Holding

The Supreme Court upheld the convictions and the enhanced sentence under Section 304 Part II read with Section 149, finding the identity of the accused established and the death after 24 hours appropriate for that offence.

Summary

The case arose from a violent incident on 10 May 1978 at a marriage venue in Simla, where a group of youths armed with hockey sticks, iron rods and other weapons attacked the gathering in retaliation for a prior altercation involving a parked jeep. The assault resulted in injuries to several persons and the death of Suresh, who succumbed to his injuries after more than 24 hours. The appellants, Rakesh Singha and another accused, were convicted under Sections 148, 149, 325 and related provisions and the High Court enhanced their punishment to rigorous imprisonment under Section 304 Part II read with Section 149. The appellants challenged the conviction on grounds of doubtful identity, improper inclusion in the FIR, and that their well‑settled status should preclude further imprisonment; the State sought further enhancement of the sentence. The Supreme Court held that the prosecution evidence firmly established the identity of the accused, that the death after a lapse of 24 hours and the use of deadly weapons warranted conviction under Section 304 Part II, and that suspension of sentence does not affect the conviction for election disqualification purposes. Consequently, all three criminal appeals were dismissed and, by implication, the related election petitions were also dismissed.

Issues considered

The identity of the accused was established beyond reasonable doubt.
Whether the death of the victim after 24 hours and the nature of the weapon justify conviction under Section 304 Part II instead of Section 302.
Whether the High Court was justified in enhancing the sentence and altering the conviction.
Whether suspension of sentence under Section 360 CrPC affects the conviction for purposes of election disqualification.

Legislation cited

Code of Criminal Procedure, 1973s. 227, s. 232, s. 27, s. 313, s. 360
Indian Evidence Act, 1872s. 27, s. 313
Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 304 Part II, s. 323, s. 325, s. 327, s. 427, s. 452

Subjects

unlawful assemblyculpable homicide not amounting to murdersection 304 Part IIidentity of accusedelection disqualificationsuspension of sentenceconviction enhancementcriminal appeal

Judgment

RAKESH SJNGHA ETC. ETC. A
v.
STATE OF HIMACHAL PRADESH ETC. ETC.

APRIL 9, 1996

[J.S. VERMA, S.P. BHARUCHA AND K. VENKATASWAMI, JJ.] B

Indian Penal Code, 1860 : Sectio11s 148, 149, .325, 427, 452, 302 a11d
304 pmt-ll.

Unlawful essembly-Accused armed with deadly weapons-Indis- C
cn·nlinate attack on persons who had gathered in connection with nzarriage
pai~Injwies i11flicted on various peisons-Death of one injured-Ide11tity of
accused established by prosecutio11 witllesse;~onviction of accused held
justified-E11ha11ceme11t of se11tence by High Cowt u11der section 304 Pait JI
held justified.
D
Climinal t1ia/-Sente11ce-Mitigating factor-Plea that acwsed had set-
tled i11 life-Rejectio11;of

Election-Conviction of appellant-Nomi11ation filed by appellant-ac-
cused during pendency of appeal before Supreme Coult after obtaining
swpension of sentence imposed on him-Nomination accepted and declared E
elected-High Coult declared nomination illegal-Appeal-Criminal appeal
dismissed-Consequention-Dismissal of election appeal.

