted  accused  till  date.   From  the  aforesaid  material  

placed  before  this  Court  it  appears  that  while  acquitted  

accused Gurjeet Kaur had undergone a total of 5 months 8  

days  of  RI  accused  Shanti  Bai  @  Jaswant  Kaur  had  

undergone a similar period of custody of 5 months 8 days.  

On the other hand Balwant Singh had undergone 7 months  

29  days  of  rigorous  imprisonment  whereas  accused  

Bachchan Singh had undergone custody of 1 year 4 months  

and 21 days.    

15. Having regard to the totality of the facts of the case, we  

are, therefore, of the view that the aforesaid four  accused  

should be held liable for the offences under Sections 148 and  

324 IPC read with Section 149 IPC.  Insofar as the sentence is  

concerned,  we are  of  the  view that  having  regard  to  the  

period of custody already undergone by the aforesaid four  

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accused the ends of justice would not require them to suffer  

any further period of custody and sentence of imprisonment  

already suffered by the said  accused would be adequate.  

Consequently,  insofar  as  the  Criminal  Appeal  No.  1897 of  

2008 is concerned, we partly allow the same and modify the  

order  of  the  High  Court  in  terms  of  what  has  been  held  

above.

16. Both the appeals shall stand disposed of accordingly.

...…………………………J. [P. SATHASIVAM]

.........……………………J. [RANJAN GOGOI]

New Delhi, January 11, 2013.

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