[2023:RJ-JP:19628-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 438/2016
1. Pawan S/o Badri Prasad, aged about 24 years, resident of
Near Pannadhay B.Ed. College, Behind Shital Restaurant,
Santosh Nagar, Police Station, Sadar, District Tonk (Raj.).
2. Chothmal S/o Badri Prasad, resident of Near Pannadhay B.Ed.
College, Behind Shital Restaurant, Santosh Nagar, Police Station,
Sadar, District Tonk (Raj.).
(Both at present confined at Central Jail, Ajmer).
----Appellants
Versus
State Of Rajasthan Through PP
----Respondent
Connected With D.B. Criminal Appeal No. 336/2016 Narayan S/o Shri Kanhaiya Lal, aged about 20 years, resident of Near Pannadhay B.Ed. College, Behind Shital Restaurant, Santosh Nagar, Police Station, Sadar, District Tonk (Raj.). (At present in District Jail Tonk).
----Appellant Versus State Of Rajasthan Through PP
----Respondent For Appellant(s) : Mr. S.S. Hasan, Senior Advocate with Mr. Mohd. Haris in Cr.L.A.
No.438/2016 Mr. Narendra Pal Singh Jadoun for Mr. Atul Kumar Jain in Cr.L.A.
No.336/2016 For Respondent(s) : Mr. Javed Choudhary, Addl.G.A.
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Judgment
RESERVED ON :: 28/08/2023
PRONOUNCED ON :: 01/09/2023
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[2023:RJ-JP:19628-DB] (2 of 11) [CRLA-438/2016]
(Per Hon'ble Pankaj Bhandari, J.)
1. Since the controversy involved in both these appeals is same and common, the same are being decided by this common judgment and order.
2. The appellants have filed Criminal Appeal Nos.438/2016 and 336/2016 aggrieved by the judgment and sentence dated 08.01.2016 whereby accused appellants have been convicted and sentenced as hereinunder:-
Accused Appellant- Pawan
(i) For the offence under Section 302/34 IPC- Life imprisonment and a fine of Rs.10,000/- and in default of payment of fine, to further undergo, 6 months simple imprisonment.
(ii) For the offence under Section 4/25 Arms Act- 3 years rigorous imprisonment and a fine of Rs.1000/- and in default of payment of fine, to further undergo, 1 month simple imprisonment.
Accused Appellants- Chothmal & Narayan
(i) For the offence under Section 302/34 IPC- Life imprisonment and a fine of Rs.10,000/- and in default of payment of fine, to further undergo, 6 months simple imprisonment.
3. Succinctly stated the facts of the case are that on 06.04.2012, complainant - Satya Narain (PW-4) submitted a written report (Exhibit-P7) to the SHO, Police Station, Kotwali, (Downloaded on 11/11/2023 at 07:43:31 PM) [2023:RJ-JP:19628-DB] (3 of 11) [CRLA-438/2016] Tonk. On the basis of the said written report, the police registered an FIR bearing No.113/2012 (Exhibit-P23) at 10:25 pm for the offence under Section 302/34 of IPC against the accused appellants. In the written report and in the FIR, the allegation was against accused-Pawan and Chothmal along with 2-3 unknown persons and name of accused- Narayan was not mentioned. The police after due investigation, filed charge-sheet against accused appellant - Pawan under Section 302 IPC and Section 4/25 of the Arms Act, whereas against accused appellants - Chothmal and Narayan under Section 302/34 of IPC. The learned Trial Court after committal of the case, framed charges against accused appellant - Pawan for offence under Section 302 of IPC & Section 4/25 of the Arms Act and against other accused appellants for offence under Section 302/34 of IPC. The accused-appellants denied the charges and sought trial. Upon which, 18 witnesses were examined and 31 documents were exhibited on behalf of the prosecution. Explanation of the accused-appellants was recorded under Section 313 of Cr.P.C. In defence, 6 witnesses were produced. Learned Trial Court after hearing the final arguments of both the parties have convicted and sentenced the accused appellants as stated herein-above, aggrieved by which, the present appeals have been filed before this Court.
