PRAMOD SHRIVASTAV & ANR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The case at hand is yet another classic example of terror of accused having subdued the victims to such an extent that they did not muster courage to give direct evidence against the accused but yet the circumstances have proved strong enough so as to negate the ill effects created by the accused in the minds of the victims and have allowed the truth to prevail.

(2.) Facts in brief are that the S.H.O., P.S. Hiran Magri, Udaipur received an information regarding gun shots having been fired by some unknown persons near Krishi Mandi Savina, Udaipur. Acting upon the same, police team reached to the place of incident and apprehended two assailants who had been nabbed by the people present at the spot including Suresh Mehta, Nemi Kumar, Chandra Prakash etc. The two injured Pawan Chittora and Suresh Mehta who received fire arm injury at the hands of the two assailants, were taken to the American Hospital for treatment. Kailash Chandra, S.H.O. recorded the parcha bayan of Pawan at the hospital on 06.11.2012 at 8:05 PM. Pawan alleged in his statement that he was having a shop 'no. 12' bearing the title 'Kesariya Bhanwarlal Ambalal' in Krishi Mandi Savina. At about 6:30 PM, he was standing at the neighbouring shop named 'Mahaveer Prasad Pawan Kumar Mehta' and was talking to Suresh Mehta. Shyamji Sindhi who collects sale proceeds of the traders, came around on a motorcycle for collecting money from Suresh Mehta. At that time, 2 assailants; one being tall with dark complexsion and the other one being of medium height came there and tried to snatch the money bag from Shyamji. Pawan tried to intervene and save Shyamji. The assailant who was said to be of medium height, fired a katta at Pawan which hit his abdomen. Meanwhile, the accused continued their efforts to snatch the money bag from Shyamji. Pawan raised a hue and cry on which Suresh Mehta, Chandra Prakash, Nemi Kumar came to the scene of occurrence. The assailant having the Katta fired another gunshot which hit on the abdomen of Shyamji. The assailants were overpowered by Suresh Mehta, Chandra Prakash, Nemi Kumar and some police personnel who had reached at the scene of occurrence. Pawan was taken to the American hospital for treatment. On the basis of this parcha bayan, an FIR No. 542/2012 was registered at the P.S. Hiran Magri, Udaipur for the offences under Sections 307 and 397/34 IPC and Section 3(25) of the Arms Act and investigation commenced. After investigation, the appellants herein were charge-sheeted for these offences. The trial Court framed charges against the appellants for the offences under Sections 397/34 and 307/34 IPC and Section 3(25) of the Arms Act. The appellants pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses in support of its case. It is relevant to mention here that though the material prosecution witnesses viz., PW1 Pawan Chittora - the first informant, PW2 Shyamji, PW3 Lokesh Gawaria, PW4 Chandra Prakash and PW5 Nemi Kumar unequivocally gave evidence about the incident but strangely enough they refused to identify the accused appellants as the assailants even though the accused had been overpowered and apprehended at the spot right at the time of the incident. After initial round of the prosecution evidence being recorded, the trial Court questioned the accused under Section 313 Cr.P.C. The accused denied the prosecution allegations but did not choose to lead evidence in defence. At this stage, the Presiding Officer realised that the accused had also suffered injuries in a very same incident but by inadvertence, their injury reports could not be proved. On this, the evidence of the concerned doctor was recorded by exercising powers under Section 311 Cr.P.C. Apart from offering a bald denial, the accused did not offer any explanation whatsoever for the injuries suffered by them in the incident. The trial Court, proceeded to extract the admissible parts of evidence from the statements of the hostile prosecution witnesses and the admissions made by them in their cross-examination and proceeded to convict and sentence the accused appellants as below vide the impugned judgment dated 01.08.2015 : -

(3.) Learned counsel Shri Deepak Menaria vehemently urged that the conviction of the appellants as recorded by the trial Court for the offences under Sections 307 and 397 IPC is absolutely illegal and unjustified. He contended that as all material prosecution witnesses turned hostile at the trial and did not identify the appellants as the assailants, there remains no evidence worth the name on the record of the case so as to hold the appellants guilty of the offences. In the alternative, he contended that the appellants were arrested on the very day of incident i.e. 06.11.2012 and are in custody since then. They have suffered imprisonment of almost 5 years. Thus, he urged that in case, the Court is not satisfied with the arguments on merits, the sentences awarded to the accused should be suitably reduced.