Supreme Court of India
MURLI AND ANR.versusSTATE OF RAJASTHAN
- Citation
- 2009 INSC 1052
- Decided
- 18 August 2009
- Disposal
- Dismissed
- Bench
- V S SIRPURKAR
Holding
The appeal is dismissed; the convictions stand under Section 302 read with Section 34 IPC, and the witness testimonies are admissible despite delay and criminal antecedents.
Summary
The Supreme Court examined the murder of Patwari Virendra Singh, for which appellants Murli and Heera were convicted under Section 302 IPC read with Section 149. The prosecution’s case rested on two eye‑witnesses, Lakendra Singh (PW‑1) and Sadri Lal (PW‑2), whose statements were recorded after considerable delay and who had criminal antecedents. The Court held that the delay and the witnesses’ past did not, by themselves, render their testimony inadmissible, and that the identification‑parade errors noted in the Panchanama could not be treated as substantive evidence. It further clarified that the appropriate charge is under Section 302 read with Section 34 IPC, not Section 149, as the appellants acted in concert with a common object. Consequently, the appeal was dismissed and the convictions upheld.
Issues considered
- The admissibility of delayed statements under Section 161 CrPC.
- The impact of a witness's criminal background on credibility.
- Whether errors in the identification‑parade (Panchanama) constitute substantive evidence.
- Whether the conviction should be under Section 149 IPC or Section 34 IPC.
- The sufficiency of evidence to sustain a conviction under Section 302 IPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 161
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 304(II), s. 323, s. 325, s. 326, s. 34
Subjects
murderIPC 302Section 149Section 34witness credibilitydelayed statementsidentification paradePanchanamacriminal backgroundconviction upheld
Judgment
[2009] 13 (ADDL.) S.C.R. 378
A MURLI AND ANR. .,.
v.
STATE OF RAJASTHAN
(Criminal Appeal No. 1011 of 2005)
AUGUST 18, 2009
B ;
r
[V.S. SIRPURKAR AND CYRIAC JOSEPH, JJ.]
Penal Code, 1860:
s.302 r.w. s.149 - Conviction under- Accused persons
""
c
came together on the spot, gave abuses to the deceased -
A1 assaulted deceased with lathi on his head and A2 gave
blows with sharp edged weapon - Conviction of A 1 and A2
based on evidence of eye witnesses - On appeal, held:
Evidence of PW1 remained unshaken - Insignificant
D contradictions in the statement made by this witness which )..
was recorded after 11 years, not fatal - The fact that PW2 had
criminal record itself not sufficient to throw his evidence - His
statement was recorded late however, no explanation was
asked nor there was any cross examination of investigating
E officer on this issue - No infinnity in the order of conviction.
1--
Code of Criminal Procedure, 1973:
..
Contents of the Panchanama are not the substantive '!--
evidence - Substantive evidence is. what has been stated by
F
the Panchas or the concerned person in the witness box.
Previous statement of the witness, even if admissible in t-
evidence, cannot be used against the witness, unless he is
confronted with the same and his attention is invited.
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal ~
Nos. 1011 of 2005. ,.
From the Judgment & Order dated 05.05.2005 of the High
H 378
,,
MURLI AND ANR. v. STATE OF RAJASTHAN 379
Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.S. A
Criminal Appeal No. 252 of 2000.
U.U. Lalit, K.K. Tyagi, lftekhar Ahmad, Prasenjit Keswani,
N. Annapoorani for the Appellants.
Milind Kumar, Sudhir Pal Singh for the Respondent. B
The Judgment of the Court was delivered by
V.S. SIRPURKAR, J. 1. This Criminal Appeal is at the
instance of two accused persons, who stand convicted of the c
offences under Section 302 by Trial Court and the High Court.
As many as seven persons were tried for the offences under
Sections 147, 148 & Sections 325 and 323 read with Section
149 of the Indian Penal Code (hereinafter referred to as "IPC"
• I
for short) on the allegation that they formed an unlawful assembly D
and in pursuance of the common object thereof, committed
murder of Virendera Singh (the deceased), who was serving
as a Patwari. In that process, one Lakendra Singh, his brother,
was also injured.
