Holding

The offence committed by the appellants falls under Section 304 Part II read with Section 149 IPC, not under Section 302 IPC.

Summary

Ten persons attacked a bullock‑cart carrying the complainant party; one victim, Bhura, died and another, Badri, was injured. Five of the accused (the appellants) were convicted by the trial court and the High Court under Section 302 (murder) and Section 148 IPC. On appeal, the Supreme Court examined whether the appellants had a common intention to cause death, as required for murder, or only to cause injuries, which would attract Section 304 Part II read with Section 149. The Court held that the evidence showed only an intention to inflict injuries and that the death was a probable consequence, not a pre‑meditated objective, thus the appropriate charge was culpable homicide not amounting to murder under Section 304 Part II together with Section 149. The omission of a specific charge under Section 149 was deemed a mere irregularity that did not prejudice the appellants. Consequently, the conviction under Section 302 was set aside, the appellants were reconvicted under Section 304 Part II read with Section 149 and sentenced to five years’ rigorous imprisonment, while the conviction under Section 148 was upheld.

Issues considered

Whether the appellants shared a common intention to cause death of the deceased, thereby attracting Section 302 IPC, or only a common intention to cause injuries, attracting Section 304 Part II IPC read with Section 149.
Whether the failure to specifically mention Section 149 IPC in the charge constitutes a fatal irregularity.

Legislation cited

Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 304 Part II

Subjects

murderculpable homicide not amounting to murderSection 149 unlawful assemblycharge framing irregularityconvictionappellate jurisdictionIndian Penal Code

Judgment

A RAMKISHAN AND OTHERS
v.
STATE OF RAJASTHAN

SEPTEMBER 2, 1997

B (DR. A.S. ANAND AND K. VENKATASWAMI, JJ.]

Indian Penal Code, 1860:

Ss. 304 (Pmt-II)/ 149 and 148-Ten accused including five appellants
C prosecuted u/s. 302/148--Prosecution case indicating 10-12 persons having
attacked complainant party out of whom one died and others received (
injurie~High Cowt acquitting five of the accused and convicting the five
appellants u/s. 302 and s. 148-High Court upholding the conviction and
sentence-Held, on the basis of finding of trial court, the intention of appel-
lants could only have been to cause injuries to deceased and they did not
D share any common intention to cause death of deceased-Medical evidence
also does not support the ultimate finding recorded by trial court-In the
circumstances the case would fall under s. 304, palt ll read with s. 149-Con-
viction and sentence u/s. 302 is set asid~Appellants convicted under s. 304
part II read with s. 149-Each one of them would suffer 5 years 1igorous
E implisonment.

S. 149-Though no specific change indicating the applicability of s. 149
was framed, but all the ingredients of the section were clearly indicated in the
charge framed against the appellants--Omission to mention s. 149 in the
charge is only an ilregularity.
F Willie (William) Slaney v. State of Madhya Pradesh, AIR (1956) SC
116, followed.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
626 qf 1986.
G
From the Judgment and Order dated 6.5.86 of the Rajasthan High
Court in D.B. Cr!. A. No. 554 of 1983 .

.Shanti Swarup Sharma, (NP) for the Appellants.

H K.S. Bhati for the Respondents.
700
RAMKISHAN v. STATE 701

The following Order of the Court was delivered : A

Five appellants alongwith five others were tried for offences under
Sections 302, 148 IPC and some minor offences. The learned Sessions
Judge acquitted five co-accused of the appellants but convicted and sen-
tenced them for offences under Section 302/148 IPC. They filed an appeal B
in the High Court which was dismissed by the Division Bench of the High
Court on 6th May, 1986. By special leave the appellants have called in
question the judgment of the High Court dated May 6, 1986.

In short, the prosecution case is that on 14th November, 1981 at
about 10.00 p.m. when the complainant party was taking its bullock cart C
through a path way of the abadi to village Galla Kua, the cart suffered a
sudden and violent jerk. It was noticed that a ditch had been freshly dug
in the path way, though the complainant party had not noticed the existence
of any such ditch earlier on their way to the forests in the evening. As soon
as the bullock cart suffered a jerk, 10 or 12 persons came out from house D
of Ranjita and Hira. They were armed with sticks and axes. They assaulted
Bhura, Badri, Dhanna and Ramphool. Ramphool and Dhanna, however,
escaped unhurt. Bhura succumbed to the injuries. Badri also received
injuries. Ramphool, PW. 3, went to the police station and lodged the First
Information Report on 15th November, 1981 at about 6.45 a.m. The
investigation was taken in hand and ten persons including five appellants E
were sent up for trial. According to the prosecution case the assailants had
mounted the attack on the complainant party and inflicted injuries on
Bhura and Badri with a view to take revenge for a violent incident which
took place in 1973 when Ranjita; appellant, suffered fracture on his leg
which led to the filing of criminal prosecution against Bhura and Ram-
phool. As many as 11 witnesses were examined by the prosecution at the F
trial. Dr. Bansal, PW, conducted the postmortem examination on the dead
body of Bhura on 15th November, 1981 at 2.30 p.m. He noticed as many
as 11 injuries on the dead body. Out of these injuries eight were incised
wounds and others were injuries caused by blunt weapon. Out of the
incised wounds, there were some injuries on the legs and the left thumb G
and the remaining three injuries were on the. head of the deceased. Badri,
PW, was also examined and nine injuries were found on his person. There
was no fracture of any bone, though some of his injuries were described as
grievous injuries. At the trial, Dr. Bansal deposed that the injuries found
on the deceased were sufficient to cause death in the ordinary course of
nature. During cross-examinatio.n however Dr. Bansal admitted that apart H
702 SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A from injuries which were caused. by incised weapons there were other
injuries also on the body of the deceased and that "other injuries could also
have resulted in his death". The prosecution also relied upon recoveries of
some weapons alleged to have been effected on the basis of the statements
made by the appellants and others under Section 27 of the Evidence Act
on 22nd November, 1981 in support of its case.
B
The trial court found that there were two sets of accused in the case,
one set belonging to Kumhar caste while the other belonging to the Gujar
community. The appellants belong to the Gujar community. The trial court
found that the evidence of the eye witnesses who had implicated not only
C the appellants but also five others belonging to the Kumhar caste could not
be believed fully and consequently gave benefit of doubt to five accused
belonging to the Kumhar caste and acquitted them.

