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1992 Supreme(SC) 236
SUPREME COURT OF INDIA
S. MOHAN AND G. N. RAY, JJ.
Rama Meru and another, Appellants
Versus
State of Gujarat, Respondent
Criminal Appeal No.425 of 1980 (with Spl. Leave Petn. (Cri.) No. 1382 of 1977), D/-12-3-1992.
Anip Sachthey, J.P.PATHAK, P.H.Parekh, R.N.SACH
Headnote:(i) Indian Penal Code 1860 - Sections 326 r/w 34 and 324, 302 r/w 34 - Nature of offence. Grievous- hurt in furtherance of Common intention or Murder. Sessions Judge holding that it was an offence under section 326/34 and 324 I.P.C. High Court holding that it was murder in furtherance of common intention - Appeal against - Whether High Court was right on the facts and evidence? (No)
Held: After giving our anxious consideration to the facts and circumstances of the case and the evidence adduced in the proceedings, it appears to us that P.W. 5, Jitubhai, a Police Constable, is a principal eye-witness in the case. The said Jitubhai did not see either of the appellants to inflict any knife injury. He had only said that Nathu Ramsi gave knife blows to the deceased and as a matter of fact when he tried to prevent, he himself was injured by the knife by Nathu Ramsi. It is also an admitted position that the appellant No.1 had suffered some cut injuries on his person and such injuries does not appear to have been properly explained by the prosecution. The other eye-witnesses, have also said that accused No.1 was found injured at the time of assault. It is, therefore, not unlikely that initially the appellants did not intend to inflict any knife injury on the deceased although they had knives in their hands but after appellant No. 1 was injured the appellants had also inflicted injuries on the deceased.
The doctor has categorically stated that although the injuries were collectively sufficient to cause death, individually any of the injuries was not likely to cause death. In the aforesaid circumstances, it cannot be definitely held that the appellants had been harbouring a common intention to murder the deceased and with such common intention they had inflicted knife injuries on the person of the deceased. In the absence of common intention to murder being established beyond all reasonable doubts, simply on account of death of Rambhai as a result of cumulative effect of all the injuries inflicted on the person of the deceased, a case for conviction for murder under Section 302 read with Section 34 IPC cannot be sustained. In our view, in the facts and circumstances of the case, the learned Sessions Judge was justified in holding that a case under Section 326 read with Section 34 IPC and Section 324 IPC has been established by the prosecution against the appellants. We. therefore allow the criminal appeal and set aside the conviction and sentence passed by the High Court against the appellants under Section 302 read with Section 34 IPC. We, however, affirm the conviction and sentence passed by the learned Sessions Judge against the appellants. Accordingly the special leave petition (Criminal) No. 1382 of 1971 is dismissed. (Para 5)
(ii) Indian Penal Code 1860 - Sections 326/34 and 324, 302/34 - Conviction converted from 302/34 to 326/34 & 324 IPC - Reduction in sentence Facts of case showing that large number of injuries were inflicted on the deceased. Held-No reduction in sentence of 7 yrs. R1 On first Court and 3 years RI on second count which were to run concurrently. (Para 6)
JUDGMENT
G. N. RAY, J.:- The appellants, Rama Meru and Ghelaramsi, who were respectively accused Nos. 7 and 1 in Sessions Case No. 44 of 1976 in the Court of the Sessions Judge, Jamnagar, have preferred Criminal Appeal No. 425 of 1980 to this Court under S. 2 of the SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 against the decision of the High Court of Gujarat in Crl. Appeal No. 301 of 1976 preferred by the State of Gujarat against the said appellants and other accused in the aforesaid Sessions case. In the High Court of Gujarat Crl. Appea No. 161 of 1976 was preferred by Rama Meru, appellant No. 1 and Crl. Appeal No. 162 of 1976 preferred by Ghelaramsi, appellant No. 2, against their conviction and sentence passed by the learned Sessions Judge, Jamnagar, in Sessions Case No. 44 of 1976. Along with Criminal Appeal No. 425 of 1980, the said two appeals, namely, Criminal Appeals Nos. 161 and 162 of 1980 (1976?) were also disposed of by the High Court of Gujarat by a common judgment passed on November 18, 1976. The High Court dismissed the Criminal Appeals Nos. 161 and 162 of 1976 preferred by the accused appellants but partly allowed the Criminal Appeal No. 301 of 1976 preferred by the State of Gujarat and held inter alia that the learned Sessions Judge was not justified in acquitting the appellants for the offence punishable under S.302 read with S. 34, I.P.C. but convicting the appellants only for the offence punishable under S. 326 read with S. 34, I.P.C. and also under S. 324, I.P.C. and awarding sentence on each of the said appellants to undergo a rigorous imprisonment for 17 years under S. 326 read with S. 34, I.P.C. and rigorous imprisonment for three years for the offence punishable under S. 324, I.P.C. with a direction that the sentences should run concurrently. The High Court by the impugned judgment has held that both the appellants should be convicted for offence under S. 302 read with S. 34, I.P.C. and the sentence of 7 years rigorous imprisonment would be substituted by the sentence of imprisonment for life. The High Court of Gujarat, however, affirmed the acquittal of other accused persons and dismissed the Criminal Appeal No. 301 of 1976 preferred by the State of Gujarat against the acquittal of other accused persons.
2. As aforesaid, the appellants have preferred the Criminal Appeal No. 425 of 1980 against the enhancement of the conviction and sentence by the High Court of Gujarat and they have also preferred Special Leave Petition No. 1382 of 1977 against the conviction and sentence passed in the Sessions trial. Special leave petition and the Criminal Appeal have been heard together and are being disposed of by a common judgment. It may be stated in this connection that by an order dated October 21, 1980 passed in Criminal Appeal No. 425 of 1980 at the state of preliminary hearing, this Court has directed that the said Criminal Appeal will be confined to the question whether the alteration of conviction under S. 326, I.P.C. to S. 302, I.P.C. was justified or not. This Court also granted bail to the appellants to the satisfaction of Chief Judicial Magistrate, Jamnagar and the appellants were enlarged on bail. The facts concerning the Sessions Case No. 44 of 1976 in the Court of -the learned Sessions Judge, Jamnagar, out of which the aforesaid Criminal Appeal and Special Leave Petition (Criminal) arise, may be stated as follows:
The deceased Rambhai Sidabhai, his brother and some other persons were charged for murdering Ramsi, Rambhai and another person in the year 1973. Some of the accused were convicted in that case but Rambhal Sidabhai was acquitted. The conviction and sentence were confirmed by the High Court of Gujarat and an appeal before this Court was pending. It is the case of the prosecution that 7 accused persons including the appellants formed an unlawful assembly on April 11, 1976 with the common object of committing the murder of Rambhal Sidabhal who was accused in the said murder case