2. Initially, the Sessions Judge convicted accused Murli (A- E
1), Heera (A-2), Bheru (A-3), Mohan Lal (A-4), Chhittar (A-5),
Kanwar Lal (A-6) and Bhanwar Lal (A-7) for the offences for
which they were charged. Three separate appeals came to be
filed on behalf of the accused, they being D.S. Criminal Appeal
No. 248 of 2000, D.B. Criminal Appeal No. 252 of 2000 and F
D.B. Criminal Appeal No. 309 of 2000. The High Court,
ultimately, allowed the D.S. Criminal Appeal No. 248 of 2000
and D.B. Criminal Appeal No. 309 of 2000. The High Court
dismissed the D.B. Criminal Appeal No. 252 of 2000 filed by
. Murli (A-1) and Heera (A-2), but allowed the same insofar as G
Chhittar (A-3) was concerned. We are, therefore, concerned only
with two accused persons, i.e., Murli (A-1) and Heera (A-2), who
are the appellants in the present Appeal, the rest of the accused
having been acquitted by the High Court.
H
380 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A 3. The prosecution story, in short, is as under. J.-
The incident is dated 14.9.1987. Lakendra Singh (PW-1)
filed a report in the Police Station that while his elder brother
Virendra and one Sadri Dhakar were standing at the Paan
B Shop of Latur Mali at Bundi Road, Heera S/o Hardev Gujjar,
who was armed with Gandasa, Murli S/o Sunder Brahmin, who
was anned with a Lathi and one other person, who was also
armed with a Lathi came near them at Paan Shop. They abused . ,.,,,
his brother Virendra Singh, whereupon he (Lakendra Singh)
and Virendra Singh asked them not to mishbehave. Just then,
c 6-7 persons armed with Lathies, Farsa, Gandasi and knifes
cornered Virendra Singh in a lane. Murli gave a lathi blow on
his head and then all of them started shouting, expressing their
intention to kill him and started assaulting Virendra Singh with
various weapons. Virendra Singh fell down there itself. Then I •
D also, he was assaulted by Murli and one other person, though
~
Sadri Dhakar tried to stop them; wh!ch was futile. After the
incident, all of them boarded one tractor of red colour and went
away towards Kota Road, shouting 'Jai'. When PW-1 Lakendra
Singh saw Virendra Singh, he had already died and his head
E and face were injured. He had seen those persons in the light
arid he could identify them. On this basis, the offence was
registered at the Police Station. After th~ usual investigation,
all accused persons excepting Bhanwar Lal (A-7) were :.
arrested and the chargesheet came to be filed against the 1--
F arrested accused persons, wherein Bhanwar Lal (A-7) was
shown as an absconder. The investigation was kept pending
against him. The matter was committed to Sessions Court,
Bundi. When the trial commenced before the Sessions Judge,
Bhanwar Lal (A-7) was also arrested and a chargesheet came
G to be filed against him after about 3 years of the first
chargesheet on 2.1.1990. His case was also committed to the
same Court. He was also charged for the same offences, with
which the earlier accused persons were charged on 22.6.1988.
The charge against Bhanwar Lal (A-7) was framed on 8.2.1990.
H All the accused abjured their guilt. The witnesses, who were
MURLI AND ANR. v. STATE OF RAJASTHAN 381
[V.S. SIRPURKAR, J.]
earlier examined like Lokendra Singh (PW-1), Sadri Lal (PW- A
2) were recalled. The evidence of all the witnesses, whose
evidence was recorded earlier, was then recorded again.
Ultimately, the Sessions Judge found all the accused persons
guilty. The prosecution mainly relied on the evidence of
Lakendra Singh (PW-1) and Sadri Lal (PW-2). During the S
investigation, the Test Identification Parade was also held since
barring the two appellants, no other name was mentioned in
the First Information Report. The evidence of the Magistrate was
also recorded.
