IMPORTANT POINTS
When out of 10 accused charged and tried 6 were acquitted, provisions of section 149 IPC would not be available to prosecution.
Ingredients of section 304 Part I discussed and applied.

Headnote:(a) Criminal trial – Motive/genesis – Defence contending that the incident occurred because the deceased Gopal attempted sodomy on Jaipal – No evidence on record – Defence not examining Jaipal, the alleged victim – Contention rejected. (Para 6)
       (b) Indian Penal Code, 1860 – Section 141 and 149 – Ten accused forming an unlawful assembly – Six accused acquitted – Remaining four accused convicted – Number of convicted being less than 5, they could not be said to form unlawful assembly – Provisions of section 149 not available to the prosecution – Accused-appellants could not be convicted with the help of section 149. (Para 12)
       AIR 1963 SC 174; (1991) 2 SCC 532 – Relied upon
       (c) Indian Penal Code, 1860 – Section 304 Part I – Appellant inflicting one lathi blow on head of deceased – Sufficient in the ordinary course to cause death – Incident without any pre-meditation and in a sudden quarrel and fight – Injuries upon deceased inflicted in heat of passion – Appellant not taking any undue advantage or acting in a cruel or unusual manner – The act intended to cause such bodily injury as was likely to cause death – Not culpable homicide amounting to murder – Section 304 Part I applies. (Para 16, 17)
       AIR 1958 SC 465 – Relied upon
       Facts of the case:
       On 2nd July, 1998 at about 10 O’ clock in the morning Ved Pal and his brother Gopal, now deceased, were watering their fields. At about 12.00 noon Jai Pal entered their field in which the two brothers had grown their paddy crop. Deceased-Gopal objected to Jai Pal’s trespass into the paddy crop to which objection Jai Pal gave an abusive reply insisting that he would pass through the paddy crop regardless of Gopal’s objection. While this altercation was going on between deceased-Gopal and Jai Pal, 10 to 12 persons appeared on the spot armed with lathis, pharsas and ballams. They included Har Chand, Digamber and Bhagat Singh sons of Jairam; Rajbir, Lal and Bhola sons of Har Chand; Jagdish son of Girraj; Rattan Lal son of Jagdish; Naresh and Rajkumar sons of Ramesh all Jats by caste and residents of village Doongriwala. They are alleged to have given a lalkara to eliminate Ved Pal and deceased Gopal and assaulted both of them causing several injuries including an injury on the head of the deceased-Gopal that felled him to the ground.
       The Trial Court convicted and sentenced all the accused u/s 302, 325, 323 and 148 r/w section 149 IPC.
       The High Court allowed the appeal filed by Digamber, Rajbir, Lala, Bhola, Jagdish and Raj Kapoor, while the appeal by Har Chand, Raman Lal, Naresh and Bhagat Singh was dismissed.
       Har Chand, Raman Lal, Naresh and Bhagat Singh have filed these appeals.
       Finding of the Court:
       The conviction of Appellants-Raman Lal, Naresh and Bhagat Singh for offences punishable under section 302 r/w 149 set aside. However their conviction and sentence under Sections 325 and 323 of the IPC affirmed.
       Appellant Har Chand convicted and sentenced under Section 304 Part-I instead of section 302.
       Result: Appeals allowed in part.

JUDGMENT

T.S. THAKUR, J.

1. These two appeals by special leave assail a common judgment and order dated 7th May, 2009 passed by a Division Bench of the High Court of Punjab and Haryana at Chandigarh whereby Criminal Appeal No.631 of 2000 filed by the appellants challenging their conviction for offences punishable under Sections 323, 325, 302 read with Section 149 of the IPC has been dismissed and the sentence of life imprisonment awarded to each one of them by the trial Court affirmed.

