Rajasthan High Court - Jaipur
Nandi And Ors vs State on 13 October, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
[1] D.B. CRIMINAL APPEAL NO.77/2003
Nandi & Anr. Vs. State of Rajasthan
AGAINST THE JUDGMENT DATED 27.11.2002 PASSED BY ADDITIONAL SESSIONS JUDGE FAST TRACK COURT KISHANGARHBAS (ALWAR) IN SESSIONS CASE NO.220/2001.
[2] D.B. CRIMINAL APPEAL NO.744/2007
Dalvir Vs. State of Rajasthan
AGAINST THE JUDGMENT DATED 31.08.2006 PASSED BY ADDITIONAL DISTRICT & SESSIONS JUDGE FAST TRACK KISHANGARH DISTRICT ALWAR IN SESSIONS CASE NO.01/2005.
[3] D.B. CRIMINAL APPEAL NO.975/2009
Manjeet Vs. State of Rajasthan
AGAINST THE JUDGMENT DATED 01.05.2009 PASSED BY ADDITIONAL SESSIONS JUDGE, FAST TRACK, KISHANGARHBAS (ALWAR) IN SESSIONS CASE NO.01/2005 [57/1996].
DATE OF JUDGMENT : 13/10/2011
HON'BLE MR.JUSTICE NARENDRA KUMAR JAIN-I
HON'BLE MR.JUSTICE S.S.KOTHARI
Mr. Biri Singh Sinsinwar, Sr. Adv. with Mr. Harendra Singh Sinsinwar & Mr. Rajesh Choudhary, for accused-appellants
Mr. J.R. Bijarnia, P.P., for the State
***
REPORTABLE BY COURT (PER HON'BLE S.S. KOTHARI,J.):
Briefly stated, the facts leading to aforesaid appeals are that on 13.06.96 Ummed Singh, Constable No.1063 N.W., Police Station, Mangolpuri, Delhi submitted a written report Ext.P1 to S.H.O. Police Station Tapukada at the site of occurrence stating therein that he along with Om Prakash, Head Constable No.331 started on 12.06.96 at about 7.30 p.m. on Chetak Classic Scooter of Om Prakash, which was without any number being new, and reached the house of the in-laws of Om Prakash at Tapukara at about 12.15 in the night and stayed there. Next morning, at about 5.30 a.m., he along with Om Prakash on the scooter of Om Prakash and Devendra, brother-in-law of Om Prakash on his scooter left in search of absconding accused Chandra Mohan Pandit of FIR No.182/96 Police Station Mangolpuri, Delhi from Tapukara. On reaching villages Sarekalan and Sarekhurd, they made enquiries about him and on getting source information went to village Indore. On reaching there, they parked their scooters near a culvert in front of a school and went on foot in plain dress to the culvert near Chamaron ki Dhani. They found one sand dune towards east of the said culvert. Beyond that sand dune there was one thatched hut on the hillock which belonged to Ninder Singh alias Nandi, Rai Sikh. According to source information, Chandra Mohan was available in the said thatched hut. Om Prakash, Head Constable, told them in the culvert that he had a pistol with him and only this has to be ascertained whether Chandra Mohan is there or not. He told them that he would go alone to find out and asked them to stay back in the culvert itself. If Chandra Mohan is there he will inform the local police on his return and after a raid arrest him. Both of them stayed back. Om Prakash went towards the thatched hut of Nandi from northern side but after 4-5 minutes he was returning from the said thatched hut from the southern side and he was being followed by two persons, namely, Chandra Mohan Pandit and Manjeet S/o Nandi, who were known to him as he had met them earlier also. As soon as Om Prakash reached near the exotic oak (????????? ??????) in the culvert, Chandra Mohan fired on him from the back. Om Prakash ran but Manjeet came running in front of him and Chandra Mohan fired two bullets in the back of Om Prakash. Manjeet also fired one bullet on Om Prakash from the front. Om Prakash fell down. As they were without any arms and it is well known about Chandra Mohan that he fires immediately on seeing a policeman, they did not come forward and hid themselves in the bushes of exotic oak. After Om Prakash had fallen down, Chandra Mohan took away the 9 m.m. Govt. pistol from his belt, his wrist watch, gold ring from his finger, identity card and they ran away towards the hillock. Thereafter, they raised an alarm and on hearing the noise many persons assembled there. One boy was sent for informing Mehndi Police Chowki. They were asked by the villagers not to go there as the village of those persons comes in the way and there is a threat to their lives. After some time, he along with Devendra came to the school so that they could take the police directly to the place of occurrence. When they reached the school, one white Fiat car bearing number DVG 9913 in which three persons including Nandi were seated, came towards Sarekhurd, and went towards the place of occurrence. After a while the car went towards Sarekhurd. When the police did not reach the spot for about 15 minutes, then he alongwith Devendra left for Police Station Tapukara. When they reached the culvert near village Sarekhurd, one black Ambassador Car No.D-21-1329 driven by Amar Singh was approaching. Nandi and Ranjeet and two other persons were sitting in it. Amar Singh, Nandi and Ranjeet were sitting on the front seat of the car. They thought of following the car as