4. Shri U.U. Lalit, Learned Senior Counsel appearing on
c
behalf of the appellants, pointed out that the prosecution has
not been able to establish its case fully and as many as five
accused persons have been acquitted by the High Court. He,
j I
therefore, pointed out that the same witnesses, whose evidence
was disbelieved by the Trial Court could not have been believed D
~
by the Appellate Court, as the sub-stratum of the prosecution
story itself was disbelieved. The Learned Senior counsel
secondly pointed out that barring Lakendra Singh (PW-1), the
other witness Sadri Lal (PW-2) cannot be believed, as his
submission was recorded after considerable delay of over 25 E
days. The explanation given for this delay is also not
satisfactory. It is pointed out that the name of Sadri Lal (PW-2)
~
did not find mention in the First Information Report and,
--f therefore, he is clearly a set up witness. Insofar as Lakendra
Singh (PW-1) is concerned, the Learned Senior Counsel F
pointed out that his evidence was also not liable to be
accepted, as was done by the High Court, particularly, when
his evidence was disbelieved in respect of the other accused
persons. The Learned Senior Counsel further pointed out that
in the Test Identification Parade, Lakendra Singh, who had G
earlier named Heera as one of the assailants, had identified
+-- accused Sheru and called him as 'Heera'. The Learned Senior
Counsel tried to take advantage of the situation and contended
that when he' had named Heera, he might have seen only
accused Sheru, whom he had identified as Heera. The H
382 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A Learned Senior Counsel also relied on the record of the
Identification Parade to point out that the error committed by ·
Lakendra Singh in calling Bheru as Heera, was fatal to the case
against accused Heera and hence Heera was liable to be
acquitted. Insofar as appellant Murli is concerned, the Learned
B Senior Counsel poi~ted out that as per the prosecution
evidence, he had 'only given one stick blow rn the head of the
deceased and, therefore, he could not have had an intention to
commit murder of the deceased and his conviction should be
altered from under Section 302 IPC to Section 304 Part 11 IPC
c or even under Section 326 IPC.
5. As against this, Shri Milind Kumar, the Learned Counsel
appearing on behalf of the State supported the conviction and
pointed out that though the evidence of Badri Lal (PW-2) was
disbelieved by the High Court, this Court still could go into that
D evidence and if the evidence of these two witnesses (PW-1 and
PW-2) is read together, the prosecution case against these two
·appellants stood fully established. The Learned Counsel
pointed out that both these witnesses have stood the test of
searching Cross Examination and the Appellate Court had
E disbelieved the evidence of Badri Lal (PW-2) only on the ground
that firstly, his statement was recorded late an·d secondly, that
Badri .Lal (PW-2) was of dubious character, facing number of
prosecutions. The Learned Counsel pointed out that merely
because of these two reasons, the evidence could not have
F / been thrown, as the Investigating Officer was not even cross-
examined and was not given any opportunity to explain as to
why Sadri Lal's Statement under Section 161 of the Code of
Criminal, Procedure (hereinafter called "Cr.P.C." for short) was
recorded late. According to the Learned Counsel, since Badri
G Lal was afraid to go to the Police because of his dubious past
and had clearly deposed the same in his evidence, he should
have been believed by the Appellate Court and his evidence
should be accepted by us, since he was honest to that extent
in owning up the pending prosecutions against him. As regards
H the error committed by PW-1 Lakendra Singh, the Learned
MURLI AND ANR. v. STATE OF RAJASTHAN 383
[V.S. SIRPURKAR, J.]
Counsel pointed out that there was no substantive evidence A
--4 on record to the effect that Lakendra Singh has committed the
mistake. The Learned Counsel urged that merely because it
was, at one place, so recorded in the Test Identification
Panchanama, that by itself, could not be viewed as substantive
evidence, unless the Magistrate recording the same, had B
referred to that fact in his substantive evidence before the Court..
It is on this basis that we have to consider as to whether the
High Court was right in convicting the appellants herein.
y
6. There can be no dispute that the witnesses, as well as,
the accused persons have criminal background. It has come
c
in the evidence of Lakendra Singh (PW-1) that there were. two
false cases going on against him and his brother in Kota,
instituted by Nayapura Police Station. He also disowned any
# knowledge regarding the prosecution of his brother for offences
under Section 365 and 376 IPC. He also refused to admit that D
~ as many as seven cases were continuing againsfhis brother,
instituted by the Police Station Pattan. It has also come in the
evidence that accused persons were no better. Same thing is
about Sadri Lal (PW-2). He himself admitted that he was facing
some charges and, therefore, he did not depose about the E
incident because· he was afraid of Police. Therefore, the
criminal background, in our opinion, would not be of much
consequence, though while appreciating their evidence, that
• fact has to be borne in mind. At the same time, it has to be
~
borne in mind that the two witnesses claimed to be eye- F
witnesses and Lakendra Singh (PW-1) had lost his brother. He
could not be expected to let off the persons, who were, in fact,
guilty of assault on his brother. In his evidence, he has referred
to the strange relations between the accused and his brother.
