RAJU @ RAJ KUMAR versus STATE OF RAJASTHAN

Citation: [2007] 5 S.C.R. 1156 · Decided: 03-05-2007 · Supreme Court of India · Bench: S.H. KAPADIA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
RAJU @ RAJ KUMAR 
v. 
STATE OF RAJASTHAN 
MAY3, 2007 
[S.H. KAPADIA AND B. SUDERSHAN REDDY, JJ.] 
Penal Code, 1860: 
S.148--Conviction under, on the basis of post mortem report and 
C evidence of eye witness that appellant was carrying knife and stabbed 
deceased on the chest-Knife and clothe:; recovered had stains of human 
blood-Hence, no infirmity in order of conviction under s.148. 
Administration of Criminal Justice: Conviction under s.148 !PC-State 
D did not appeal against order of trial Court for convicting appellant under 
s.302 in addition to his conviction under s.148-Hence, appellant cannot be 
convicted under s.302 in appeal preferred by him. 
Prosecution case was that PW-4 along with his father-deceased, had 
gone to his uncle's house for dinner. While the deceased was sitting on the 
E bed talking with PW.4's aunt and uncle, 10 to 12 persons entered the room 
and surrounded the deceased. They 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 stabbed his father. On the basis of the 
information given by he appellant, weapons of offence and blood soaked clothes 
were recovered. The appellant was charged under ss.148, 302, 1208 and 460 
F IPC. However, he was convicted under s.148 IPC. 
In appeal to this Court, two issues havi~ arisen for consideration. The 
first concerns the merits of the case and second concerns an argument 
advanced on behalf of the appellant that he has completed the sentence of three 
G years on 8.3.2007 as he was convicted for offence under s.148 IPC, which 
has been disputed by the State on the ground that the appellant stood convicted 
under s.302 IPC and sentenced to life imprisonment. High Court confirmed 
the conviction. 
H 
Allowing the appeal, the Court 
1156 
RAJU@RAJ KUMAR v. STATE OF RAJASTHAN 
1157 
r 
HELD: 1. There is no reason to disbelieve PW.4, the son of deceased. A 
PW.4 has deposed that it was dinner time, that the deceased was sitting on 
the bed and he was in conversation with his aunt. Both the courts below have 
come to the conclusion, placing relianc:: on the post-mortem report, that there 
was an injury on the chest of the deceased and that the knife and the clothes 
recovered had human blood. The cause of the death, as given in the post- B 
mortem report, was syncope. Both the courts below have come to the 
conclusion, on the basis of the evidence of PW.4 that the appellant 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 deceased 
was stabbed to death by the appellant. In the circumstances, there is no 
infirmity to the extent of the conviction of the appellant under s.148 IPC. 
[Para 6] [1159-F-H; 1160-A-B] 
2.1. The State did not go in appeal against the order of the trial court 
c 
for convicting him under s.302 IPC in addition to his conviction by the trial 
court under s.148. Even the High court, by the impugned judgment, has merely 
dismissed the appeal filed by the appellant upholding his conviction under D 
s.148 IPC. [Para 10] [1162-A-B] 
2.2. Offence under s.148 IPC is distinct and separate from the offence 
under s.302 IPC. The State should have filed an appeal seeking conviction of 
the appellant under s.302 IPC apart from his conviction under s.148 IPC. 
This has not been done in the present case. The offence of rioting with deadly E 
weapon under s.148 IPC is separate and distinct from the offence under s.302 
IPC. The appellant cannot be convicted under s.302 IPC in the appeal preferred 
by the appellant. The State did not move the High Court in appeal against the 
conviction under s.148; nor did the State seek enhancement of punishment 
before the High Court in appeal. (Paras 10 and 13) (1162-D-E; 1165-A-B) 
F 
Satbir v. Surat Singh and Ors., AIR (1997) SC 1160 and Nanda Kishore 
Mohanty v. The State of Orissa, AIR [1961] Orissa 29, referred to. 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 664 of 
~ 
G 
From the Final Judgment and Order dated 13.01.2006 of the High Court 
of Judicature for Rajasthan, at Jaipur Bench in D.B. Criminal Appeal No. 660 
of2005. 
Jaspal Singh, R.K. Bhardwaj (for Mis Temple Law Firm), R.K. Kapoor, H 
1158 
SUPREME COURT REPORTS 
[2007] 5 S.C.R. 
A M.K. Verma and Anis Ahmed Khan for the Appellant. 
B 
V. Madhukar, Surnit Ghosh, San jay Jha, Kumar Kartikay and Aruneshwar 
Gupta for the Respondent.

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