IMPORTANT POINT
Identity of persons comprising assembly is a matter relating to determination of guilt of individual accused.

JUDGMENT :

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 20.11.2018 passed by the High Court of Judicature for Rajasthan Bench at Jaipur passed in D.B. Criminal Appeal No.818 of 2013 by which the Division Bench of the High Court has partly allowed the said appeal preferred by the respondent accused – Vijendra Singh and has set aside the conviction for the offence punishable under Section 302/149 IPC but has convicted for the offence punishable under Section 323 IPC, the original complainant/informant has preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:

2.1 An FIR was lodged by the police on 01.12.2010 for an incident which took place on 28.11.2010. In the FIR it was alleged that on 28.11.2010, while complainant’s younger brother Narendra Singh was filling water from hand-pump at around 9.30 a.m. accused Bhupendra Singh, Vijendra Singh and Bhawani Singh, Sangeeta and Gulab Kanwar caused lathi blows to Narendra Singh. In the said incident Narendra Singh and Bhawani Singh became unconscious. Both of them were taken to the hospital. Bhawani Singh died. The FIR was registered as FIR bearing no.445/2010. Though the five persons were named in the FIR the police filed charge-sheet only against two persons namely Bhupendra Singh and Vijendra Singh for the offence under Sections 341, 323, 325/34, 308/34 and 302 and alternatively, Section 302/34 IPC. Both the aforesaid accused came to be tried for the aforesaid offence. To prove the charge against the accused the prosecution examined ten witnesses and brought on record seven documentary evidences. The statements of the accused under Section 313 Cr.P.C. were recorded.

2.2 During the trial, the accused Bhupendra Singh died. Thus, the proceedings against him stood abated. The prosecution submitted an application under Section 319 Cr.P.C. against the remaining three accused persons so left out by the prosecution. The said application was dismissed by the learned Trial Court. However, on a challenge before the High Court and on remand, the learned Trial Court directed to try the remaining three accused as accused and passed a summoning order of additional accused. However, as the remaining three accused absconded for number of years pursuant to the order passed by the High Court, the trial against the respondent herein accused Vijendra Singh came to be separated. Charge came to be reframed and the accused Vijendra Singh came to be charged for the offence under Section 302/149 IPC also. Thereafter on conclusion of the trial, the learned Trial Court convicted the accused Vijendra Singh for the offence punishable under Sections 147, 323, 302/149 IPC and sentenced him to undergo life imprisonment for the offence punishable under Sections 302 read with Section 149 IPC, one year R.I. for the offence under Section 323 IPC and two years R.I. for the offence under Section 147 IPC.

2.3 The respondent herein – accused preferred the present appeal before the High Court. By the impugned judgment and order the High Court has set aside the conviction of the accused Vijendra Singh for offence under Section 302 read with Section 149 IPC by observing that no case is made out for conviction with the aid of Section 149 IPC. That thereafter the High Court has considered the individual act of the accused and thereafter after taking into consideration the fact that the fatal blow on the head was given by accused Bhupendra Singh (who died during the trial) and the weapon used by the accused was lathi, the High Court by the impugned judgment and order has convicted the accused for the offence under Section 323 IPC.

2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court convicting the accused for the offence under Section 302 read with Section 149 IPC, the original complainant/informant Surendra Singh has preferred the present appeal.

3. Shri Siddhartha Dave, learned Senior Advocate