they apprehended that the aforesaid persons may take away the dead body of Om Prakash in the car. They followed on their scooter which stopped after going a short distance. They cleaned its plug, etc. and after starting it again went towards the site of occurrence. Some Gujars were standing in the way with lathis near the school. They had collected stones at two places and stopped them and wanted to beat them. He told them that he is a policeman from Delhi and showed them his identity card. They informed him that his companion has sustained bullet injuries. He told them that he has been murdered. Then they permitted them to go. When they had gone about 100-150 yards ahead, the aforesaid Ambassador Car was coming from the side of culvert at high speed. They stopped the scooter near a tree and chased the car on their scooter. When the villagers wanted to stop the car, the driver of the car tried to run over the villagers but they broke the glasses of the car with lathis and stopped it. Nandi got down from the car and removed the stones from the way and tried to run with the car but the villagers beat him. He overpowered Amar Singh. Devendra took the keys of the car. Two persons alighted from the car and tried to run away. One person was coming on Om Prakash's scooter. He left it immediately and ran away. The villagers raised an alarm and told him that the person on the scooter was Ranjeet, son of Nandi. Out of the two persons who alighted from car and started running one was caught by the villagers. He gave his name as Dalbeer Singh alias Kali, resident of Seshan, District Bhraratpur. The other person who was successful in running away was Surjeet Singh, son of Sher Singh, resident of Seshan, District Bharatpur. With the key, he opened the boot (diggi) of the car from which blood was coming out, and found that the blood stained dead body of Om Prakash was lying in it. The villagers caught hold of Nandi, Amar Singh and Dalbeer Singh and detained them in the school. They sent one person on the tractor to give information to the police outpost. Later on, one Doctor came there on a scooter and he was also sent for giving information to the police outpost. After some time, the police reached the spot and the villagers mentioned that the boy who was sent for giving information earlier was threatened by the accused persons and had returned back without giving the information. They also informed the police that Om Prakash was fired at around 7.30 or 7.45 a.m.
2. The aforesaid written report was sent for registration of case through Udai Singh, Constable No.1184 on which FIR No.155/96 was registered. Om Prakash Tehlan, SHO Police Station Tapukara PW-20 inspected the place of occurrence on 13.06.96 and prepared site plan Ext.P2. The site plan Ext.P3 was prepared of the spot from where the dead body was recovered. Three pellets, plain earth, blood stained earth, Ambassador Car, belt and Chappals of Om Prakash were seized vide Ext.P5 to P7. Accused Nandi alias Ninder Singh, Dalbeer and Amar Singh were arrested vide Ext.P10 to P12. A Fiat Car was recovered on 13.06.96 vide memo Ext.P13 while the scooter, on which deceased Om Prakash went to the spot, was recovered vide Ext.P14. The postmortem of deceased Om Prakash was conducted and its report is Ext.P15. The blood stained clothes of accused Nandi, Amar Singh and Dalbeer were recovered by Memos Ext.P16 to P18. The recovered materials were deposited in the Malkhana Register of Police Station vide entry Ext.P23. The clothes being worn by deceased Om Prakash were recovered on 14.07.96 vide memo Ext.P24. The statements of witnesses were recorded under Section 161 Cr.P.C. and after investigation the police submitted a report under Section 173 Cr.P.C. against seven persons in the Court of Judicial Magistrate, Tijara. Amar Singh, Nandi alias Ninder Singh, Dalbeer Singh and Ranjeet Singh were present in the Court while report was submitted against Manjeet Singh, Chandra Mohan and Surjeet under Section 299 Cr.P.C. for offences under Sections 302 read with 120 B and 394 IPC. The learned Judicial Magistrate, Tijara committed the accused persons for trial to the learned Additional Sessions Judge, Kishangarhbas from where the case was transferred to the learned Additional Sessions Judge (Fast Track), Kishangarhbas on 10.08.01. Subsequently, accused Dalbeer Singh absented and proceedings for declaring him absconding were taken up and the Sessions Trial No.220/01, State Vs. Nandi & others proceeded against accused Nandi, Amar Singh and Ranjeet Singh only. Charges for offences under Section 302 read with 120B and 394 IPC were framed. The accused persons pleaded not guilty and claimed trial. The prosecution produced 22 witnesses and 24 documents Ext.P1 to P24 in support of its case. The statements of the accused persons under Section 313 Cr.P.C. were recorded and they did not produce any defence evidence.
