DEENA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These two appeals are directed against common judgment of conviction dated 02.06.2014 and order of sentence dated 03.06.2014 passed by the Court of Special Judge (Dacoity Affected Area), Dholpur (for short 'the trial court') whereby the trial court, while acquitting accused persons namely Chitra Singh; Ramroop; Nathi; Padma @ Padam Singh and Rajendra of the charge under Section 216A IPC, has convicted and sentenced the accused-appellants namely Deena @ Deendayal; Kallu @ Kamal Singh; Mahaveer; Guddan and Rajkumar in the manner as indicated below: <FRM>JUDGEMENT_185_LAWS(RAJ)12_2017_1.html</FRM>

(2.) Briefly stated the facts of the case are that Netrapal (P.W.12), complainant/informant submitted a written report (Exhibit P-10) to S.H.O., Police Station Kolari, District Dholpur at 9.30 P.M. on 21.02.2006 inter alia stating therein that on that day at about 6.00 P.M., the complainant and one Girraj son of Hakim Singh Gurjar resident of Rasulpur were going from their village to Anda Manpur Village to meet Gabbar Singh Gurjar on motor cycle of Ashok Jatav. While returning back to their village, when they reached near Piphera at about 8.00 P.M., they found that some vehicles were standing parked there and there was a situation of traffic jam. When they stopped their motor cycle, suddenly five miscreants, who all were armed with weapons, started giving beating to them. One of the miscreants, whom the informant/complainant identified as Guddan, opened fire which hit chest of Girraj on account of which Girraj died on spot. Then Guddan with others ran away from the place of incident. The complainant further alleged that he could identify the accused, if brought before him. On the basis of aforesaid written report, the police registered regular FIR No. 18 of 2006 (Exhibit P-11) for offences under Sections 143, 323, 341, 302 IPC. On completion of trial, the police filed charge sheet against accused Deena @ Deendayal for offence under Sections 147, 148, 149, 302, 395, 396, 323, 341 IPC and Section 11 RDA Act; against accused Chitra Singh, Ramroop for offence under Section 216A IPC; against accused Guddan; Rajkumar, Kallu @ Kamal Singh, Mahaveer, Bhiky for offences under Sections 147, 148, 149, 302, 395, 396 IPC and Section 11 R.D. Act and against Nathi, Rajendra and Padma for offence under Section 216A IPC before the Court of Magistrate having jurisdiction. However, investigation against others were kept pending under Section 173 (8) Cr.P.C., 1973 The case being exclusively triable by the Court of Sessions, it was committed to the Court of Sessions, Dholpur wherefrom it was made over to the Court of Special Judge (Dacoity Affected Area), Dholpur for trial. The trial court framed charges against accusedappellants Deena @ Deendayal; Kallu @ Kamal Singh, Mahaveer, Rajkumar for offence under Sections 148, 302 read with 149, 395 and 396; against accused-appellant Guddan for offence under Sections 148, 302, 395 and 396 IPC; against accused Ramroop, Chitra Singh; Nathi, Rajendra, Padma for offence under Section 216A IPC read with Section 11 of Rajasthan Dacoity Affected Area Act, which they denied and claimed to be tried. The prosecution to secure conviction of the accused persons produced 25 witnesses and exhibited 37 documents. Thereafter, the accused persons including present accused-appellants were examined under Section 313 Cr.P.C., 1973 wherein they pleaded innocence. In defence no witness was produced but four documents were got exhibited. Upon conclusion of trial, the trial court vide impugned judgment of conviction and impugned order of sentence, while acquitting accused namely Ramroop, Chitra Singh; Nathi, Rajendra, Padma, convicted and sentenced present accusedappellants in the manner as indicated above. Hence, these two appeals.