The trial court after appreciating the evidence, in the case of the
appellants, opined that there was no evidence on the record to show any
D pf.e-meditation on the part of the appellants. It was also concluded that the
prosecution had failed to establish as to who among the 10 accused, had
stuck the fatal blow resulting in the death of Bhura. The learned Sessions
Judge further observed that "it remains a mystry who the killers of Bhura
are". This observation was made in the context of as to who had caused
the fatal injuries, particularly when according to the prosecution case itself
E none of appellants was armed with a lathi and the deceased had suffered
a few blunt weapon injuries. We find that the prosecution has established
the complicity of the appellants with the crime but, the question, however,
is about the nature of offence committed by them.

Dealing with the actual assault, the learned Sessions Judge has
F observed:
"As Bhura and Ramphool had broken the leg of Ranjeeta and they
were going to 'Foota Dungaar' on bullock cart to fetch wood from
there, the Gujar accused must have intended to attack them by
obstrncting the cart and inflicting injuries to them in that situation."
G
(Emphasis ours)

The trial court went on to observe :

"As sufficient evidence is not available regarding the fact that all
H the five accused were involved in causing the death of the deceased
' .•

RAMKISHAN v. STATE 703

Bhura and that all the five accused had come out from one 'Pole', A
v-
/
it cannot be said that they had formed an unlawful assembly to kill
the deceased Bhura before the incident. But after the start of
"marpit" they (accused) inflicted grievous hurt (to) deceased
Bhura." <'··

So far as the recoveries are concerned the trial court rightly did not B
believe the same and observed :

"I have, therefore, no hesitation to conclude that all the ten accused
were arrested on 15.11.81 and that the evidence regarding their
arrest on 21.11.1981, and disclosure statements and recoveries of C
weapons on 22.11.1981 is all fabricated and false. The 1.0. seems
to have acted in this manner in his zeal to strengthen the prosecu-
tion case."

However, inspite of recording all the above findings, the trial court
still convicted the appellants for offences under Section 302 IPC and D
Section 148 IPC and High Court also confirmed their conviction and
sentence. In our opinion the approach of both the courts below on the
question of nature of offence was faulty and erroneous.
,,
On the basis of the findings of the learned trial court, as noticed E
above, it is quite obvious that the intention of the appellants could only
have been to cause injuries to the deceased by obstructing his bullock cart
and they did not share any common intention or object to cause the death
of the deceased. Indeed by causing injuries with an axe it could be said
that the appellants should have realised that the injuries were likely to
cause his death but that would only bring the case of the appellants under F
Section 304 Part II IPC and not one under Section 302 IPC.

In view of the findings recorded by the learned Sessions Judge and
the material on the record, we are unable to ascribe to the finding that the
appellants' intention was to cause death of Bhura deceased. The finding G
betrays the observation of the trial court as noticed above. The medical
evidence also does not support the ultimate finding recorded by the trial
court and upheld by the High Court. The offence in the established facts
and circumstances of the case in the case of the appellants would only fall
under Section 304 Part II IPC ·read with Section 149 IPC and not under
Section 302 IPC. Indeed no specific charge indicating the applicability of H
704 SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.

A Section 149 IPC was framed, but all the ingriedients of Section 149 IPC
were clearly indicated in the charge framed against the appellants and as
held by the Constitution Bench of this Court in Willie (William) Slaney v.
State of Madhya Pradesh, AIR {1956) SC 116, the omission to mention
Section 149 IPC specifically in the charge is only an irregularity and since
B no prejudice is shown to have been caused to the appellants by that
omission it cannot affect their conviction.

In our opinion this appeal deserves to succeed to the extent that the
offence committed by the appellant would not fall under Section 302 IPC.
We, therefore, set aside the conviction and sentence of the appellants for
C the offence under Section 302 IPC and instead convict them for an offence
under Section 302 Part II IPC read with Section 149 IPC and impose a
sentence of 5 years rigorous imprisonment upon each one of them. The
conviction and sentence of the appellants for the offence under Section 148
IPC is, however, maintained. The appellants are on bail. Their bail bonds
are cancelled. They shall be taken into custody to undergo remaining part
D of the sentence, if any.

R.P. Appeal allow<;d.