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SUPREME COURT OF INDIA
K.S. RADHAKRISHNAN & DIPAK MISRA, JJ.
State of Rajasthan – Appellant
Versus
Manoj Kumar & Others – Respondents
Criminal Appeal No. 885 of 2007 With Criminal Appeal No. 1073 of 2007
Decided On : 11-04-2014
(1968) 2 SCR 455; (1979) 2 SCC 648; 1980 Supp SCC 215 – Relied upon
(b) Indian Penal Code, 1860 – sections 96 and 100 – Right to private defence should be construed liberally – However if this right is exceeded causing death, it will result in application of section 300, exception 2. (Para 13)
(1968) 2 SCR 455; 1980 Supp SCC 215; (2008) 16 SCC 657 – Relied upon
(c) Indian Penal Code, 1860 – Section 304, Part I – Appellant firing gunshot – Not with intention of causing death of deceased – High Court rightly converting conviction from under section 302 to section 304, Part I. (Para 14)
AIR 1971 SC 1857; (2010) 7 SCC 477 – Relied upon
(d) Indian Penal Code, 1860 – Section 34 – Two co-accused accompanying Raj Kumar supporting him in protection of his plot – Raj Kumar alone firing gunshot – Common intention not made out from records – No overt act attributed to co-accused persons – Section 34 not attracted – High Court rightly acquitted them. (Para 16, 17)
(1969) 2 SCC 207; (1971) 3 SCC 449 – Relied upon
Facts of the case:
One Anirudh Mishra was assaulted and shot at by Manoj, Raju and Hemant. Anirudh Mishra later succumbed to his injuries.
The three accused were charged with offences u/s 307 (later converted into 302) IPC and
Sections 25 and 27 of the Arms Act.
Trial Judge convicted Raj Kumar under section 302 read with Section 34 IPC and also under Sections 25/27 of the Arms Act, and Hemant for the offences under Section 302/34 IPC. In the second trial, accused Manoj was convicted under Section 302/34, IPC.
High Court converted conviction of Raju to one under Section 304 Part-I IPC and sentenced him as stated hereinbefore. As far as accused Hemant and Manoj are concerned, it opined that their conviction could not be sustained in aid of Section 34, IPC, for in the obtaining facts and circumstances Section 34 was not applicable.
Hemant Kumar preferred independent appeal and has been acquitted of all charges.
Raju had expired during pendency of the appeal.
Finding of the Court:
There is no merit in the appeals.
Result: Appeals dismissed.
JUDGMENT
Dipak Misra, J.
The present appeals, by special leave, have been preferred against the common judgment and order dated 14.2.2006 passed by the High Court of Judicature for Rajasthan, Jaipur Bench at Jaipur in D.B. Criminal Appeal No. 396 of 2000 and D.B. Criminal Appeal No. 1011 of 2003, wherein the High Court has partly allowed the appeal of Raju @ Rajkumar by converting his conviction under Section 302 IPC to one under Section 304 Part I of IPC and further confirming his conviction under Sections 25 and 27 of the Arms Act and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.500/-, in default of payment of fine, to suffer further six months rigorous imprisonment. Hemant Kumar, a co-accused along with Raju and Manoj Kumar, who had preferred an independent appeal, has been acquitted of all charges.
2. At the very outset we may state that Raju @ Rajkumar has expired on 8.3.2012 and in proof thereof a death certificate has been brought on record. In view of the same, the Criminal Appeal No. 1073 of 2007 would stand abated as far as Raju @ Rajkumar is concerned and would only survive against the accused Hemant Kumar.
3. The prosecution case, in brief, is that the police recorded the statement of deceased Anirudh Mishra at Sri Kalyan Hospital Sikar on May 26, 1998 who had stated that around 8:30 p.m. on that day he along with his brother Basant Mishra, PW 4, and Mahesh Kumar Saini, PW 3, had gone to the vacant plot belonging to him and his brother situated at Lisadia ka Bas being apprehensive that that sons of Ram Niwas and Shanti Prasad would take possession of the plot. At that point of time sons of Ram Niwas and Shanti Prasad were present at the house of Phoolji Lisadiya situate adjacent to the plot. As per his version, they first abused him and thereafter opened fire as a result of which he had sustained a gun shot injury on the right side of his chest and his brother Ramesh @ Umesh, PW 5, had brought him to the hospital. On the basis of his statement the concerned police officer registered FIR No. 243 of 1998 for the offences punishable under sections 307 and 149 of IPC. However, after the death of Anirudh, the offence was converted to one under section 302 IPC and investigation commenced. During the course of investigation, Raju and Hemant were arrested and Manoj was declared as an absconder. A charge sheet was filed against Raju and Hemant for the offences under sections 302, 302/34 IPC and for offences under Section 3/25, 3/27 and 3/33 of the Arms Act and it became the subject matter of S.C. No. 34 of 1998. After Manoj was arrested, a charge sheet was submitted against him for the offence under Section 302/34 of IPC and he faced a separate trial in S.C. No. 8 of 2002.
4. The accused persons abjured their guilt and pleaded false implication because of property dispute and animosity. In order to prove its case the prosecution in the first trial examined as many as sixteen witnesses and got marked thirty-seven documents and also brought eight articles on record. In the second trial, the prosecution examined as many as twelve witnesses and similar numbers of documents were exhibited. In the second trial the defence produced one witness and tendered four documents in support of its plea.
5. The witnesses in both the trials are common and the prime witnesses, as mentioned in first trial are, Anjani Kumar, PW 1, brother of the deceased, Mahesh Kumar Saini, PW 2 an eye witness, Basant Kumar, PW-4, brother of the deceased, PW 5, Ramesh @ Umesh, another brother of the deceased, Dr. V.K. Soni, PW 6, who had examined the deceased and prepared the x-ray report, Dr. G.R. Tanwar, PW 10, who had conducted the post-mortem and Bhagwan Singh, PW 12, the Investigating Officer. After examining the oral and documentary evidence the learned trial Judge convicted Raj Kumar under section 302 read with Section 34 IPC and also under Sections 25/27 of the Arms Act, and Hemant for the offences under Section 302/34
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