(3.) Mr. Yogesh Singh, learned counsel appearing on behalf of accused-appellants Guddan, Rajkumar, Kallu @ Kamal Singh and Mahaveer argued that the impugned judgment dated 02.06.2014 and order of sentence dated 03.06.2014 passed by the learned trial court are absolutely illegal, perverse on law and facts as also against the criminal jurisprudence. The accusedappellants are innocent persons, who have been falsely implicated in the present Case. The learned trial court has convicted and sentenced the accused-appellants on the basis of surmises and conjectures. Learned trial court has considered the evidence available on record in proper manner. It is argued that prosecution has proved it's case beyond reasonable doubt against the accused appellants. But, learned trial court has passed the order of conviction and sentence in a casual manner, even testimony of the witnesses has been taken into consideration in true manner. Therefore, learned trial court has committed gross illegality in passing the judgment of conviction and order of sentence against them. Learned counsel argued that Babulal (P.W.2), who is star witness of the prosecution, Hakim Singh (P.W.4), Shripati (P.W.11), Laxman (P.W.15) and Rajendra (P.W.16) have been declared hostile by the prosecution and supported the prosecution story. It is argued that entire case of the prosecution is that accused-appellant Guddan has opened two fire arm shots on the chest of the deceased by which he died on the spot. But neither any fire arm was recovered, nor learned trial court has discussed in it's finding in this regard. Thus, all the offences are proved beyond the reasonable doubts against the accused-appellants. It is argued that a bare look of the entire case of the prosecution would reveal that only two witness are required to be examined by the Court who are Netrapal Singh (P.W.12) and Ramniwas (P.W.18). However after conjoint reading of statements of both these witnesses, it is clearly proved that contradictory statements were given by them during the trial. Ramniwas (P.W.18) has stated in his statement that when incident took place whether Netrapal was present or not. Thus, presence of the Netrapal (P.W.12) is doubtful on the spot during incident. Therefore, conviction cannot be awarded on the basis of the statement of Netrapal. The prosecution has proved beyond reasonable doubt the fact of committing of dacoity by the accused-appellants, therefore, conviction and sentence of the accused-appellants cannot be sustained. It is submitted that name of the accused-appellant Rajkumar does figure in the FIR. Neither accused-appellants were identified in the identification parade by the witnesses during investigation, nor any looted article were recovered at the instance of the accused-appellants. Even he has been identified by the witness in the court during their examination. Therefore, he is also entitled to be acquitted by this Court on this sole ground. Learned counsel argued that it has emerged in the testimony of the witnesses that it was dark at that time at the place where incident had taken place. Time of the accident was at about 9.00 P.M. Moreover, no witness had said in his/her statement that light of any of the vehicle on spot was lit which could make any of the accused visible during the incident. Thus, it is manifest that there is no possibility to identify the miscreants by the witnesses without light at the spot. Even some of the witnesses are saying that miscreants were wearing mask on their face. Thus, testimony of the witnesses is credible and reliable. It is argued that Ramniwas (P.W.18) has stated that he did know number of the motorcycle of Girraj. Aforesaid motorcycle was taken away by him at his Village Raseedpur which is 7 km. far away from there but Netrapal (P.W.12) has stated that he went on motorcycle of Girraj thus both the statements are conflicting with each other. Thus, story of the prosecution cannot be relied entirely against the accused-appellant and does prove guilt of the accusedappellants beyond reasonable doubt. It is argued that Babulal (P.W.2) has turned hostile, however, he has stated that miscreants were wearing mask on their faces when incident took place. Whereas other witness Netrapal is saying that he has identified the miscreants during the incident. Thus, both the statements are contradictory and presence of the Netrapal at the place of occurrence is doubtful during the incident. Learned counsel in support of his arguments relied upon the judgments of the Supreme Court in Iqbal and another v. State of Uttar Pradesh, (2015) 6 SCC 623 ; Rabindra Kumar Pal @ Dara Singh v. Republic of India, 2011 Cr.L.R. (SC) 367 ; Nallabothu Ramulu alias Seetharamaiah and others v. State of Andhra Pradesh, (2014) 12 SCC 261 and State of Uttar Pradesh v. Satveer and others, (2015) 9 SCC 44 .