LexMURLI AND ANR. versus STATE OF RAJASTHAN
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[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 ; [V.S. SIRPURKAR AND CYRIAC JOSEPH, JJ.] r Penal Code, 1860: "" c s.302 r.w. s.149 - Conviction under- Accused persons 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: D Evidence of PW1 remained unshaken - Insignificant 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 E asked nor there was any cross examination of investigating 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 '!-- F evidence - Substantive evidence is. what has been stated by 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 ,, • I 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. The Judgment of the Court was delivered by B 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 14 7, 148 & Sections 325 and 323 read with Section 149 of the Indian Penal Code (hereinafter referred to as "IPC" 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) c and Virendra Singh asked them not to mishbehave. Just then, 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 D various weapons. Virendra Singh fell down there itself. Then I • also, he was assaulted by Murli and one other person, though Sadri Dhakar tried to stop them; wh!ch was futile. After the ~ incident,
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