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 JUDGMENT '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
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, JUDGMENT 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
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 JUDGMENT 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
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 JUDGMENT 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
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. JUDGMENT The appellants are in jail. Their bail bonds stand
cancelled. They may be released from custody forthwith,
if not required in any other case.
[S. A. BOBDE]