3. After hearing the parties, the learned Additional Session Judge (Fast Track), Kishangarhbas vide his judgment dated 27.11.02 acquitted accused Ranjeet from offences under Sections 302 read with 120 B and 394 IPC. He also acquitted accused Nandi alias Ninder Singh and Amar Singh S/o Ninder Singh from offence under Section 394 IPC. However, he held accused Nandi alias Ninder Singh and Amar Singh guilty of offence under Section 302 read with 120 B IPC and sentenced each of them to life imprisonment and fine of Rs.5000/- In default of payment of fine, they were ordered to undergo rigorous imprisonment for five years. The accused appellants Nandi alias Ninder Singh and Amar Singh have preferred D.B. Criminal Appeal No.77/07, Nandi and another Vs. State, against the said judgment.
4. Subsequently, accused Dalbeer Singh was arrested and Sessions Case No.1/2005 State Vs. Nandi and others was registered. As charges for offences under Sections 302 read with 120 B and 394 IPC were already framed against him earlier on 17.02.97 to which he pleaded not guilty and claimed the trial, the prosecution produced 15 witnesses and documents to support its case. The prosecution made frantic attempts to produce those witnesses who were produced in evidence in the earlier case, but they were not traceable. The learned Additional Sessions Judge read the evidence of those witnesses and documents proved in earlier case against accused Dalbeer under the provisions of Section 33 Indian Evidence Act. The statement of accused Dalbeer was recorded under Section 313 Cr.P.C. in which he stated that the witnesses have given false evidence but he did not adduce any defence evidence. After hearing the parties, the learned Additional Sessions Judge (Fast Track) Kishangarhbas convicted accused Dalbeer Singh for offence under Section 302 read with 120 IPC and sentenced him to life imprisonment and a fine of Rs.5000/- by judgment dated 31.08.06. In default of payment of fine, he was ordered to undergo rigorous imprisonment for five years. However, he was acquitted of offence under Section 394 IPC. The accused appellant Dalbeer Singh has filed D.B. Cr. Appeal No.744/07 Dalbeer Vs. State against the said judgment.
5. Subsequently, accused Manjeet Singh was arrested and a supplementary charge-sheet was filed against him on 27.04.07. The learned Judicial Magistrate, Tijara committed him for trial to the court of Additional Sessions Judge No.1 Kishangarhbas. Accused Surjeet Singh was arrested and supplementary charge-sheet was filed against him on 13.08.07. The learned Judicial Magistrate, Tijara committed him for trial to the court of Additional Sessions Judge No.2 Kishangarhbas. This court sent the cases against them for trial to the court of Additional Sessions Judge, Fast Track, Kishangarhbas who consolidated Sessions Case Nos.35/07 and 44/07 by his order dated 04.02.08 and framed charges for offences under Sections 302 read with 120 B and 394 IPC against them to which they pleaded not guilty and claimed trial. On the request of accused Manjeet Singh under Section 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, the Additional Sessions Judge, Fast Track, Kishangarhbas conducted an enquiry in which documents were produced and witnesses were also examined. On conclusion of the enquiry, by a detailed order dated 25.08.08 the application of the accused dated 25.02.08 was rejected. The prosecution produced 15 witnesses and documents to support its case. The prosecution made frantic attempts to produce other witnesses, who were produced in evidence in the earlier case, but they were not traceable. The statements of the accused persons were recorded under Section 313 Cr.P.C. in which they stated that the witnesses have given false evidence but they did not adduce any defence evidence. After hearing the parties, the learned Additional Sessions Judge (Fast Track), Kishangarhbas acquitted accused Surjeet Singh from offences under Section 302 read with 120 B and 394 IPC by judgment dated 01.05.09. He also acquitted accused Manjeet Singh of offence under Section 394 IPC. However, he held accused Manjeet Singh guilty of offence under Section 302 read with 120B IPC and sentenced him to life imprisonment and a fine of Rs.10,000/-. In default of payment of fine, further simple imprisonment for one year was awarded. The accused-appellant Manjeet Singh has preferred D.B. Criminal Appeal No.975/09, Manjeet Singh Vs. State, against the said judgment.