Appellants S and M, along with other twelve co-accused, were
prosecuted under sections 147, 148, 149, 452, 427 and 323 of the Indian
Penal Code, 1860. The prosecution case was that on May 10, 1978, H(PW-7) F
celebrated his daughter's marriage at his house (alfin lodge) in Simla. A
jeep belonging to H parked ahead of his house was meddled with by some
college students. Three persons tried to drive away the jeep. On being
questioned they abused and theatened to assault the driver ·or the jeep and
R (PW-4) son of H. 1\vo of the accused inclnding S were beaten and G
humiliated by certain persons belonging to Allin lodge. Consequently the
accused persons later assembled for taking revenge. D(PW-2) saw the
accused persons, who were armed with deadly weapons like hockey sticks,
iron rods, iron chains, dandas, emply bottles etc., rushing towards the
lodge. He :·nsuccessfully dissuaded them from entering the lodge. N(PW-9),
the bride's brother followed D and some other men folk also came there. H
101
102 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A Accused M gave a hockey stick blow to N resulting in fracture of ulna bone
of the latter. He instigated the other accused persons to attack and kill one
and all persons there and this resulted in incliscrimate beating of various
persons. The incirlent was also witnessed by PW-5 and 20. The unlawful
assembly inflicted injuries to whomsoever came in its way; As a result many
persons. received injuries including one S, who latter succumbed to the
B injuries. In fact s was helping the other injured persons in taking them to
the hospital. After reaching the hospital be became suddenly numb and fell
unconscious. For this reason his name was not mentioned as one of the
injured persons in the F.I.R. lodged by D. Because of death of S, charges '
under Section 325, 307 and 302 were also added. Out o( fourteen accused
C one was discharged under section 227 of the Code of Cdminal Procedure,
1973. Later seven were acquitted under Section 232 and only six were called
upon to enter their defence. Even amongst the six, after 'trial, appellants S
and M were convicted under Section 148, 452, 427 and,325 read with 149
I.P.C. but were given the benefit of probation under section 360 Cr. P.C.
Relying on the testimony of prosecution witnesses the Trial Court gave
D formidable reasons in support of its findings that there was no doubt about
involvement of both the appellants. On appeal the high Court of Himacbal
Pradesh confirmed the conviction of appellants. It converted the offence
from one under Section 352 I.P.C. to one under Section 304 Part II and
imposed enhanced punishment of rigorous imprisonment for five years
E under section 304 Part II read with section 149.

Against the decision of the High Court, appellants preferred appeal
before this Court. State of Himachal Pradesh also preferred appeal seeking
further enhancement of sentence.

F On behalf of the appellants it was contended that (i) the identity of
accused was not established beyond doubt; (ii) name or accused M was not
mentioned in the FIR; bis inclusion at the subsequent stage was an after
thought; and (iii) as both the accused were well settled in life confirmation
of tbier sentence will spoil their career.

G The appellant in the connected civil appeal was elected to the 8th
Assembly Constitutency, Himacbal Pradesh. Appellant S also filed bis
nomination paper during the pendency of his appeal in this Court after
obtaining suspension of the sentence imposed on him by the High Court.
His nomination was objected to by the election petitioner. On the basis of
H the order of suspension of sentence by this Court bis nomination was
.. RAKESH SINGHA v. STATE 103

accepted and he was declared elected. Challenging his election three elec· A
tion petitions were filed in the Himachal Pradesh High Court which held
that suspension of sentence will not automatically result in suspension of
conviction. Accordingly it held that election of S was void as the result of
his election was materially affected by the improper acceptance of his
nomination. Appeals were preferred before this Courts challenging the
B
decision of the High Court.

Dismissing the appeals, this Court
• HELD : 1. The concurrent findings of the courts below are well-con-
sidered, well supported and well-founded. There is no scope for interference
either with the conviction or with the enhancement of sentence awarded by
c
the High Court. [109-A]

2. The argument concerning the accused/appellants that during the
pendency of the appeal they having well-settled in life should not be asked
to go to prison by confirming the sentence is not acceptable on the facts of D
this case. The accused appellants along with number of others armed with
hockey sticks, iron chains etc. attacked the aged, defenceless persons indis·
criminately including women and children completely turning the happy
marriage occasion to one of mouring. On the facts, the High Court was
justified in enhancing the sentence and there is no case for interference on
any account. [112-D] E

3. The High Court was right in altering the conviction from one under
Section 302 to Section 304 Part II having regard to the fact that the death
of S occurred after 24 hours of inflicting injury and also the.type of weapon
used for caus[ng the injury. There is no case for further enhancing the
F
sentence. [112-F]

4. During hearing of these appeals, the counsel on both sides agreed
that in the event of this Court dismissing the Criminal Appeals, all the
election appeals will also stand dismissed and no separate argnment was
addressed. As the criminal appeals have been dismissed the civil appeals G
also stand dismissed. [113-G]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
185 of 1988 Etc.