4. It is contended by the learned counsel appearing for the accused appellants that all the eye-witnesses i.e. Satya Narain (PW-4), Khem Chand (PW-5), Praveen Kumawat (PW-10) and Bharat Kumar (PW-12) are planted witnesses & are related to the deceased and belong to the same family. It is also contended that (Downloaded on 11/11/2023 at 07:43:31 PM) [2023:RJ-JP:19628-DB] (4 of 11) [CRLA-438/2016] the presence of the alleged eye-witnesses is not established as Investigating Officer, Raghuveer Singh (PW-18), has deposed that at 9:00 pm, he received an information about a person lying in a pool of blood near Gandhi Park. He rushed to the spot and from there he shifted the injured to the hospital, where he was declared dead. It is further contended that the version of Raghuveer Singh (PW-18) is to be believed, as none of the eyewitnesses were present at the spot. It is also contended that there is no last seen evidence and Satya Narain (PW-4), father of the deceased, who has posed himself to be a last seen witness, is not a reliable witness.
5. It is contended by the learned counsel appearing for the accused appellants that there is no recovery of blood-stained clothes of the accused -appellants. If the story of the prosecution is to be believed, the deceased had sustained as many as 6 sharp injuries including a stab wound on the chest which is assigned to accused appellant - Pawan and accused appellants Chothmal and Narayan were holding the deceased, hence, all would have stained their clothes with blood. It is also contended that recovery of knife also does not connect accused appellant - Pawan with the alleged offence, as recovery of knife as per the recovery memo (Exhibit- P9) was done on 10.04.2012. In the recovery memo, it was mentioned that knife was put in the white packet & then sealed and was marked as "II". However, in the Malkhana Register (Exhibit-P19A), description of the knife has been mentioned and it was again sealed and marked as "D", which implies that when the article was sealed, the seal was broken and then it was again (Downloaded on 11/11/2023 at 07:43:31 PM) [2023:RJ-JP:19628-DB] (5 of 11) [CRLA-438/2016] resealed. It is further contended that human blood was detected on the knife, but there was no matching with that of the blood of the deceased.
6. It is further contended that the place where the incident took place was a narrow lane, where there was no electricity pole and so there was no chance of any witness, witnessing the alleged occurrence. It is also contended that Satya Narain (PW-4) has deposed that there was no enmity of the deceased with the present accused appellants. It is further contended that all the eyewitnesses are related to the deceased. If they were actually present at the place of occurrence and when they must have tried to save the deceased or took him to the hospital, their clothes were also bound to be stained with blood, however, there is no recovery of blood-stained clothes of these witnesses, to establish their presence at the place of occurrence.
7. Learned counsel appearing on behalf of accused appellant - Narayan has contended that his name is not appearing in the FIR. The recovery of motorcycle also does not connect him with the alleged crime.
8. Learned Additional Government Advocate, on the other hand, has opposed the present appeals. It is contended that there is ample evidence on record and the learned Trial Court has not committed any error in convicting the accused appellants. It is also contended that the version as put forth by the eyewitnesses is genuine and reliable and there is no reason to doubt these witnesses.
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9. We have considered the contentions raised by the learned counsel for the parties and have scanned the evidence adduced before the Court.
10. Jagdish (PW-1), who is uncle of the deceased, has turned hostile. Manish (PW-2) has deposed that the deceased was having enmity with accused appellant - Pawan Dhanka. He has also deposed that Pawan Dhanka called him after the incident of murder at 8:45 pm from Mobile No.9785910350 upon his Mobile No.7737494672, whereupon, he threatened him that he has killed Abhilash and that if he tries to intervene in the matter, he will kill him and his mother. It is important to note that neither the mobile call details were made a part of the record nor a certificate under Section 65-B of the Indian Evidence Act was attached. Thus, the evidence of this witness that the deceased had made an extra- judicial confession is not established, as there is nothing on record to establish that the deceased called him to make a confession. This witness in his cross-examination has admitted that the deceased was not having any enmity with appellants Chothmal and Narayan. Jitendra Heerani (PW-3) is the employer of the deceased, who has stated that on the date of the alleged incident, the deceased had come to his house to take gas cylinder, however, this witness has not been able to identify the person with whom deceased came.