6. Although the aforesaid three appeals arise out of three different judgments dated 27.11.02, 31.08.06 and 01.05.09 passed in three different Sessions Cases by three different officers, yet they relate to the same incident which took place on 13.06.96. In order to avoid chances of any contradiction and wastage of Courts precious time in repeating the facts and evidence, they are being decided by this common judgment. It also deserves to be mentioned that the appeal filed by appellant Dalbeer was time barred by 8 days but after consideration of facts and circumstances mentioned in the application under Section 5 Limitation Act, this court condoned the delay by order dated 14.03.2007.
7. We have heard the learned Senior Counsel for the appellants and Public Prosecutor at length. They also took us through the evidence on record which we have carefully perused.
8. The Senior Counsel for the appellants has contended that there is no evidence to connect the appellants with offence under Section 120B IPC and convict them for the offence under 302 IPC with its aid. He has laid emphasis on the facts that there is nothing on record to show in which case Chandra Mohan accused was absconding and Om Prakash had his warrant of arrest which was to be executed. Moreover, the local police was not taken into confidence before trying to arrest Om Prakash. Thus, the genesis of the prosecution story is missing and the appellants cannot be held liable for any offence. The learned Public Prosecutor has submitted that there is sufficient material on record to hold that the appellants have conspired to murder Om Prakash and the appellants are not entitled to any benefit merely because the details of the case pending against Chandra Mohan have not been placed on record. He has further contended that the appellants have not explained their position in their statements under Section 313 Cr.P.C. and produced defence evidence.
9. We have carefully considered the rival submissions. Before proceeding to examine the evidence available on record it will be appropriate to examine the legal position regarding Section 120B IPC.
The basic ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. The Honble Apex Court has observed in Shivnarayan Laxminarayan Joshi V. State of Maharashtra (1980) 2 S.C.C. 465 that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if such inference is possible.
10. In Mohd. Usman Mohammad Hussain Maniyar v. State of Maharshtra (1981) 2 S.C.C. 443, it was observed that for an offence under Section 120B IPC, the prosecution need not necessarily prove that the perpetrators expressly agree to do and/or cause to be done the illegal act, the agreement may be proved by necessary implication.
11. In Kher Singh V. State (Delhi Admn.) (1988) 3 S.C.C. 609, the gist of the offence of the conspiracy has been brought out succinctly in the following words:
271 .The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough.
12. Again in State of Maharashtra V. Som Nath Thapa (1996) 4 S.C.C. 659 a three-Judge Bench of Honble Court held that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use.
13. More recently, in State (NCT of Delhi) V. Navjot Sandhu (2005) 11 S.C.C. 600, making exhaustive reference to several decisions on the point, including State V. Nalini Honble Mr. Justice Venkatarama Reddi of the Honble Apex Court, as he then was, observed as follows:
97. Mostly, conspiracies are proved by circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstance and the conduct of the accused. The well-known rule governing circumstantial evidence is that each and every incriminating circumstances must be clearly established by reliable evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible.
14. It has been held by the Honble Apex Court in Tanviben Pankajkumar Divetia Vs. State of Gujrat (1997) 7 SCC 156 that the Court should not allow suspicion to take the place of legal proof.
15. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal agreement.