From the Judgment and order dated the 25th September, 1987 of the H

~
104 SUPREME COURT REPORTS [1996] .SUPP. 1 S.C.R. •
A H.P. High Court at Simla in Cr!. A No. 42 of 1979 arising out of the
Judgement and Order dated 4th October, 1978 passed bySessions Judge,
Simla in Session Trial No. 30-5/7 of 1978.

R.K. Agnihotri, Himinder Lal, U .A. Rana, for Gagrat and Co.,
Chandra Prakash Pandey, Manoj Swamp, Badri Pra~ad Singh, K.V.
B Venkataraman, Ajil Pudussery R.P. Singh and C.L. Sahu for the appearing
parties.

The Judgment of the Court was delivered by :
•
K. VENKATASWAMI, J. Criminal Appeal Nos. 185 to 187 of 1988:
c
The above three Criminal Appeals arise out of a judgment and order
in Criminal Appeal No. 42 of 1979 on the file of t])e High Court of
Himachal Pradesh dated 25.9.1979.

The appellants in Criminal Appeal Nos. 185 and 187 of 1988 were
D convicted by the learned trial Judge under Sections 148, 452, 427 and 325
read with Section 149 I.P.C. However, the learned Sessions Judge dealt
with the convicted accused under Section 360 of the Criminal Procedure
Code and instead of sentencing them to any punishmqnt directed them to
be released on their entering into a bond in the sum of rupees ten thousand
with one surety for the like· sum in each case undertaking to appear and
E receive sentence when called upon during a period of 1 years from the date
of judgment and in the meantime to keep peace and he of good behaviour.
The State aggrieved by the judgment of the learned Sessions Judge
preferred appeal to the High Court. On appeal, the High Court enhanced
ihe sentence of the accused/appellants to rigorous imprisonment for a
period of five years under Section 304 Part (II) read with Section 149 I.P.C.
F
It also awarded sentence of R.I. for a period of thtee years for offences
under Sections 325, 452 read with Section 149 IPC. Still further they were
sentenced to undergo R.I. for two years under Section 148 IPC. All the
above sentences were directed lo run concurrently. The Stale still ag-
grieved has filed Criminal Appeal No. 186 of 1988 seeking further enhan-
G cement of sentence as well as for conviction of some other accused persons.

Briefly stated, the facts are as under;

On May 10, 1978 one Harnam Dass (P.W. 7) celebrated his
daughter's marriage at his house (Alfin Lodge) in Simla. A jeep bearing
H registration No. HPN - 102 belonging to Harnam Dass was parked on the
RAKESHSINGHA v. STATE(K. VENKATASWAMl,J.] 105

