HARICHARAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The two appellants, along with two others have been convicted for committing murder of Ram Babu. What has been proved against them is that they formed an unlawful assembly and in prosecution of the common object of the unlawful assembly, on 27-2-1981 at about 1.00 p.m., they armed with weapons, stopped the bus going from Dholpur to Khuthiyana Ghat, asked the passengers to get down, attempted to drag out Ram Babu conductor of the bus and then appellant Rammo by firing two shots from his gun and others by their weapons injured and thereby killed Ram Babu.

(2.) In order to prove its case, the prosecution had examined 3 eye-witnesses PW-1 Kedarnath, PW-3 Ramjilal and PW-6 Satpal Singh the driver of the bus. PW-7 did not support the prosecution and he was required to be cross-examined by the public prosecutor. Learned trial court did not believe PW-3 Ramjilal who was the brother of the deceased on the ground that he was not present in the bus. Relying upon the evidence of Kedarnath the trial court convicted Rammo (A-1) under S. 302, I. P. C. and others under S. 302 read with S. 49, I. P. C. All the four accused applied for leave to appeal to this Court. Leave was granted to Hari Charan (A-3) and Siya Ram (A-4) and the application of Rammo (A-2) and Kailashi (A-5) was dismissed.

(3.) What is contended by the learned counsel for the appellants is that so far as A-3 and A-4 are concerned there is no clear evidence regarding any overt act suggesting that they were acting in prosecution of the common object of the unlawful assembly or that they were even members of any unlawful assembly. It was also contended that even if they are held to be members of an unlawful assembly, in view of absence of any evidence to prove that they had taken any part in killing Ram Babu it cannot be said that his murder was committed in order to achieve the object of that unlawful assembly. Therefore, their conviction under S. 302, I. P. C. read with S. 49 is not correct.