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TMI Blog2003 (1) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... nced the appellants to undergo five years rigorous imprisonment and to pay a fine of Rs. 2000/- for the offence punishable under Section 307 IPC, in default of payment of fine, six months simple imprisonment, which was upheld by the High Court. The conviction of the appellants under Section 148 IPC was, however, set aside. 2. The case of the prosecution is that on the night intervening 27th - 28th April, 1989 deceased Bhura and Ram Narain and Lal Chand, PW.1 were sleeping in their house in village Joshian Ki Dhani when the appellants herein alongwith five other persons entered the house at about 10 or 11 p.m. and brutally assaulted Bhura and Ram Narain as also Lal Chand, PW.1. Bhura and Ram Narain succumbed to their injuries but Lal Chand, PW.1. who suffered as many as 24 injuries survived the assault. Bhura was the father of Ram Narain and the father-in-law of Lal Chand, PW.1. The first information report Ex. P.1 was lodged by Bhenru, PW.5 another son of Bhura (deceased) alleging that on the night of occurrence Moti (appellant) alongwith Ramsi, Ratan, Lala, Chhagan, Jaggu and 2-3 other armed with axes, farsies and swords entered the house of Bhura and mounted a murderous assaul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 307/149 IPC. At the trial the informant Bhenru, PW.5 claiming to be an eye witness stated that at about 10 or 11 p.m. he was at the house of Ramjiwan where they were enjoying a smoke. He heard noise from the side of his house and, therefore, rushed to his house followed by his cousin Bhanwar. When he reached his house, he saw the appellants Moti and Chittar inflicting injuries to Lal Chand while the remaining accused namely, Chhagan, Jaggu, Ramsi, Ratan and Lala were surrounding him. The accused also caused injuries to his father Bhura and brother Ram Narain. He cried for help which attracted Ramjeewan, Hanuman, Kesra and Chittar to the place of occurrence, but by that time the accused had fled. The prosecution also examined Bhanwar Lal, PW.2, Chittar, PW.3, Ramjiwan, PW.4, Kesra, PW.6 and Hanuman, PW.7 to support the version given by the informant. Lal Chand (PW.1), an injured witness, was also examined to prove the case of the prosecution. Accepting the testimony of the witnesses the trial court found all the accused guilty of the offence under Sections 148 IPC. It convicted the appellants Moti and Chittarmal of the offences under Sections 302 and 307 IPC while finding the remain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ti assaulting his brother-in-law Ram Narain with a sword while Chittar was assaulting his father-in-law Bhura with a sword. When he got up he was also assaulted by both of them with swords and he suffered a large number of injuries on his head, hands and legs. At the trial, this witness no doubt implicated Chhagan, Jaggu, Ramsi, Ratan and Lal as well stating that they were with the appellants with axes and farsies and that all of them had caused injuries to him. This part of the evidence of Lal Chand has not been accepted by the High Court and for good reasons. Lal Chand in his statement before the police had not stated that the remaining accused, apart from the appellants, had come armed with the appellants and had assaulted him. His statement before the police was to the effect that when the appellants were going away from the place of occurrence he had seen Chhagan, Ramsi and Lala standing by the side of the wall near the babool tree. The other two accused were not even named by him. The babool tree was at a distance of about 60 yards from the place of occurrence. The High Court, therefore, rightly held that this part of his evidence was clearly an improvement and ought to be ig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d perused the evidence on record, we find ourselves in complete agreement with the High Court that on the testimony of Lal Chand, PW.1 the participation of the appellants in the commission of the crime must be held to have bee proved. Both the courts have concurrently found Lal Chand, PW. 1 to be reliable witness and even though he sought to make an improvement in the course of his deposition by naming the other accused persons, for that reason his entire evidence cannot be rejected. The High Court has rightly ignored that part of his evidence which appears to be in the nature of embellishment. 11. It was then urged by counsel for the appellants that the High Court was in error in convicting the appellant for the offence under Section 302 IPC in the absence of any specific charge framed under that section. It was contended, relying upon several decisions of this Court including Subran @ Subramanian and Ors. v. State of Kerala 1993 Cri LJ 1387 that a person charged of an offence under Section 302 read with Section 149 IPC cannot be convicted of the substantive offence under Section 302 IPC without a specific charge having been framed against him as envisaged by law. It was submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... five or more, do an act and intend to do it, both Sections 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought nor, therefore, to be permitted. But if it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal mater. Whether such recourse can be had or not must depend on the facts of each case. The non applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all. (See Barendra Kumar Ghosh v. King Emperor; Mannam Venkatadari and Ors. v. State of Andhra Pradesh: 1971 Cri LJ 1145 ; Nethala Pothuraju and Ors. v. State of Andhra Pradesh1991 Cri LJ 3133 and Ram Tahal and Ors. v. State of U.P. 1972 Cri LJ 227 ). 15. Applying these principles to the facts of this case, we find no difficulty in convicting the appellants under Section 302 read with Section 34 IPC, even though the charge framed was one under Section 302 read ..... X X X X Extracts X X X X X X X X Extracts X X X X
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