road just ahead of his house. P.W.3 Shakti Ram was the driver who found A
two boys (university students) pushing the jeep and third one sitting on the
steering trying lo start the vehicle. When the driver questioned the boys,
they started abusing him and threatened to assault. The driver went down
towards Alfin Lodge and returned with Rakesh (P.W. 4) who is the son of
Harnam Das. On questioning the boys for interfering with the jeep, he was
also abused and when Rakesh shouted for help, the boys left the jeep and
B
went away. While going they shouted that they would soon teach them a
lesson. Rakesh informed about this incident to P.W. 2 Dharam Pal who
was then working as Additional District & Sessions Judge, Kangra who
brought the matter to the notice of P.W. 7 Harnam Dass and also rang up
the Police Station for Police protection. The Station House Officer by C
name Pritam Singh (P.W. 35) with police party reached Alfin Lodge in a
Police Van and police party was also there till about 1.30 A.M. on 11.5.1978
when the marriage party and the bride departed. Thereafter the polic"
party left the place leaving .one Head Constable and one Constable at Alfin
Lodge on the suggestion of Dharam Pal. About 8 or 9 persons from Bride's
side had yet to take their meals which was ordered to be served. At that D
time Dhararn Pal saw about 20-25 boys rushing towards the main gate of
Allin Lodge. The distance between the main gate of the Allin Lodge and
the place where Dharam Pal and others were sitting and waiting for meals
to be served was about 50 ft. Dhararn Pal on seeing the boys proceeded
towards them with the intention to persuade and stop them from entering E
the Sharniana. He even disclosed his identity thanking that they might show
some respect. The boys were armed with various types of weapons like,
hockey sticks, iron rods, iron chain, dandas, empty bottles etc. Naresh
Kumar, P.W. 9 who is the bride's brother followed Dharam Pal and some
other men folk also came there. The appellant in Criminal Appeal No. 187
of 1988 questioned the men folk present then as to who had removed his F
boys from the jeep. While they were talking, the appellant in Criminal
Appeal No. 187 of 1988 gave a hockey blow aiming at the head of Naresh
Kumar which the latter received on his left forearm resulting in a fracture
·of his ulna bone. Then it is stated the said appellant instigated the other
boys to attack and kill 011e and all persons there and this resulted in G
indiscriminate beating which lasted for about 10 minutes. Seeing the situa-
tion going ont of control, D haram Pal once again rang up the police station
. and apprised .the police of the happening there and requested for imme-
diate police assistance. On coming to know of this, the boys retreated.
While going back they threw stones on the \luilding thereby breaking some
. window panes. They also broke the flood light which had been installed on H
106 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R. •
A the katcha approach road. In the incident, Dharam Pal, Naresh Vidyasagar,
Rakesh, Ramesh, Omesh and the deceased Suresh had all received various
injuries at the hands of the boys. About 20 minutes later, the S.H.O. Pritam
Singh accompanied by a police force reached the place and immediately
sent the injured persons except Dharam Pal and Omesh to Ripon Hispital,
Simla in the police van for their medical examination and treatment. He
B immediately inspected the spot and started recording statements of P.W.
2 Dharam Pal under Section 154 Cr. P.C. After recording the statements,
the same were sent to the Police Station for registration of the case. Initially
the case was registered under Sections 147, 148, 149, 452, 427 and 323 IPC.
Later on as one of the injured namely, Suresh, succummbed to the injuries,
charges under Sections 325, 307 and 302 !PC were also added. The S.H.O.
c during investigation took into possession a hockey stick, t~o broken pieces
of cricket wicket, a wrist watch which had fallen from the wrist of Dharam
Pal, a broken piece of a bottle, a piece of wood, some ~tones and some
broken window panes from the spot. He also took into po~session the shirt
of Ramesh which was besmeared with blood.
D
Pursuant to this, the Police could round up only 14 of the boys who
were involved in the incident. Some of them were arrested on 12.5.1978
and others were arrested on 15th May, 22nd May and 29th May, 1978.
While in the police custody, Humkam Chand, Chuni Lal and Chain Ram
made statements under Section 27 of the Evidence Act in pursuance of
E
which the Police recovered an iron chain, a broken leg of a chair and an
iron rod said to have been used in the course of the incident. On being
sent for chemical analysis they were found stained with human blood.
Stomach contents of deceased Suresh along with portions of liver, one
kidney and spleen as well as samples of blood and urine were also sent for
F chemical analysis and as per the information of the chemical examination,
blood alcohol concentration to the extent of 86 mg. per 100 ml was detected
and presence of alcohol was confirmed by the stomach contents recovered,
kidney, spleen and urine of the deceased. The 14 boys except Kahan Singh
Dagar who were arrested were challaned to the Court of the Chief Judicial
G Magistrate, Simla who committed all of them to face .trial in the Sessions
Court for offences under Section 147, 148, 149, 452, 427, 323, 325, 353, 307,
302 and 201 !PC.

