Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1985 Supreme(Raj) 777

RAJASTHAN HIGH COURT AT JAIPUR BENCH
M.C.Chopra, J.R.Chopra, JJ.
Ahamed Ali Khan And Anr. - Appellant
Versus
State Of Rajasthan - Respondent
D.B Cr. Appeal No.77 of 1975.
Decided On : 6-11-1985

Advocates:
For the Appellants:V.D. Calla, Advocate.
For the Respondent: L.S. Udawat, P.P.

The common intention required for a conviction under Section 302/34 IPC must be clearly established, and in the absence of such evidence, the accused cannot be held guilty of murder.

Headnote:
CRIMINAL APPEAL - SECTION 302/34, 323 INDIAN PENAL CODE - FACTUAL BACKGROUND, WITNESS TESTIMONY, APPLICABILITY OF SECTION 34, COMMON INTENTION, AND CONVICTION UNDER SECTION 323 - SUMMARY
Fact of the Case:

The appellants, Ahamed Ali Khan and Rahamat Ali, were convicted of murder (Section 302/34 IPC) and sentenced to life imprisonment for the death of Nathu Khan. The prosecution alleged that the accused had a dispute with the deceased over a watercourse and that the deceased had supported a third party in the dispute, leading to strained relations. On the day of the incident, the deceased and one of the accused were seen arguing in a market, and the deceased was later found dead at a bus stand with injuries indicating strangulation.
Finding of the Court:

The court found that the testimony of the main eyewitness, Sampatram, was credible and that he had witnessed the accused assaulting the deceased with slaps, fists, and kicks. However, the court held that there was no evidence to establish which of the accused had caused the fatal strangulation injury, and therefore, the common intention required for a conviction under Section 302/34 IPC could not be established.
Issues: 1. Whether the testimony of the eyewitness, Sampatram, was credible and reliable. 2. Whether the prosecution had proved beyond reasonable doubt that the accused had the common intention to cause the death of the deceased. 3. Whether the accused could be convicted under Section 323 IPC for causing simple injuries to the deceased.
Ratio Decidendi: 1. The court found that Sampatram's testimony was credible as it was corroborated by the first information report lodged by Balu Khan, who had received the information from Sampatram. The court also considered the background of the dispute between the accused and the deceased and found that it did not provide a sufficient motive for the accused to kill the deceased. 2. The court held that the prosecution had failed to prove beyond reasonable doubt that the accused shared a common intention to cause the death of the deceased. The court noted that there was no evidence to indicate that the accused had planned or agreed to kill the deceased, and that the strangulation injury appeared to be a spontaneous act by one of the accused. 3. The court held that the accused could be convicted under Section 323 IPC for causing simple injuries to the deceased, as the testimony of Sampatram established that the accused had assaulted the deceased with slaps, fists, and kicks.
Final Decision: The court partly allowed the appeal. The convictions and sentences of the accused under Section 302/34 IPC were set aside, and they were convicted under Section 323 IPC and sentenced to one year's rigorous imprisonment. However, since the accused had already served more than a year in custody, they were released on bail and their bail bonds were discharged.

JUDGMENT

1. - The appellants Ahamed Ali Khan and Rahamat Ali have been convicted of the offence under Section 302/34, Indian Penal Code and have been sentenced to imprisonment for life by the Additional Sessions Judge, Churu by his judgment dated December 23, 1974.

