CHITTARMAL versus STATE OF RAJASTHAN

Citation: [2003] 1 S.C.R. 49 · Decided: 08-01-2003 · Supreme Court of India · Bench: N. SANTOSH HEGDE · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

CHITTARMAL 
A 
v. 
STATE OF RAJASTHAN 
JANUARY 8, 2003 
[N. SANTOSH '.-IEGDE AND B.P. SINGH, JJ.] 
B 
Penal Code, 1860: Ss.302134, 307134-Murder and attempt to murder-
Prosecution of 7 accused-Charge u/s 3021149 and 3071149-0ccurrence 
seen by injured eye witness-Conviction by trial court under sections 302 and C 
307 of 2 accused and conviction of others u/ss. 3021149 and 3071149-High 
Court upheld conviction of 2 accused and acquitted the other accused-On 
appeal, held-On the facts of the case conviction of the 2 accused justified -
Other accused having been acquitted, the member of the participants being 
less than 5 charge u/s 3021149 cannot stand-Since common intention of the 
two accused proved, their conviction altered to one u/ss. 302134 and 307134. D 
Sections 34 and / 49-Common object and common intention-
1pp/icability of and distinction between. 
Accused-appellants and 5 other accused were prosecuted u/ss. 302/ 
149 and 307/149. Prosecution case was that accused assaulted two persons E 
and PWI at night while they were sleeping in a room on adjoining cots. 
The assault resulted in the death of the two and grievous injuries to PWI 
24 in number. FIR was lodged by PWS who claimed to be eyewitness. PW-
1, the injured eye witness, PWS and some other witnesses were examined 
during trial who deposed to have seen the accused. PWS, in the FIR had 
not named one of the accused-appellants. In the site inspection, it was F 
found that on the gate of the house there was an electric bulb. PW-I in 
his evidence improved upon his police statement by naming othe.r 5 
accused. Trial court convicted the accused-appellants u/ss 302, 307 and 
148 !PC and other accused u/ss 302/149 and 307/149 and 148 !PC and 
sentenced the appellants to death. 
High Court declining the death reference and partly allowing the 
appeal, convicted the appellants u/ss 302 and 307 !PC and acquitted the 
other accused of all the charges. It disbelieved the claim of PWS of being 
an eyewitness and found inconsistency in the testimony of the witnesses. 
49 
G 
H 
50 
SUPREME COURT REPORTS 
[2003] I S.C.R. 
A 
In appeal to this Court, appellant contended that there was no 
B 
mention of artificial light at the time of occurrence; that PWI though 
stated that he woke up at the sound of "thali", he had not said so in police 
statement; that appellants having been charged u/ss 302/149 IPC could 
not have been convicted u/s 302 IPC without a specific charge having been 
framed. 
Dismissing the appeals, the Court 
HELD: 1.1. On the testimony of PW.I the participation of the 
appellants in the commission of the crime must be held to have been 
C proved. 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. Though he stated that he woke up on 
hearing sound of 'thali', he had not said so in his police statement is not 
of much significance because he was sleeping next to the deceased per~ JDS 
in a same room on a separate cot. When the appellants attacked t.tle 
D deceased that would have awakened him from his sleep because in normal 
course the two persons sleeping next to him on being attacked must have 
resisted the attack and in that process there must have been some noise 
enough to awaken the witness. It is too much to assume that two persons 
sleeping on two separate cots nearby in the same room would be assaulted 
E and killed and the sleep of the third person sleeping in the same room will 
not be disturbed. (56-D-G] 
1.2. Failure to mention about existence of electric light in the FIR 
was not of much consequence and was not fatal to the case of the 
prosecution particularly when on site inspection such an electric bulb was 
F found in front of the gate of the house. Moreover, the assailants belong to 
the same village and were known to PWl. They had caused numerous 
injuries to him with swords and, therefore, he had abundant opportunity 
to identify them even if there was no light. Moreover, the testimony of 
PWl was corroborated by the medical evidence on record. (56-B-D] 
G 
1.3. Overt act and active participation is indicative of common 
intention of the persons perpetrating the crime, and in the facts and 
circumstances of this case the appellants shared the common intention to 
commit the murders of the deceased and acting in concert they executed 
their pre-arranged plan to eliminate them. Accordingly the conviction of 
H th

Excerpt shown. Read the full judgment & AI analysis in Lexace.