The accused Kahan Singh Dogra was discharged nnder section 227
H Cr. P.C.
RAKESH SINGHA v. STATE [K VENKATASWAMI,J.] 107

All the accused were sent to the Sessions Court to face-the trial as A
they pleaded not guilty. The common plea of the accused persons was that
they were not present at the time of alleged occurrence and they have been
, falsely implicated in this case. The learned Sessions Judge after going
through the oral evidence of PWs and the documentary evidence produced
by the prosecution and also the statements of the accused under section
B
313 Cr. P.C. found that seven out of thirteen who faced the trial, namely,
Mehar Singh, Hardev Singh, Arnn Mahajan, Pratap Singh, Jagrup Singh
Chaudhary, Rajender Chauhan and Prem Nath had not committed any of
the offences charged against them and consequently acquitted all these
seven persons under Section 232 Cr. P.C. The balance six of the accused
were called upon to enter their defence. Though the witnesses listed by thec
accused were summoned, the accused persons did not avail the opportunity
of examining them.

After hearing the arguments of the counsel for the prosecution and
the defence the learned Sessions Judge by Order dated 4.10.78 convicted D
the appellant in Cr!. Appeal No. 185 & 187 of 1988 (appellants in Cr!. A.
No. 185 & 187/88) only for offences punishable under sections 148, 452,
427 and 325 read with 149 !PC. However as mentioned above, they were
released on their entering bonds for a sum of Rs. 10,000 with one surety
for the like sum and also undertakings during a period of_ two years from
the date of the judgment and keep peace in the meantime and be of good E
behaviour.

On appeal by the State of Himachal Pradesh, the High Court for
reasons staled in the judgment under appeal while confirming the convic-
tions of the appellants in Cr!. A. No. 185 & 187 of 1988 sentenced them F
by imposing various rerms of imprisonment to be run concurrently as
indicated earlier.

Learned counsel appearingCfor the appellant in Cr!. A. No. 185/88
contended that the conviction if at all could be justified on the ground of G
vicarious liability and as such could have been punished with fine alone
and not by sentencing to imprisonment. Though PW9 is said to have
identified the accused, namely, the appellant, in the absence of acceptable
corroboration, the evidence of PW 9 ought not to have been accepted by
the Court. The evidence of PW 9 is not fool proof for acceptance without
corroboration especially when he gave only the surname. The trial court H
108 · SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A acquitted four other co-accused as it was not prepared to accept the
evidence of PW 9 with regard to those four accused persons' identification.
Likewise, applying the same reasoning, the contention is, that the courts
should have rejected the evidence of PW 9 in respect of the appellant's
identification as well. In any case, according to the learned counsel, that
there was no intention to cause grievous injury much less one of death is
B obvious from the fact of the weapon used in the attack. The High Court
was not justified, according to the learned counsel, in converting the
offence from the one under Section 352 to another under Section 304 Part
II on the facts of this case and, therefore, the enhancement of sentence
and that too after eight years of the occurrence and the appellant having
C served the punishment imposed by the trial court is not justified. On these
. grounds, the learned counsel argued that the appeal should be allowed.

The learned counsel for the appellant in Cr!. A. No. 187/88 con-
tended that the appellant's name did not find a place in the First Informa-
D tion Report and the evidence, read as a whole, does not establish the case
to be against the appellant and that the identity was not established beyond
doubt. He particularly invited our attention to the fact that PW2, Dharam
Pal did not testify, the crucial fact that the deceased received any injury at
all. According to him, this vital factor escaped attention of the trial court
~
I
as well as the High Court. He built up his argument further by contending
E that having regard to the post-mortem report, the deceased could have
died on account of fall as a result of excessive.drinking and that is why PW
2 did not testify to the alleged injury received by the deceased at the hands
of the accused. It was also argued that the accused has since well settled
in life and if he is asked now to undergo the remaining part of imprison-
F ment, that will spoil his career particularly when during all these years the
appellant has not given any room for a complaint.
I
So far as the appeal filed by the State is concerned, namely Cr!.
A.No. 186/88, no one was present to argue the appeal. However, we have
l
considered the grounds raised in the special leave petition and it will be
G dealt with at the appropriate place.

