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2019 Supreme(Raj) 990
IN THE HIGH COURT OF RAJASTHAN
Sandeep Mehta, Abhay Chaturvedi, JJ.
Keshar Singh - Appellant
Vs.
State of Rajasthan - Respondent
Criminal Appeal No. 766 of 2015
Decided On : 21-10-2019
Pradeep Shah, Adv., Anil Joshi, Adv., Bhagat Dadhich, Adv.
In a case of a free fight, Section 34 and 149 IPC cannot be applied to attribute common intention to all the accused.
Headnote:
CRIMINAL APPEAL - SECTION 302 IPC - MURDER - CONVICTION AND SENTENCE - EVIDENCE - EYE-WITNESSES - MEDICAL EVIDENCE - FSL REPORT - COMMON INTENTION - FREE FIGHT - SECTION 34 AND 149 IPC - NOT APPLICABLE - APPEAL DISMISSED.
Fact of the Case:
The appellant was convicted and sentenced to life imprisonment for the murder of Jitendra Singh. The prosecution alleged that the appellant and his family members attacked Jitendra Singh with knives, axes, and lathis, causing his death. The appellant claimed that he was falsely implicated and that Jitendra Singh was killed by his son in self-defense.
Finding of the Court:
The court found that the prosecution had proved its case beyond a reasonable doubt. The court relied on the testimony of the eyewitnesses, the medical evidence, and the FSL report to conclude that the appellant had inflicted the fatal knife wound on Jitendra Singh. The court also found that the appellant had the common intention to kill Jitendra Singh, but that Section 34 and 149 IPC could not be applied because the case was one of a free fight.
Issues: 1. Whether the prosecution had proved its case beyond a reasonable doubt. 2. Whether the appellant had the common intention to kill Jitendra Singh. 3. Whether Section 34 and 149 IPC could be applied to the case.
Ratio Decidendi: 1. The court held that the prosecution had proved its case beyond a reasonable doubt based on the testimony of the eyewitnesses, the medical evidence, and the FSL report. 2. The court held that the appellant had the common intention to kill Jitendra Singh, but that Section 34 and 149 IPC could not be applied because the case was one of a free fight.
Final Decision: The court dismissed the appeal and upheld the conviction and sentence of the appellant.
JUDGMENT :
Sandeep Mehta, J.
The appellant herein has been convicted and sentenced as below vide judgment dated 05.08.2015 passed by the learned Additional Sessions Judge, Parbatsar, District Nagaur in Sessions Case No.64/2011 (67/2014):
| Offences | Sentences | Fine | Fine Default sentences |
| Section 302 IPC | Life Imprisonment | Rs.5,000/- | 1 Month's S.I. |
| Section 341 IPC | 1 Month's S.I. |
|
|
Both the substantive sentences were ordered to run concurrently.
2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C.
3. Brief facts relevant and essential for disposal of the appeal are noted herein below:
4. Dhan Singh (PW-1) lodged a typed report (Ex.P/1) to the SHO, Police Station Makrana, District Nagaur on 11.07.2011 at 05.15 pm. alleging inter alia that on the same day at about 2 O' Clock in the afternoon, Jitendra Singh son of Sher Singh was coming out of his house when the appellant Keshar Singh armed with a knife, Vikram Singh son of Keshar Singh armed with an axe, Santosh Kanwar wife of Keshar Singh armed with a lathi, Gulab Kanwar armed with a lathi, Bajrang Singh @ Bholu son of Keshar Singh armed with a knife, all came around in a white coloured Marshall Jeep and launched a consorted attack on Jitendra. The ladies also assaulted Jitendra with lathis. Owing to the assault, the intestine of Jitendra Singh spilled out. The informant tried to intervene on which, Vikram Singh gave him an axe blow on the head and the others hit him on the back. He shouted on which, Jai Kanwar wife of Bhanwar Singh, Pradeep Singh son of Bhanwar Singh and Om Kanwar wife of Dhan Singh intervened and saved him from the assailants. Jitendra was taken to the Makrana Hospital for treatment from where, he was referred to Ajmer but on the way, Jitendra breathed his last. On the basis of the report aforesaid, an FIR No.197/2011 (Ex.P/39) came to be registered at the Police Station Makrana. The investigation was assigned to Ladu Singh (PW-20) S.I. posted at Police Station Makrana. He undertook the requisite steps during investigation and prepared the following documents:
(i) Fard Surathaal Lash of deceased Jitendra Singh- Ex.P/9,
(ii) Panchayatnama of the dead body of Jitendra Singh Ex.P/3,
(iii) Memorandum of handing over the dead body of deceased Jitendra Singh Ex.P/10,
(iv) Seizure memo of clothes of the deceased Jitendra Singh Ex.P/14,
(v) Site Inspection Memo Ex.P/2,
(vi) Seizure memo of blood stained marble piece from the place of occurrence- Ex.P/4,
(vii) Seizure memo of blood stained soil from the place of occurrence- Ex.P/5,
(viii) Seizure memo of control soil- Ex.P/6,
(ix) Seizure memo of glass bangles pieces and chain of small pearls - Ex.P/7,
5. Thereafter, he recorded the statements of various witnesses viz. Dhan Singh- first informant, Bhanwar Kanwar, Om Kanwar, Pradeep Singh and Bhagwana Ram under Section 161 Cr.P.C. The articles seized from the place of incident were deposited in the Maalkhana. The accused Keshar Singh was arrested on 11.07.2011 vide arrest memo (Ex.P/26) and the accused Santosh Kanwar was arrested vide arrest memo (Ex.P/27). Keshar Singh gave an information to the I.O. under Section 27 of the Evidence Act which was recorded in memorandum (Ex.P/28) regarding concealment of the knife used to stab Jitendra Singh in his house. The accused Santosh Kanwar also gave an information to the I.O. under Section 27 of the Evidence Act which was recorded in memorandum (Ex.P/29) and acting in furtherance whereof, the I.O. got recovered a lathi. The postmortem report of the deceased Jitendra Singh and the injury report of the injured Dhan Singh were collected and taken on record. Having undertaken these steps of investigation, Shri Ladu Singh handed over the file to Ram Chandra (PW-18), SHO, Police Station Makrana. Finally, a charge-sheet came
