ROTASH versus STATE OF RAJASTHAN

Citation: [2006] SUPP. 10 S.C.R. 264 · Decided: 06-12-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

A 
ROT ASH 
v. 
ST A TE OF RAJASTHAN 
DECEMBER 6, 2006 
B 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
Penal Code, 1860; s.302 r/w s. 34: 
Murder-Joint liability-Accused-appellant and other accused 
C committed murder-Trial Court found accused appellant and another accused, 
brother of deceased guilty of committing offences uls. 302 r/w s. 34 /PC, 
convicted and sentenced them accordingly-Affirmed by High Court-On 
appeal, Held: PW!, another brother of deceased and PW6, mother of deceased 
named all the accused persons in their statement recorded by Police-
D Though some discrepancies noticed as regards actual overt act played by 
them but same is not of much significance-Even assuming that PW6 did not 
name accused appellant in FIR, no reason found to disbelieve ( e statement 
of PW6-lnjuries suffered by deceased could be caused only by hard blunt 
substance/iron pipes which were carried by accused persons-Intention to 
commit murder of the deceased inferred from totality of the circumstances of 
E the case-Crime committed by more than one person-Accused came together 
for committing the crime and fled away together-Prior concert proved by 
subsequent conduct-Hence sharing of common intention by accused in 
committing the crime established-Courts below rightly convicted and 
sentenced the accused 
F 
Appellant, his brother-in-law, (brother of the deceased) and four others 
attacked the deceased with weapons, the victim succumbed to the injuries. 
Deceased allegedly harassed wife of his brother; one of the accused. PW-I, 
another brother of the deceased lodged an FIR. Trial Court found appellant 
and another guilty of comi:nitting offences under ss. 302/34 IPC. Other 
G accused were acquitted as not identified. On appeal, conviction and sentence 
of the accused affirmed by the High Court. Hence the present appeal by one 
of the convicts. 
Appellant contended that he was known to the informant and having 
regard to the fact that he could identify the assailants of his brother, there 
H 
2M 
ROT ASH v. ST ATE OF RAJASTHAN 
265 
was no reason as to why he was not named in the FIR; that the mother of the A 
deceased, although named Appellant in her statement under Section 161 of 
the Code of Criminal Procedure Code, 1973 before the Investigating Officer, 
she did not attribute any overt act on his part; that presence of P. Ws. 8 and 
P.W.9 at the scene of occurrence was highly doubtful as their statements were 
recorded by the police after a few days; that P. W.8 at one place of his deposition B 
alleged that his statement was taken by the police 5-7 days after the incidence 
and at another place stated that the same was recorded 10 to 11 days after the 
incidence; that the statement of P.W.9, who claims himself to be an eye-witness, 
was also not recorded for three days despite the fact that he was a witness to 
the Panchayatnama of inquest of the deceased; and that all the witnesses being 
related to the deceased, were interested witnesses and the courts below C 
committed a serious error in relying upon their statements. 
Respondent-State submitted that P.W.1 in his deposition had asserted 
that somebody else has recorded his statement at the police station, who might 
have committed an error in not recording the fact that Appellant also took 
part in the commission of murder of the deceased and further more, having D 
regard to the fact that in the statements of both P.Ws. I and 6, which were 
recorded by the Investigating Officer, it cannot be said to be a case where 
omission to name Appellant would be fatal to the prosecution case; and that at 
the instance of Appellant the Investigating Officer has recovered an iron pipe, 
with which he had assaulted the deceased as also P.W.6. 
Dismissing the appeal, the Court 
HELD: 1.1. In the First Information Report, no statement had even been 
made that P. W.6, mother of the deceased, had suffered serious injuries. She 
E 
was brought to the hospital. She had been receiving treatment by P.W.12. It F 
is noticed that the Investigating Officer had gone to the place of occurrence 
immediately thereafter, carried out the preliminary investigation and recorded 
the statements of witnesses. He must have come back to the town and recorded 
the statement of PW-6. It has not been disputed that P.W.1 and P.W.6 in their 
statements before the police categorically named Appellant as one of the 
persons accompanying other accused. There may be some discrepancies in G 
their statements as re

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