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2004 Supreme(Raj) 450
Rajasthan High Court
Honble N.N. MATHUR & SUNIL KUMAR GARG, JJ.
Jahanghir Khan & Others - Appellant
Versus
State of Rajasthan - Respondents
D.B. Criminal Appeal No. 17 of 2000
Decided On : April 30, 2004
M.L. Garg & M.K. Garg, for Appellants B.K. Mehar, Public Prosecutor J.S. Choudhary, for Complainant
Headnote:Penal Code, Secs. 149 & 302/149, 307/149, 326/149, 325/149, 148, 341, 323, 326 – Unlawful Assembly – Common object – No eye witness – Both injured and assailants were present on the spot – Conviction of twelve persons – Held – When there is no evidence worth the name against most of the accused persons excepting a bald, vague and general statement, the conviction of all the accused persons for offence u/S. 302 with the aid of Sec. 149 IPC is not sustainable. (Paras 8 to 10)
The common object of unlawful assembly was limited to attack PW-5 Usman Khan and the deceased Aladdin and did not extent to the murder of deceased Aladdin. Thus, the accused persons who had actually caused injuries to deceased Aladdin are alone responsible for his murder, others would not be liable for the murder with the aid of Section 149 I.P.C. At the most it can be said that the common object of unlawful assembly was to cause simple and grievous injuries to PW-5 Usman Khan and deceased Aladdin. (Para 9)
(i) 302/149 I.P.C. Appellants A-1 to A-6 and A-8 to A-12 have been sentenced for imprisonment for life and to pay a fine of Rs. 1000/-; in default of payment to further undergo one years simple imprisonment.
(ii) 307/149 I.P.C. Appellants A-1 to A-6 and A-8 to A-12 have been sentenced to seven years rigorous imprisonment and to pay a fine of Rs. 700/-; in default of payment to further undergo seven months simple imprisonment.
(iii) 326/149 I.P.C. Appellants A-1 to A-6 and A-8 to A-12 have been sentenced to five years rigorous imprisonment and to pay a fine of Rs. 500/-; in default of payment to further undergo five months simple imprisonment.
(iv) 325/149 I.P.C. Appellants A-1 to A-6 and A-8 to A-12 have been sentenced to three years rigorous imprisonment and to pay a fine of Rs. 300/-; in default of payment to further undergo three months simple imprisonment.
(v) 148 I.P.C. Appellants A-1 to A-6 and A-8 to A-12 have been sentenced to one years rigorous imprisonment and to pay a fine of Rs. 200/-; in default of payment to further undergo two months simple imprisonment.
(vi) 341 I.P.C. Appellants A-1 to A-6 and A-8 to A-12 have been ordered to pay a fine of Rs. 200/-; in default of payment to further undergo seven days simple imprisonment.
(vii) 323 I.P.C. Appellants A-1 to A-6 and A-8 to A-12 have been sentenced to three months rigorous imprisonment and to pay a fine of Rs. 100/- ; in default of payment to further undergo one months simple imprisonment.
(viii) 326 I.P.C. Appellant A-7 Manohar Khan has been sentenced to five years rigorous imprisonment and to pay a fine of Rs. 500/-; in default of payment to further undergo five months simple imprisonment.
All the sentences have been ordered to run concurrently.
(2). Briefly stated the prosecution case is that on 11.07.1998, PW-3 Ibrahim Khan lodged a written First Information Report at Police Station Bilara stating inter alia that in the morning at about 10:00 A.M. his father PW-5 Usman Khan and uncle Aladdin Khan were on way to their fields. When they reached near the field, appellants armed with deadly weapons came out from the hideous and mounted attack on them. Appellants A-2 Barkat and A-7 Manohar Khan gave lathi blows on the legs of PW-5 Usman Khan on account of which he fell down. Other accused persons inflicted injuries to Usman Khan by lathis. After causing injuries to Usman Khan, they chased Aladdin and caught-hold of him. A-12 Ibrahim Khan gave a lathi blow which struck on his legs on account of which he fell down. Thereafter, A-7 Manohar Khan gave a khoot blow causing injury on the head. A-2 Barkat and A-1 Jahanghir Khan also gave lathi blows causing injuries on the hand. A-11 Noor Mohd., A-5 Jakir, A-9 Saddiq Khan, A-3 Yunus, A-6 Josab, A- 10 Farooq and A-7 Manohar Khan gave lathi blows causing injuries on various parts of the body. A-8 Lukman drove tractor on the legs of the Aladdin causing crush injuries. A-12 Ibrahim Khan also inflicted lathi blows on the hand. Cries attracted the neighbours namely PW-4 Hasam Khan and Mubarak Khan. All the accused persons seeing them, took their heels and escaped. Both the injured were admitted in the hospital. Aladdin died in the hospital. Police registered the case for offence under Section 302 I.P.C. and allied offences. Police inspected the site and prepared the site plan and inquest memo. Dead body was sent for post mortem. PW-8 Dr. Bheemdan Detha conducted the post mortem of the dead body of Aladdin and noticed following injuries vide Exhibit P-42:-
``1. Incised wound : 6 cm x 2 cm x bone deep on right occipital parietal region. On di
