S.H.Kapadia, J. - (1.) LEAVE granted.
(2.) THIS criminal appeal by grant of special leave is directed against impugned judgment dated 13.1.06 delivered by Rajasthan High Court at Jaipur in D.B. Criminal Appeal No. 660/04 confirming the conviction under Section 148 IPC imposed by Addl. District and Sessions Judge, Jaipur, in Session Case No. 49/2001. On 1.9.1989 at 9.20 pm Uttam Prakash (pw.4) lodged an FIR at Police Station Ashok Nagar, Jaipur, in which he claimed that he and his father Ram Kishan Khandelwal (since deceased) had left their house, situated at A-10, Sikar House Area, for his uncle's house at C-10, Madan Kunj, Prithvi Raj Road, Jaipur, when at 9 pm while the deceased was sitting on the bed talking with PW.4's aunt and uncle, 10 to 12 persons entered the room and surrounded the deceased. These 10 to 12 persons were armed with knives, swords and pick-axes. PW.4 was threatened and told not to shout. PW.4 in his FIR stated that in his presence the accused (appellant herein) stabbed his father, Ram Kishan Khandelwal. According to the FIR, when PW.4's uncle raised an alarm the appellant herein along with others fled. Ram Kishan Khandelwal died. According to the FIR, there was enmity between Ram Kishan Khandelwal on one hand and Hanuman, Hanif, Chhitar and Ramesh Shanker on the other hand. On the basis of the said report investigation commenced. The case was registered for offences under Sections 147, 149 and 302 of Indian Penal Code (for short, 'IPC'). On the basis of the information given by the appellant herein, weapons of offence and blood soaked clothes were recovered. PW. 25, a Judicial Magistrate, conducted identification parade of the appellant herein and others. The police thereafter submitted their charge- sheet, inter alia, against the appellant herein. 31 witnesses were examined. 74 documents were produced by the prosecution. During the course of the trial it was revealed that Ram Kishan Khandelwal and his family used to live at Sikar House Area in Jaipur. Hanuman and Chhitar were his neighbours. They were on inimical terms. There was property dispute. The bathroom of Hanuman and Chhitar was demolished by Jaipur Development Authority. Hanuman and Chhitar were under the impression that the bathroom was demolished on the complaint of Ram Kishan Khandelwal. Hanuman and Chhitar sold their house to Hanif (one of the co- accused). Prior to his death, Ram Kishan Khandelwal had lodged an FIR with Police Station Shastri Nagar, Jaipur, in which he had asked for police protection. Ram Kishan Khandelwal was also an accused in many criminal cases. These cases were pending. According to the prosecution, Hanuman, Chhitar and Hanif entered into a criminal conspiracy for the murder of Ram Kishan Khandelwal. According to the prosecution, however, the appellant herein along with Aziz, Iqbal, Mahendra Singh, Hamid and Firoz committed the actual murder. Therefore, according to the prosecution there were two groups of persons, the first set/group of persons entered a criminal conspiracy but the actual murder was done by Iqbal, Aziz, Raju Naik (appellant herein), Mahendra Singh, Hamid and Firoz. In this case, we are concerned with the conviction of Raju Naik (appellant herein). He was charged for offences under Sections 302, 120B, 148, 149 and 460 IPC.
(3.) TWO issues arise for determination in this criminal appeal. The first concerns the merits of the case and the second concerns an argument advanced on behalf of the appellant that the appellant has completed the sentence of three years on 8.3.2007 as he was convicted for offence under Section 148 IPC which has been disputed by the State on the ground that the appellant stood convicted under Section 302 IPC and sentenced to life imprisonment. On the merits of the case, we find that there is no reason to disbelieve Uttam Prakash (pw.4), the son of Ram Kishan Khandelwal (deceased). The incident took place on 1.9.89 around 9 pm when the deceased was sitting on the bed. Uttam Prakash (pw.4) and his father, Ram Kishan Khandelwal, had gone for dinner at his uncle's place at C-10, Madan Kunj, Prithvi Raj Road, Jaipur. When the deceased was sitting on the bed Uttam Prakash (pw.4) saw 10 to 12 persons entering the room and surrendering Ram Kishan Khandelwal. They were armed with knives, swords and pick-axes. Uttam Prakash (pw.4) saw the deceased being stabbed. Uttam Prakash (pw.4) has deposed that it was dinner time, that the deceased was sitting on the bed whereas he was in conversation with his aunt. Both the courts below have come to the conclusion, placing reliance on the post- mortem report, that there was an injury on the chest of the deceased and that the knife and the clothes recovered vide Ex.P.32 had human blood. The cause of the death, as given in the post-mortem report, was syncope. There was one more witness Rattan Devi (pw.20) but she could not identify the appellant in the identification parade. However, both the courts below have come to the conclusion, on the basis of the evidence of pw.4 that the appellant herein (Raju @ Raju Kumar) was a member of the unlawful assembly; that he carried the knife; that he had entered the room where the deceased was sitting on the bed and that Ram Kishan Khandelwal (deceased) was stabbed to death by the appellant herein. In the circumstances, we do not find any infirmity to the extent of the conviction of the appellant herein under Section 148 IPC.;