In his Examination-in-Chief, he has specifically attributed the G
specific act to appellants Murli and Heera. Their names very
clearly appearing in the First Information Report, which was
immediately lodged. He has also referred in the First
Information Report, to the father's name of both these persons,
as well as, Caste and the towns that they belong to. Lakendra H
384 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A Singh (PW-1) was also injured during the incident and his
injuries have been established on record. In his Examination-
in-Chief, he has specifically stated that Badri Lal (PW-2), who
was present, was shouting. It was in his presence that the
inquest report, as well as, the spot panchanama were
B prepared. He gives a specific explanation as to why he has not
noted the number of tractor, in which the accused had fled. In
his cross examination, it has come that he knew Heera and
Murli even before the incident. He was candid to admit in his
cross examination that except accused Heera and Murli, he
c could not say as to which weapons were handled by each
accused. Thus, this witness had clearly identified Heera in the
Court and had also named the accused Heera with reference
to his father and the caste in the First Information Report.
Considering that this witness had given an immediate report
within half an hour of the incident and that he has specifically
D
told the names of Heera and Murli with reference to their fathers
)c
and their castes, there was hardly anything to disbelieve that
he did not know Heera and Murli before the incident.
7. We have seen the cross examination very closely.
E However, we do not see anything worth in the same, at least
relating to the main incident. The eviaence of this witness was
recorded more than once. Firstly, it was on 1.3. 1989, which was
continued on 16.3.1989, when Bhanwar Lal (A-7) had not been ,..
arrested. It was again recorded after ten years, on 26.9.1998, -~
F after the arrest of Bhanwar Lal (A-7). Even then, substantive
amount of evidence was the same. He identified all the
accused in the Court. His story also remained more or less the
same. His cross examination started on 24.3.1999, where the
First part of cross examination was regarding the criminal cases
G that he was facing including one murder case, which was still
continuing against him. In his cross examination, which took
·place after about 11 or 12 years, he was specifically asked on ~
the subject of Identification Parade. He had definitely committed
some errors by saying that Heera and Murli were also put in
for the Identification Parade that day, which was not a fact. The
H
J
MURLI AND ANR. v. STATE OF RAJASTHAN 385
[V.S. SIRPURKAR, J.]
concerned Magistrate has deposed that they were not put for A
Identification Parade, as their identity was already established
in the First Information Report. All that the witness was asked
was about Exhibit P-28, the Identification Panchanama and he
admitted that whatever was written in Panchanama, was
correct. From this, the Learned Senior Counsel Shri Lalit urged S
that a sufficient opportunity was given to this witness. We will
go into that aspect a little later. However, suffice to say that
insofar as the basic incident is concerned, his evidence has
~
remained unshaken as far as the present two appellants are
concerned. In fact, in his re-appearance, after 11 years, there c
is hardly any cross examination on the main incident. He was
mostly cross examined on the Panchanama .and some
insignificant contradictions were taken out in his evidence. The
other contradictions and omissions were as regards the
j accused Sheru (A-3), with whose case, we are not concerned D
here. Therefore, the evidence of this witness has remained
.ll.
unshaken in respect of the actual incident.
8. Same is the case of Sadri Lal (PW-2). We are quite
mindful of the fact that the statement of Sadri Lal (PW-2) was
recorded extremely late, i.e., after about 25 days of the incident. E
Strangely'enough, no explanation thereof was asked and there·
is no cross examination of the Investigating Officer on this
issue. This is apart from the fact that Sadri Lal (PW-2) very
"~' specifically spoke about his criminal past and explained that
since he was afraid of the Police, he did not go to the Police F
Station. This witness was also examined, firstly, on 17.6.1989
and in his cross examination, at the first instance, his criminal
past was brought out. There can be no dispute that the witness
has a criminal past, but that by itself, may not be sufficient to
throw his evidence, as has been done by the Appellate Court. G
While we see the impugned judgment, it is evident that even
+ the statements of other two witnesses, namely, Bajrang Lal
~·
(PW-3) and Durga Lal (PW-4) were recorded after about 23
days of the occurrence of the incident. Those two witnesses
turned hostile and hence, they were not believed. However, H
386 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A insofar as this witness (Badri Lal - PW-2) is concerned, in Para
22 of the Appellate Judgment, it was held that the delay in
recording of his evidence under Section 161 Cr.P.C. was fatal.