2. The prosecution case in brief is that Sadulekhan PW 8 and Mukkarab Khan are the real brothers, the deceased Nathu Khan was the son of Sadulekhand, accused Ahmed Ali and Nizam Ali are the son of Mukarab Khan. There was some dispute between Mukarab Khan on the one side and Rahamat Ali and Ahamed Ali on the other side in connection with passage of water through the water course. In that connection permission was obtained by Mahaboob Khan and he had put up a Nali which was removed by the accused persons. In that matter deceased Nathu Khan had supported Mahaboob Khan and as such the relations between the deceased and Ahamed Ali and Rehmat Ali had become stained. It is alleged that on 8-7-1974 Ahamed Ali and Nathu Khan were at Churu, Ahmed Ali was serving in the PWD as mistry and Nathu Khan was a labourer. They used to come from Bissau on cycles. Balu Khan PW 2 is the brother-in-law of the deceased Nathu Khan and is residing at Churu. Balu khan had seen Nathu Khan as well as Ahamed Ali at about 5.15 p.m. of 8-7-1974 in the Bazar near Peepal-gate Rameshwar Dholi of Ramsara was also present at that place. He asked them not to quarrel with each other and thereafter Nathukhan had left the place and Ahmed Ali followed him for Bissau. The prosecution story further proceeds that Sampatram PW 1 who was a TB Patient had gone to Bissau from Churu which is at a distance of 9 miles. He had gone to Bissau in connection with getting himself examined by some Vaidya and on that date he was returning from Bissau. At about 5.45 p m. he reached Balarsar bus stand at a distance of two miles from Bissau and seven miles from Churu. He observed both the accused persons giving slaps, kicks and fist blows to Nathu Khan. Nathu Khan was known to him from before. He asked the accused persons not to beat Nathu Khan thereupon he himself was threatened. He then left the place and went to Churu and informed about the occurrence to Balu Khan and both of them went to the place of occurrence and saw Nathu Khan lying dead at the bus stand. The both of them returned to Churu. As Balu Khan was not a cyclist and on being asked by him Sampatram took him to the Police Station on his cycle and left him out side the Police Station. Balu Khan then went inside the Police Station and lodged the report Ex. P 2. On this report a case under Section 302, Indian Penal Code was registered by Munshi Ram PW 3 who was Incharge of the Police Station Churu recorded the statement of Balu khan and on the next day Shivdan Singh undertook the investigation from him. Shivdan Singh PW 18 was the second officer. He visited the spot on 9-7-1974 and conducted the investigation and found the cycle of the deceased along with some bags and his chappals were also found at the spot. Autopsy was conducted on the dead body of the deceased by Dr. K.L. Gupta, PW 17. He found the following injuries on the person of Nathu Khan.

(a) There was a well defined mark of the size the lateral and of which was 7" and the medial and was 3". It was extending from the right sternum mastoid muscle about 1" on the left of mid line. The above down-ward entrusion was from the abdomen prominence to the right clavicle inner ⅔rd portion. One over the ligature skin was dried up looked like parchment paper,

(b)(i) Bruises on both scrotum of the size of 2" x 2" on either side of mid line;

(ii) Bruises at the root of penis 2" x 2";

(iii) Bruises in an area 3" x 3" on left ingulal region;

(iv) Abrasion over the left lumber region posteriorly 4" x 4";

(v) Abrasion 1/2" x 1/2" over the left maleous;

(c)(i) Blood stains present over the face left cheek;

(ii) Blood foam coming from both the nostrils;

(iii) Tongue was swollen and protruding from the mouth.

According to Dr. Gupta ther

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1985 Supreme(Raj) 777

RAJASTHAN HIGH COURT AT JAIPUR BENCHM.C.Chopra, J.R.Chopra, JJ.Ahamed Ali Khan And Anr. - AppellantVersusState Of Rajasthan - RespondentD.B Cr. Appeal No.77 of 1975.Decided On : 6-11-1985

The common intention required for a conviction under Section 302/34 IPC must be clearly established, and in the absence of such evidence, the accused cannot be held guilty of murder.

RAJASTHAN HIGH COURT AT JAIPUR BENCH
M.C.Chopra, J.R.Chopra, JJ.
Ahamed Ali Khan And Anr. - Appellant
Versus
State Of Rajasthan - Respondent
D.B Cr. Appeal No.77 of 1975.
Decided On : 6-11-1985