16. Now the stage is set for examining the prosecution evidence. From the facts and evidence produced in the case there is a clear distinction between the case of appellant Manjeet Singh on the one hand, and the appellants Dalbeer Singh, Amar Singh and Nandi on the other hand. In these circumstances, we proceed to examine the case of appellant Manjeet Singh first. Ummed Singh PW-1 has stated that when Om Prakash was returning from the thatched hut on the hillock from its southern side two persons namely, Chandra Mohan and Manjeet Singh S/o Nandi, were following him. Chandra Mohan fired on Om Prakash and when he tried to rush away Manjeet Singh came in front of him and obstructed his path. Thereafter, Om Prakash fired twice on the back of Chandra Mohan. Manjeet Singh also fired one shot from the front side of Om Prakash after which Om Prakash fell down. Devendra PW-2 has supported him. It deserves to be mentioned that deceased Om Prakash went in search of Chandra Mohan Pandit along with Ummed Singh and Devendra. Thus, only these three persons were present at the place of occurrence at the relevant time. The learned Trial Court in its judgment dated 01.05.09 has critically examined the evidence of the aforesaid two witnesses who were cross-examined on behalf of the appellants Manjeet Singh and Surjeet at length. The learned Trial Court has observed that there is nothing on record to disbelieve the statements of the aforesaid two witnesses. It has also critically examined the medical evidence including the statement of Dr. Rajendra Agarwal who conducted the postmortem of deceased Om Prakash. From the statement of the doctor and the postmortem report Ext.P15 it is found that the deceased had four gun shot wounds. Three wounds were on the back of the body while one wound was in the side of the body. The learned Trial Court after considering the entire prosecution evidence came to the conclusion that even though it is not fully proved that accused Manjeet Singh fired on deceased Om Prakash but from the evidence and facts of the case it is fully proved that he accompanied accused Chandra Mohan from his thatched hut on the hillock and fully participated in the crime as accused Manjeet Singh came with accused Chandra Mohan and when deceased Om Prakash tried to save himself by running, he came in front of him and prevented him from running away. Thereafter, accused Chandra Mohan fired twice on the back of the deceased Om Prakash. We see no reason to disagree with the above finding of the learned Trial Court and fully agree with it.
17. Apart from the above evidence, the facts of the case show that from the prosecution evidence certain circumstances have prominently come on record. They are that the deceased Om Prakash alongwith Ummed Singh PW-1 came from Delhi in search of accused Chandra Mohan and stayed in the house of the in-laws of Om Prakash on 20.06.96. Secondly, thereafter deceased Om Prakash, Ummed Singh PW-1 and Devendra PW-2, brother-in-law of deceased Om Prakash, left Tapukara and reached the hillock on which the thatched hut of accused Nandi is situated. They reached there after making enquiries about the availability of accused Chandra Mohan in villages Sarekalan and Sarekhurd. Thirdly, on reaching the culvert they saw a thatched hut on the hillock of a sand dune which belonged to accused Nandi where Chandra Mohan was staying. Fourthly, it has come in evidence of Ummed Singh PW-1 and Devendra PW-2 that the deceased Om Prakash asked them to stay back in the culvert saying that as he had a pistol with him he would go alone and find out about the availability of Chandra Mohan. If Chandra Mohan is available there he will return back and they will go to bring the local police with them and arrest him. Acting on that scheme, Om Prakash went alone to that thatched hut for finding out whether Chandra Mohan was staying there or not. When Om Prakash was returning back from the thatched hut belonging to Nandi accused Chandra Mohan and Manjeet Singh followed him and murdered him by firing. Fifthly, during the investigation, the police recovered empty cartridges from the place of occurrence and the dead body of Om Prakash. The police also recovered the clothes of deceased Om Prakash and the accused persons and samples of earth and blood stained earth. It also got postmortem of Om Prakash conducted. Sixthly, an attempt was made by some of the accused persons to take away the dead body of deceased Om Prakash by keeping it in the boot (diggi) of an Ambassador Car with the object of concealing it in order to destroy the evidence of the crime. Seventhly, the appellant Manjeet Singh accompanied accused Chandra Mohan from the thatched hut in which he was staying, and helped him in executing his plan of murdering Om Prakash, Head Constable. The aforesaid circumstances clearly point out the complicity of the appellant Manjeet Singh with accused Chandra Mohan. The law is well settled that the witnesses may lie but the circumstances do not lie. Moreover, from the evidence of Ummed Singh PW-1 and Devendra PW-2 it is found that deceased Om Prakash was last seen alive alongwith the appellants Manjeet Singh and Om Prakash. This circumstance is also a pointer to the guilt of the appellant Manjeet Singh.