We have considered the submissions \)f the learned counsel appear-
ing for the appellant in Criminal Appeal Nos. 185/88 and 187/88. After
carefully going through the judgments of the Sessions Court and the High
H Court, we are unable to pursuade ourselves to accept the contentions

•
RAKESHSINGHA v. STATE [K. VENKATASWAMl,J.] 109

rai,ed by the learned counsel for the appellants in Criminal Appeal Nos. A
185/88 and 187/88. Not only for the reason that the findings are concurrent
but also for the reason that the findings of the courts are well-considered,
well supported and well-founded we find that there is no scope for inter-
fereni::e either \Vith the convictjon or \Vith the enhancen1ent of .sentence
awarded by the High Court
B
We have seen the root cause for the incident was the meddling with
jeep by the college students. Though the prosecution presented the case as
if nothing more than an altercation took place in connection "1th the jeep
incident, the learned Sessions Judge on the basis of evidence of PW 10 was
right in finding that the accused Kedar Singh and Rakesh Singha (appellant
in Crl. A No. 185/88) were beaten and humiliated by certain persons
c
belonging to Alfin Lodge. He was also right in observing that as a result
of such manhandling of the above said accused, the students later as-
sembled and decided to take revenge. Otherwise there was no good reason
for P.W. 2 Dharampal to seek police protection during the marriage
ceremony that was to take place in the night of 10th May, 1978. Proceeding D
further, we find that after the main incident at the Alfm Lodge and on the
basis of FIR given by P.W. 2 Dharampal, 14 boys were arrested out of
which one Kahan Singh Dogra was discharged under section 227 of Cr. PC.
Later 7 were acquitted under section 232 Cr. P.C. and only six were called
upon to enter on their defence by the learned Sessions Judge. Even among
the six, after the trial, the learned Sessions Judge convicted only the two E
accused appellants before us and acquitted the rest.

As stated above, on appeal both by the accused/appellants and the
State, the High Court while confirming the conviction of appellants before
us and acquittal of four others, enhanced the sentence imposed on the
accused appellants. This only shows that the courts have carefully weighed F
the evidence and have not accepted the same in its entirity as presented
by the prosecution.

So far as the accused appellants are concerned, the main arguments,
as we have seen earlier, are regarding their identity, involvement in the G
main incident that took place at Alfin Lodge and the credibility of evidence
tendered by PW 9. Other contention seriously pressed was that the appel-
lant in Criminal Appeal No. 187 of 1988 contended that the name of the
appellant did not appear in the F.I.R. and the inclusion at the subsequent
stage was an aftet-thought. Another argument advanced was that both the
accused appellants have well-settled in life and at this distance of time, this H
•
110 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A Court will lake note of that fact and if this court confirms the sentence
imposed on the accused appellants that will spoil 'their career. So far as
the main incident that look place at the Alfin Lodge is concerned, that has
been well-established beyond doubt by the prosecution witnesses 2, 4, 5, 7,
8, 9, and 20 and, therefore, that was not seriously challenged.

B Coming now to the identity of the appellants, the High Court rightly
accepted evidence of PW 9 and found as follows : '