The Appellate Court did see that the name of Badri Lal (PW-
2) was there in the First Information Report also, which gave
B great support to the fact that he was present. The only reason
that the Appellate Court has given is the late recording of his
statemenl under Section 161 Cr.P.C. and that he was involveu
in number of criminal cases. We are also not satisfied with the
~
observation made. Beyond this, the Appellate Court has not
c dealt with his evidence at all. The Public prosecutor took us
through the evidence of Badri Lal (PW-2) in detail and we find
that there is absolutely nothing to disbelieve insofar as the
evidence relating to the main incident is concerned. He claim,~d
that in his evidence, it has come that he had no dispute with
the accused and rather he was friendly with them. He also
D
claime~ that he saved Lakendra- Singh (PW-1 ). He candiqly
'
k
admitted that he did not go to the Police Station, that was
. probably because PW-1 had already gone to the Police Station.
The only material omission, which has come in is about his not
having stated in the statement under Section 161 Cr.P.C. that
E Murli was armed with Lathi. ,In his cross examination itself, the
position of the accused persons, while assaulting, has come
on the record. As if all this was not sufficient, it has come in
his evidence that there was a 200W Bulb, burning in the lane, ~
the tube lights of the hotel were on and its light was coming in ~
F the lane. It has also come in his evidence that the municipal
electric pole from the lane was at a distance of 45 Feet. Thus,
it was in the cross examination that the source of light was
brought in. Second round of recording of his evid~nce was took
place on 17.3.1993. Again, the witness unmistakably pointed
G out the roles played by the two appellants and the weapons that
they were armed with. There can be no doubt that the witness
was of criminal character and that his statement was recorded --+
later, but even then, if that caution is kept in mind while ......
appreciating the evidence and if his evidence inspires upon
H confidence, it is not incorrect to accept such evidence.
MURLI AND ANR v. STATE ',OF RAJASTHAN 387
[V.S. SIRPURKAR, J.]
However, for that purpose, his evidence has to be scrutinized A
very closely. This is apart from the fact that an opportunity has
to be given to the Investigating Officer to explain as to why the
statement was recorded late. Applying all these tests, we do
not think that his evidence was liable to be thrown only on the
ground that he had a criminal past and his statement was B
recorded late. Therefore, we are of the opinion that, applying
all these tests, his evidence as against two appellants, is
f acceptable.
9. This takes us to the question argued by the Learned
Senior Counsel for the appellants regarding the wrong
c
identification made by Lakendra Singh (PW-1), wherein he had
identified accused Bheru as Heera. We have seen the Exhibit
P-28. Exhibit P-28 stands proved by Tara Chand Soni (PW-
~ 15). We have seen the evidence of PW-15 closely. Though
Exhibit P-28 is exhibited on the basis of the evidence of the D
~
said witness, he has not stated in his substantive evidence that
Lakendra Singh (PW-1) called Bheru as Heera. It is a comment
made by Heera, which has been incorporated in the document
in Column No. 7, which reads as under:-
E
"Yah Aadmi ladai me majud tha, isliye janta hun. Main iska
naam pahle se janta hun."
.. Thereafter, in Column No. 9, he named the said
--C person as Heera S/o Hardev, Caste Gujjar, R/o Gamach.
F
10. We have also seen the evidence of Lakendra Singh
(PW-1) very closely on this issue. Undoubtedly, he has
committed an error in suggesting that Heera and Murli were
also put in for Identification Parade, which is not a fact. That
• was an obvious mistake. This may be because of the lapse of G
memory because he has referred to these facts only in the
-"t-
second installment of his evidence, which was recorded after
,....
about 11 years. We do not attach much importance to that,
though the Learned Senior Counsel for the appellants earnestly
urged that we must take note of this mistake. The Learned H
.....
388 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A Senior Counsel for the appellants then invited our attention to
the following sentence Jn his cross examination:-
)..
"In Exhibit P-28, whatever I have stated before the
Magistrate at X to Y, was stated correctly."
B From this, the Learned Senior Counsel urged that the
witness was given sufficient opportunity to explain his earlier
statement made to the Magistrate and that is how we will be
able to read the contents of Panchanama and accept the same ~
as substantive evidence. We do not agree. The contents of the
c Panchanama are not the substantive evidence. The law is
settled on that iss~e. What is substantive evidence is what has
been stated by the· Panchas or the concerned person in the
witness box. Again, even if we accept the extreme preposition,
anything and everything stated in the Panchanama can be read
D as the substance evidence, still the fact remains that in this
case, the witness who has supposed to have made the lt
statement to the Magistrate, is not given an opportunity to
explain the same. The portion marked from X to Y is in Column
No. 7 of the Panchanama, where he had made the statement
E as above. However, there is no cross-examination or no
question put to him·about the contents of Column No. 9, where
he has taken the name of Heera. The statement in Column No.