18. The learned Senior Counsel for the appellant Manjeet Singh has contended that the appellant was a juvenile at the time of occurrence and his trial with accused Surjeet being in violation of the provisions of the Juvenile Justice Act, 2000 is vitiated and accordingly his conviction and sentence is liable to be set aside. The learned Public Prosecutor has submitted that the appellant was not juvenile at the time of occurrence and this question has already been decided by the learned Trial Court. Therefore, his trial, conviction and sentence are in accordance with provisions of law.
19. We have given our thoughtful consideration to the above submission and perused the record of the learned Trial Court carefully. An application under Rule 12, Juvenile Justice (Care and Custody of Children) Rules, 2007 was filed on behalf of the appellant Manjeet Singh before the learned Trial Court on which enquiry was conducted in Criminal Misc. Case No.14/08. During the enquiry the statements of Dr. Ravi Mathur, Dr. Battu Singh, Ram Singh, Har Lal Verma and Ninder Singh, the father of the appellant, were recorded and documents including Medical Report, X-ray Plates, X-ray Report, School Leaving Certificate etc. were produced. After elaborate enquiry and hearing, the learned Trial Court by a detailed order of seven pages dated 25.08.08 held that the age of appellant Manjeet Singh was not below 18 years on the date of occurrence and he was not a juvenile. Accordingly, the application dated 25.02.08 was rejected. Admittedly, the aforesaid order was not challenged on behalf of the appellant Manjeet Singh in any proceeding and has become final. In the circumstances we do not see any reason to interfere in it and take a different view.
20. In view of the aforesaid evidence - direct, medical and circumstantial - it is fully established that the appellant Manjeet Singh had entered into criminal conspiracy with accused Chandra Mohan to murder Om Prakash. Hence, the offence under Section 302 read with 120 B IPC is fully proved against him and the finding of the learned Trial Court to that effect does not require any interference.
21. The learned Senior Counsel for the appellants Nandi, Amar Singh and Dalbeer Singh has contended that from the prosecution evidence it is not proved that they committed any act leading to the death of deceased Om Prakash. Thus, their conviction and sentence for offence under Section 302 read with 120 B IPC is illegal and liable to be set aside. He has further submitted that from the evidence on record an offence under Section 201 IPC at the most can be made out against them as they are alleged to have tried to shift the dead body of deceased Om Prakash. Hence, they can be convicted for an offence under Section 201 IPC at the most. He has placed reliance on the cases of Dalbir Singh Vs. State of U.P. J.T. 2004 (4) S.C. 455 and Suman Sood alias Kamal Jeet Kaur Vs. State of Rajasthan AIR 2007 Supreme Court 2774.
22. The learned Public Prosecutor has, on the other hand, contended that offence under Section 302 IPC read with 120B IPC is fully proved against the aforesaid appellants. He has also submitted that offence under Section 201 IPC is not a minor offence of Section 302 IPC and as such the provisions of Section 222 Cr.P.C. are not attracted. He has also contended that as charge under Section 201 IPC was not framed against the appellants they cannot be convicted for that offence. He has placed reliance on the case of Sangarabonia Sreenu Vs. State of A.P. 1997 (5) SCC 348.
23. We have carefully considered the above submissions. Before examining the evidence on record, we consider it proper to examine the legal position. In the case of Dalbir Singh (Supra) Bench of three Honble Judges after examining earlier judgments on the point held that the case of Sangarabonia Sreenu (Supra) was not correctly decided and if offence under Section 302 IPC is not proved, conviction for offence under Section 306 IPC can safely be recorded and the same would not result in failure of justice in any manner. In holding so Their Lordships were impressed by the principles of law laid down by the Constitution Bench in the case of Willie Slaney Vs. State of Madhya Pradesh AIR 1956 Supreme Court 116 and Gurbachan Singh Vs. State of Punjab AIR 1957 S.C. 623. The Honble Court in view of provisions of Sections 222 and 464 Cr.P.C. held that it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. It has been held in Nagan Vs. Emperor 1937 Mad. WN 544 that if the accused is charged with offence of murder but the evidence discloses an offence under Section 201 IPC he can be convicted of the offence without any new charge being framed. A perusal of the case of Kora Ghasi Vs. State of Orissa AIR 1983 Supreme Court 360 shows that charge for offence under Section 302 IPC was framed but the evidence for murder against the accused was found slender and he was convicted for offence under Section 201 IPC From the above position of law, it clearly emerges that a person can be convicted for offence under Section 201 IPC if offence under Section 302 IPC is not proved provided the Court is of opinion that no prejudice will be caused to the accused.