2. The prosecution case in a nutshell is that on 2nd July, 1998 at about 10 O’ clock in the morning Ved Pal and his brother Gopal, now deceased, were watering their fields in village Doongriwala, district Faridabad in the State of Haryana. At about 12.00 noon Jai Pal, son of Nihar Singh entered their field in which the two brothers had grown their paddy crop. Deceased-Gopal appears to have objected to Jai Pal’s trespass into the paddy crop to which objection Jai Pal gave an abusive reply insisting that he would pass through the paddy crop regardless of Gopal’s objection. While this altercation was going on between deceased-Gopal and Jai Pal, 10 to 12 persons appeared on the spot armed with lathis, pharsas and ballams. They included Har Chand, Digamber and Bhagat Singh sons of Jairam; Rajbir, Lal and Bhola sons of Har Chand; Jagdish son of Girraj; Rattan Lal son of Jagdish; Naresh and Rajkumar sons of Ramesh all Jats by caste and residents of village Doongriwala. They are alleged to have given a lalkara to eliminate Ved Pal and deceased Gopal and assaulted both of them causing several injuries including an injury on the head of the deceased-Gopal that felled him to the ground. The injured were removed to the hospital at Hodal for treatment where Ved Pal made a statement which was made before ASI Narain Singh that led to the registration of a case against the persons aforementioned for offences punishable under Sections 148, 149, 323 and 307 of the IPC. With Gopal succumbing to the injuries in the Escorts Hospital at Faridabad, the offence under Section 307 of the IPC was converted into one of murder punishable under Section 302 of the IPC. Investigation by the police led to the arrest of accused Har Chand, Digambar and Jagdish on 3rd July, 1998. Several recoveries from the accused persons are said to have been made in the course of investigation which culminated in filing of a charge-sheet against ten persons in all excluding Bhagat Singh son of Jai Ram who even though named in the FIR, was found innocent while Jai Pal being a juvenile was referred to the Juvenile Court at Faridabad. The net result was that nine out of those named in the FIR only were eventually committed to face the trial before the Additional Sessions Judge at Faridabad for offences under Sections 148, 323, 325 and 302 read with Section 149 of the IPC. At the trial, Bhagat Singh son of Jai Ram was also added as an accused under Section 319 of the Cr.P.C, taking the number of those accused to face the trial to ten in all.

3. In support of its case, the prosecution examined as many as ten witnesses. These included the first informant Ved Pal examined as PW-1; Prakash examined as PW-2; Kishan Singh examined as PW-3; Satbir Singh examined as PW-4 and Drs. HK Mishra, VR Gupta and SP Jayant examined as PWs 5, 6 and 10 respectively. The remaining witnesses happened to be police officials including the investigating officer. The accused did not lead any evidence in defence. In their statements recorded under Section 313 of the Cr.P.C., they alleged false implication. It was further alleged that Jai Prakash and Har Chand alone were present on the spot at the time of the incident and that the remaining nine accused persons had been falsely implicated. Their further case was that on the fateful day Jai Pal was watering his fields when deceased Gopal tried to commit sodomy upon him. Har Chand noticed this attempt of the deceased and objected to it, whereupon deceased Gopal inflicted a lath

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2015 Supreme(SC) 431

SUPREME COURT OF INDIA T.S. THAKUR, ROHINTON FALI NARIMAN, JJ.Ramanlal and Anr. – AppellantsVersus State of Haryana – RespondentCRIMINAL APPEAL NO.2279 OF 2009 WITHBhagat Singh and Anr. – Appellants VersusState of Haryana – RespondentCRIMINAL APPEAL NO.1351 OF 2010Decided On : 15-05-2015

IMPORTANT POINTSWhen out of 10 accused charged and tried 6 were acquitted, provisions of section 149 IPC would not be available to prosecution. Ingredients of section 304 Part I discussed and applied.

Cases Referred (3)

IMPORTANT POINTS
When out of 10 accused charged and tried 6 were acquitted, provisions of section 149 IPC would not be available to prosecution.
Ingredients of section 304 Part I discussed and applied.