"The learned Sessions Judge has given formidable reasons in sup-
'
port of his findings that there can be hardly any doubt about the
c involvement of Rakesh Malik and Rakesh Singha. We do not think
there is any good reason to take a different view of this point. PW
9 Naresh Kumar, Advocate, had met both·of these accused earlier.
It was he who had kept one of his land on Rakesh Maliks' shoulder
at the place of the main occurrence and had addressed him; "Malik,
Kia bat hai"?. Accused Rakesh Malik, however, directed a hockey
D
stick on Naresh Kumar's head which th(1 latter warded off by his
left fore-arm resulting in fracture of unla-bone, which fact is borne
out by the medical evidence. That PW ~ Naresh Kumar had so
addressed accused Rakesh Malik before the members of the un-
lawful assembly started inflicting injuries to whosoever came in
E their way is borne out from the testimony of other eyewitnesses as
well. PW 4 Rakesh Sood, PW 5 Ramesh Sood and PW 20 Vidya
Sagar, Advocate, have identified Rakesh Malik in the Court. Even
if much weight is not attached to such identification, there is no
reason at all to disbelieve the testimony of PW 9 Naresh Kumar
who has come out totally unscathed in his cross-examination as far
F as the identification of Rakesh Malik and Rakesh Singha is con-
cerned. PW 11 Chet Singh has deposed that he alongwith other
University students after hearing that some of the students had been
beaten and were lying hy the side of the road, had proceeded to the
place where jeep had been parked He saw accused Kedar Singh and
Rakesh Singha lying on the roadside at a distance of about JO paces
G
from the dhaba being run by PW 10 Raj_ Kumar. PW 10 Raj Kumar
had then told them that Rakesh Singha and Kedar Singh had a quarell
with some members of the marriage party. This part of his testimony
has not been challenged in the cross-examination which establishes
the involvement of these two persons in the jeep incident. PW 10 Raj
H Kumar was declared hostile and his demeanour in the witness box
RAKESH SINGHA v. STATE [K. VENKATASWAMI, J.] 111

was noted by the learned Sessions Judge with observations that he A
was trying to act in an over-clever manner and was forestalling the
questions put to him and was volunteering replies even before the
questions were complete. Even this witness identified accused
Kedar Singh being involved in the jeep incident though he denied
having made a statement before the Police that Kedar Singh had
told him about Rakesh Singha having misbehaved with the driver B
under the influence of liquor. Thus, it stands proved beyond
,. reasonable doubt that accused Rakesh Malik and Kedar Singh
were two persons out of the. three who had tried to drive away the
jeep. As regards the identification of the culprits at the time of
main occurrence which took place at about 1 a.m., it is writ large
on the statements of eye-witnesses in this case that none of them
c
had a desire to implicate anyone falsely. Cumulatively, therefore,
we are in entire agreement with the learned Sessions Judge about
the identity of accused Rakesh Malik and Rakesh Singha having
been fully established."
D
After going through the evidence, we do not find any good ground

- to take a different view. Regarding the argument that the name of the
appellant in Criminal Appeal No. 187/88 did not find a place in FIR given
by PW 2 Dharampal, we do not find that there is any lacunae in that. PW
20 in his deposition has stated as follows :
E

"There was no visible injury mark on the person of Suresh when
he accompanied us to the Hospital. After our medical examination
in the Hospital, Surcsh first complained that two of fingers of his
hand had become numb and then he complained that he was
feeling as if his right side was being paralysed. The doctor then F
started examining Suresh and also inquired from him if he had
received any injury. Suresh could not reply by mouth but he
pointed out towards his head by his hands. The doctor wanted
Suresh to sign some papers but Suresh was unable to sign his name.
It was about 5.45 or 6 AM when Suresh complained.ofhis troubles. G
Soonafter he became unconscious. He was therefore, detained in
the Hospital and the rest of us returned to Allin Lodge in the same
Van. About fifteen minutes later we received a telephonic message
that the condition of Suresh had grown very serious and he was
being removed to Snowdon Hospital. On receipt of that informa-
tion some of us went to Snowdon Hospital. Suresh could not H
:;
.~
112 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A recover and expired in the early hours of 12th May."