24. Keeping the aforesaid legal position in mind, we proceed to examine the evidence in this case. It deserves to be mentioned that even in written report Ext.P1 there is no allegation that the appellants Nandi, Amar Singh and Dalbeer Singh participated in the actual crime and caused injuries to deceased Om Prakash. The witnesses produced by the prosecution have also not assigned any overt act to them so far as causing of injuries to deceased Om Prakash is concerned. Hence, the prosecution has failed to prove offence under Section 302 read with 120B IPC against them and they are entitled to benefit of doubt. However, it is alleged in the written report Ext.P1 that the aforesaid appellants placed the dead body of Om Prakash in the boot (diggi) of the Ambassador Car and tried to shift it from the place of occurrence. In this connection statements of Ummed Singh PW-1 and Devendra PW-7 (PW-13) are very material. They are eye witnesses of the entire incident and have deposed that the aforesaid appellants were taking away the dead body of Om Prakash in the boot (diggi) of the Ambassador Car. Rajendra PW-10, Sahiram PW-11 (PW-7), Rambeer PW-12 (PW-6) and Baljeet PW-15 have stated that the aforesaid appellants were sitting in an Ambassador Car and tried to shift the dead body of Om Prakash by concealing and keeping it in the boot (diggi) of the car. They have also stated that they resisted their attempt by stopping the car by blocking the road with stones. They have also deposed that they caught hold of the aforesaid persons and detained them in the school till the police reached there. Om Prakash Tahlan PW-20 has deposed that he arrested the aforesaid three appellants vide arrest memos Ext.P10 to P12 and recovered their blood stained clothes vide recovery memos Ext.P16 to P18. He has also deposed in cross-examination that the dead body was found in the boot (diggi) of the car. All the aforesaid witnesses were cross-examined at length on behalf of the appellants but nothing could come on record to discard their evidence. Thus, it is fully established that the aforesaid appellants tried to shift the dead body of Om Prakash from the place of occurrence. The object of shifting the dead body was to screen the culprits from the offence and to destroy the evidence of the crime. This object can safely be inferred from the facts that accused Chandra Mohan Pandit was staying in the thatched hut belonging to Nandi. Thus, offence under Section 201 IPC is fully proved against the aforesaid appellants. It also deserves to be mentioned here that a perusal of the statements of the aforesaid appellants, recorded under Section 313 Cr.P.C., show that questions were put to them regarding their collusion in the shifting of the dead body in the car. Hence, they had full notice about the facts of the offence under Section 201 IPC and there is nothing on record to hold that they will be prejudiced if they are convicted for offence under Section 201 IPC without specific charge having been framed for that offence against them.
25. For the aforesaid facts and reasons Criminal Appeal No.975/09 filed by Manjeet Singh, appellant is dismissed and his conviction and sentence for the offence under Section 302 read with 120B IPC, as awarded by the Trial Court, is maintained. Criminal Appeal Nos.77/03 and 744/07 filed by appellants Nandi, Amar Singh and Dalbeer Singh are partly allowed and their conviction and sentence for offence under Section 302 read with 120B IPC is set aside and by giving benefit of doubt they are acquitted from that offence. However, they are held guilty of offence under Section 201 IPC and sentenced to five years' rigorous imprisonment and fine of Rs.1,000/-. In default of payment of fine, they shall undergo simple imprisonment for three months. The appellants Nandi S/o Shri Sarjasingh Rai Sikh, Amar Singh S/o Shri Nandi and Dalbeer Singh S/o Shri Bishan Singh have already completed their sentence of imprisonment, therefore, they are directed to be set at liberty forthwith, if they are not required in any other case.
[S.S.KOTHARI],J. [NARENDRA KUMAR JAIN-I],J. FRBOHRA77DBCRLAPPEAL2003.doc