7 amounts to his previous statement and unless he was
confronted with the statements specifically and asked to explain, . )-.
F such statement cannot be used. It is trite law that a previous
statement of the witness, even if admissible in evidence, cannot
be used against the witness, unless the witness is confronted
with the same and his attention is invited. In his substantive
evidence, the witness has never made a statement that he had
identified Bheru as Heera. So much so that there is nothing in
G
the evidence, which suggests that Heera and Murli were ever
identified by him. His admitted case was that he knew Heera -1"
and Murli even before the incident took place. It is an admitted -.....
position that Heera and Murii were never put in for identification
in the Identification Parade. Under such circumstances, the
H
.J>
MURLI AND ANR. v. STATE OF RAJASTHAN 389
[V.S. SIRPURKAR, J.]
..J insignificant circumstance in the Test Identification Panchanama A
to the effect that the witness had identified Bheru and named
him as Heera, cannot amount to the substantive evidence and
further it cannot be used, as that statement was never
specifically put to the witness. This is apart from the fact that
even if the witness was confronted with his previous statement, B
there is other over-whelming evidence to the effect that witness
had in fact known Heera and had identified him and named him
~ in the First Information Report. We may also point out that a
statement that he knew Heera from the beginning and even
before the incident took place, has gone completely c
unchallenged. Strangely enough, that fact has been brought in
his cross examination. We have, therefore, no hesitation in
accepting the evidence of Lakendra Singh (PW-1 ). We have
also given our reasons as to why the evidence of Badri Lal (PW-
2) was also acceptable and that the High Court should not have D
'J rejected the same. Once we see the evidence of Badri Lal (PW-
2), there are hardly any inter se contradictions in between the
evidence of Lakendra Singh (PW-1) and Badri Lal (PW-2). In
' that view, the active role played by Heera and Murli is obvious.
11. The Learned Senior Counsel for the .appellants further E
urged that Murli had given only one blow and there could not
be an intention of committing murder. It has come in the
.. evidence of Dr. Vinod Kumar Dhingra (PW-10) that besides
{
the incised wounds, the deceased also suffered the fracture.
What was tried to be argued by the Learned Senior counsel F
was that Dr. Vinod Kumar Dhingra (PW-10), in his evidence,
had stated that the deceased had died on account of asphyxia 6
due to complete incised injury to trachea. The Learned Senior
Counsel tried to argued that if this alone was the injury resulting
in death, then some advantage should be given to Murli who G
r was merely handling a Lathi. The accused persons, as per the
charges, were charged with the offence under Section 302
substantively. In addition to that, all the accused were also
charged with the aid of Section 149 IPC. It is obvious that both
the appellants had specifically taken part in the assault, their H
390 SUPREME COURT REPORTS [2009] 13 (ADDL.} S.C.R.
A presence was established, their overt acts were also )..
established. It was further established that while Heera had
given the blows with the aid of a sharp edged weapon, Murli
had assaulted the deceased with Lathi on the head. In that view,
both the accused can be convicted. The High Court in the
B appellate judgment, however, has not discussed any of these
aspects and has merely chosen to dismiss the appeal and
thereby confirming the conviction ordered by the Trial Court with
the aid of Section 149 IPC. That undoubtedly was incorrect. The ~
High Court ought to have given a specific finding. However, the
c fact remains that these two appellants were found to have
inflicted the injuries with sharp edged weapon, as well as, Lathi.
They have also been individually charged with the offence under
Section 302 IPC. In that view, they were bound to be convicted
for the offence under Section 302 read with Section 34 IPC.
They came together on the spot, they also gave abuses to the
D
deceased and thereafter, acted along with each other. ~
Therefore, we have no hesitation in upholding the conviction,
but not with·the aid of Section 149 IPC, but with the aid of
Section 34. Unfortunately, the High Court has not discussed this
aspect of the case. We, therefore, find no merits on this ground.
E:
12. We, therefore, hold that the appeal has no merits and
has to be dismissed. It is accordingly dismissed. ,.,_•
F D.G. Appeal dismissed.
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