As a matter of fact, it appears from the evidence that the deceased
Suresh was in fact helping the other injured person at the Alfin Lodge in
taking them to hospital and that was the reason for PW 2 not mentioning
Surcsh as one of the injured in the FIR. Therefore it was quite in accord
B with the evidence cf P .W. 20. Another argument advanced by the learned
counsel for the appellant in Criminal Appeal No. 187/88 was that having
regard to the post-mortem report of the deceased Suresh, it was suggested
that the injuries could have been caused on account of the fall due to effect •
of alcohol. This argument is stated to be rejeGted only as the evidence
shows that the deceased was helping other injured persons to be taken to
c hospital and only at the hospital he suddenly developed numbness and
became unconscious. The last argument concerning the accused/appellants
that during the pendency of the appeal they having well-settled in life
should not be asked to go to prison by confirming the sentence is not
acceptable lo us on the facts of this case. We have seen that the accused
D appellants along with number of others armed with hockey sticks, iron
chains etc. attacked the aged, defenceless persons indiscriminately includ-
ing women and children completely turning the happy marriage occasion
to one of mourning. On the facts, we are satisfi~d that the High Court was
justified in enhancing the sentence and there is no case for interference on
any account.
E
Now coming to the appeal preferred by the State (Criminal Appeal
No. 186/88) we do not find any merit in the appeal. The High Court was
right in altering the conviction from one under S.302 to S.304 Part II having
regard to the fact that the death occurred after 24 hours of inflicting injury
and also the type of weapon used for causing the injury. We do not think
F that there is any case for further enhancing the sentence. For the foregoing
reasons, we dismiss all the three appeals.·

CiFi/ Appeal Nos. 6303-05 of 1994 & 7232 of 1994

G All these appeals arise out of a common 'judgment and order of the
High Court of Himachal Pradesh in Election Petition Nos. 1/94, 4/94 and
5/94 dated 13.9.94. The appellant in C.A. No. 6303-05/94 was elected to the
8th Assembly Constituency, Himachal Prade~h in the election held on
9.11.93. It may be mentioned that the appellant who is the appellant in
Criminal Appeal No. 185/88 filed his nomination paper during the penden-
H cy of the said appeal in this Court after obtaining suspension of the

•
RAKESH SINGHA v. STATE [K. ".£NKATASWAMI, J.] 113

sentence imposed on him by the High Court. His nomination was objected A
• to by the election petitioner. On the basis of the order of suspension of
sentence by this Court his nomination was accepted and he was declared
elected on 29.11.93. Challenging his election three election petitions were
ftled in the Himachal Pradesh High Court. The High Court took the view
that suspension of sentence will not automatically result in suspension of
conviction, therefore, the acceptance of the nomination was illegal. The B
High Court said as follows :

"The result of the above discussion is that the election of Sh.
Rakesh Singha is void as the result of his election has been
materially affected by the improper acceptance of his nomination. C
He is disqualified to be chosen to fill the seat of 8-Simla Assembly.

Constituency having been convicted and sentenced to imprison-
ment for a period of more than two years by judgment dated
25.9.87 in Cr!. Appeal No. 42 of 1979 passed by this Court. Th.e D
order dated 10.1.89 and 2.2.90 passed by the Supreme Court,
releasing Sh. Rakesh Singha on bail, resulting in the suspension of
sentence imposed upon him, do not arrest the disqualification
which was in operation on the date of scrutiny of his nomination
under Section 36 of the Act and also continues to be in operation
when these election petitions are being decided." E

Challenging the above decision of the High Court, the appellant has
filed Civil Appeal No. 6303-05/94. Civil Appeal No. 7232/94 is preferred by
the appellant who was a candidate defeated in the election and being
aggrieved in not getting a declaration as elected in the place of the first F
respondent in his Appeal (Rakesh Singha) even though he was found to
have secured next highest votes.

While these appeals were heard along with Criminal Appeal Nos.
185, 186 and 187 of 1988, the counsel on both sides agreed that in the event
of this Court dismissing the Criminal Appeals, all the election appeals will G
also stand dismissed and no separate argument was addressed. As we have
dismissed the criminal appeals, these civil appeals also stand dismissed.
However, there will be no order as to costs.

T.NA Appeals dismissed. H

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