DHARAMPAL SAHARAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Instant criminal revision petition under Sec. 397/401 Cr.P.C. has been filed by the petitioner against the order dtd. 23/8/2023, passed by learned Additional Sessions Judge, Taranagar, District Churu in Sessions Case No.11/2023, whereby the learned Judge dismissed the application filed by the petitioner under Sec. 193 Cr.P.C. Brief facts of the case are that on 8/9/2022, the petitioner submitted a complaint before SHO, PS Taranagar inter-alia alleging therein that his son Rajendra Kumar was running a grocery shop in the village. The accused persons namely Vinod @ Chhagan, Mansukh & Dariya Singh were having enmity with the petitioner's son because of some money transaction. It has been alleged that few days ago, the accused persons came at the shop of petitioner's son and demanded money. Some heated arguments took place between them and upon intervention by the family members, the accused persons left the shop while threatening the petitioner's son to face dire consequences. It has been further alleged that today i.e. 8/9/2022 at 6:30 PM, when the petitioner was sitting outside the house along with his younger son Begraj, they suddenly heard gunshot. Upon which, they saw the accused persons namely Vinod @ Chhagan, Mansukh & Dariya Singh standing towards the shop along with two other persons. Accused persons namely Vinod @ Chhagan & Mansukh were having pistol in their hand and they were continuously firing on the petitioner' son Rajendra, who was sitting in the shop. The petitioner with his family members rushed towards the shop, upon which the accused-persons fled away. The petitioner took his son to Government Hospital, Taranagar and during treatment his son died.

(2.) On the basis of the aforesaid complaint, Police registered the FIR against the accused persons and commenced investigation. After thorough investigation, Police filed charge-sheet only against accused person Vinod @ Chhagan for offence under Sec. 302 IPC and Ss. 3/25, 27 of Arms Act before the competent court. Thereafter, the learned trial court took cognizance against the accused person and committed the case for trial before the court of learned Addl. Sessions Judge, Taranagar, District Churu, where the petitioner moved an application under Sec. 193 Cr.P.C. for taking cognizance against the accused-respondents No.2 and 3 and vide order dtd. 23/8/2023, the learned trial court dismissed the petitioner's application. Hence, this revision petition. Mr. Rs. Choudhary, Adv. appearing for the petitioner submits that in the FIR, the petitioner/complainant, who was eye-witness of the incident, specifically named the accused Vinod @ Chhagan and respondents No.2 & 3 namely Mansukh Ram & Dariya Singh respectively. Counsel further submits that other eye-witnesses of the case namely Krishan Kumar, Begraj, Rajendra & Smt. Meera also named the accused-respondents No.2 & 3 in their statements, but Police did not record their statements in true perspective. Counsel further submits that since the Police was not fairly investigating the matter, aforesaid eye-witness Krishna Kumar submitted his affidavit before the Superintendent of Police, Churu. Counsel submits that the Police exonerated the accused-respondent No.2 & 3 on the basis of confessional statement of accused Vinod @ Chhagan in which he stated that accused-respondent Nos.2 & 3 were not present at the place of incident. Counsel submits that at this stage, the confessional statement of the accused Vinod @ Chhagan is not relevant at all when the independent witnesses have specifically named the accused-respondent Nos.2 & 3. Counsel submits that despite specific allegation against the accused-respondent Nos.2 & 3, the learned trial court did not take cognizance against them. Thus, the finding of learned trial court is absolutely wrong and the impugned order deserves to be quashed and set aside. Counsel has cited the judgments of the Hon'ble Supreme Court in the cases of Balveer Singh & Ors. Vs. State of Rajasthan & Ors. [AIR 2016 SC 2266] and Dharam Pal & Ors. Vs. State of Haryana & Ors. [AIR 2013 SC 3018] as well as judgments of this Court in the cases of Sita Vs. State & Ors., SB Cr. Revision No.488/2017 decided on 1/2/2018 and Dileep Kumar @ Deepu @ Deepak Meena Vs. State & Ors., SB Cr. Revision Petition No.979/2022, decided on 13/7/2022.

(3.) Per contra, Mr. Muktesh Maheshwari, counsel appearing for respondents No.2 and 3 submits that during investigation, Police collected evidence such as call details of accused persons, their locations and also recorded the confessional statement of co-accused Vinod @ Chhagan and after thorough investigation, Police came to the conclusion that only co-accused Vinod @ Chhagan was present at the place of incident and accused-respondents No.2 and 3 were not present and accordingly, filed FR against them. Counsel further submits that witnesses Dalveer Singh and Balveer Singh have specifically mentioned in their statements recorded under Sec. 161 Cr.PC. that they heard from the villagers that accused Vinod @ Chhagan shot upon deceased Rajendra and not accused-respondents No.2 and 3. Counsel submits that the learned trial court after considering all the aspect of the matter has rightly dismissed the application filed by the petitioner/complainant and the finding of learned trial court does not require any interference. In support of his contentions, counsel has relied upon judgment of the Hon'ble Supreme Court in the case of Barkat Ali @ Bakki Vs. State of Rajasthan [(2012) 2 CriLR 628] and the judgments of this Court in the cases of SB Cr. Revision Petition No.332/2012, Guddi Devi Vs. State and Ors., decided on 14/12/2012 and SB Cr. Revision Petition No.2573/2019, Brijendra Singh Vs. State and Ors., decided on 10/9/2021. Heard learned counsel for the parties and perused the impugned order as well as carefully gone through the material available on record and the judgments cited by the counsel. In the FIR lodged by petitioner-complainant Dharampal, he specifically alleged that main accused Vinod @ Chhagan and respondent Nos. 2 & 3 namely Mansukh Ram and Dariya Singh came at the shop of his son Rajendra. Accused Vinod @ Chhagan and Mansukh Ram were having pistol in their hand and they shot upon Rajendra and murdered him. The petitioner-complainant Dharampal in his statement recorded under Sec. 161 Cr.P.C. on 9/9/2022 also named the accused-respondents No.2 & 3. Another eye-witness Krishna Kumar also deposed in his statement recorded under Sec. 161 Cr.P.C. that at the time of incident, he was present at the shop of deceased Rajendra. He stated that accused Vinod @ Chhagan came at the shop of Rajendra and shot him and fled away in a car, in which 3-4 persons were already present. Subsequently, the said eye-witness Krishna Kumar filed an affidavit before S.P., Churu to the effect that main accused Vinod @ Chhagan along with 3-4 persons was present at the place of incident. Another eye-witness Begraj also named the accused respondents No.2 & 3 for causing injury to the deceased. Witness Ramjilal also stated the same story. Witnesses Meera @ Sunita and Rajendra also named the respondents No.2 & 3 in their statements. From the perusal of the statements of the aforesaid eye-witness and other witnesses, it is revealed that they specifically named the main accused Vinod @ Chhagan and respondents No.2 & 3 for causing gunshot injury to deceased Rajendra. Counsel for respondents No.2 & 3 has argued that witnesses Dalveer Singh and Balveer Singh did not name the respondents No.2 & 3 in their statement. But on perusal of their statements, it appears that they were not present when the incident occurred and they heard from the villagers that accused Vinod @ Chhagan shot upon deceased Rajendra. These witnesses are not an eye-witness of the case, therefore, much reliance cannot be placed on their statements.