11. Satya Narayan (PW-4), father of the deceased, has stated that immediately after Avinash died, police came. This witness has also deposed that the accused appellants came on a motorcycle (Downloaded on 11/11/2023 at 07:43:31 PM) [2023:RJ-JP:19628-DB] (7 of 11) [CRLA-438/2016] and picked up his son. He has further admitted that when he reached near the deceased, at that time, the accused had fled away. He has also deposed that Chothmal snatched the mobile from his son's hand.
12. Khem Chand (PW-5) has deposed that on 06.04.2012 at around 7:30-8:00 pm, accused appellants - Pawan, Narayan and Chothmal were beating the deceased with legs and fists. Narayan and Chothmal were holding the hands of the deceased and Pawan was beating the deceased. In cross-examination, this witness has stated that the Police called him from his house at 8:00 am. At the time when he went along with the Police Personnels, the Police party was having one knife, mobile and vehicle. This witness has admitted that the Police did not make any independent witness to the recovery memo. Thus, as per this witness, on 10.04.2012 at 8:00 am in the morning when the Police called him, the Police was already having the knife, mobile and vehicle with them. This witness has further stated that when he reached the place of occurrence, around 100-150 persons were present.
13. Praveen Kumawat (PW-10), who is also uncle of the deceased, has deposed that when he reached the place of occurrence, the accused appellants fled on a motorcycle. He has also stated that at around 8:00-9:00 pm, they took the injured to the hospital. This witness has also been made witness of the recovery memos. This witness has also stated that recovery memos were prepared in his presence. This witness has further (Downloaded on 11/11/2023 at 07:43:31 PM) [2023:RJ-JP:19628-DB] (8 of 11) [CRLA-438/2016] stated that he cannot tell as to who was driving the vehicle, as the accused fled away from the place of occurrence.
14. Bharat Kumar (PW-12) has deposed that at around 7:00- 8:00 pm on 06.04.2012 he along with Satya Narain (PW-4), father of the deceased, were sitting in front of ICICI Bank, when Pawan, Chothmal and Narayan came by a motorcycle and Narayan & Chothmal alighted from the motorcycle. As soon as, the deceased came out, Pawan took him in the lane by his motorcycle. He has further deposed that he did not see any footprints or tyre marks at the place of occurrence.
15. Raghuveer Singh (PW-18), Investigating Officer, is an important witness of this case, who has deposed that on 06.04.2012, he received a telephonic message at 9:00 pm that a person is lying in a pool of blood. He has further deposed that when he reached near Gandhi Park, he found a person lying in a pool of blood. He shifted the injured to the hospital, where the doctors declared him dead. In his cross-examination, this witness has clearly stated that he reached the place of occurrence at around 9:30 pm, where he found the body of Abhilash. He has also deposed that family members of the deceased also reached the Hospital. There is no evidence as such of this witness that the relatives of the deceased were present near the place of occurrence.
16. From the statement of the Investigating Officer (PW-18), it is crystal clear that he received a telephonic information on 06.04.2012 at 9:00 pm; he reached the place of occurrence at (Downloaded on 11/11/2023 at 07:43:31 PM) [2023:RJ-JP:19628-DB] (9 of 11) [CRLA-438/2016] 9:30 pm, from where he carried the injured to the hospital, where he was declared dead. The statements of so-called eyewitnesses, who all are related to the deceased, do not inspire any confidence, as none of them helped the deceased or carried him to the hospital immediately after the incident, which is stated to have occurred at around 8:00-8:15 pm. If the incident in fact took place at 8:00-8:15 pm, there was no reason why the related witnesses did not take the injured to the hospital, as in the normal human behaviour, any relative would certainly take his kith and kin to the hospital, if he is stabbed. It is also important to note that the incident took place at around 8:00-8:15 pm, no reason is forthcoming as to why none of these related witnesses & so called eye-witnesses, called or informed the Police about the incident immediately and it is only at 10:15 pm, that the written report (Exhibit-P7) was submitted to the Police at the hospital.
17. The other piece of evidence which is against accused Pawan is the recovery of knife at his instance vide Exhibit-P9. The knife was seized by the Police on the basis of the information given under Section 27 of the Evidence Act. As per the recovery memo (Exhibit-P9), the knife was kept in a sealed condition and was marked as "II", however, as per the Malkhana Register (Exhibit- P19A), the description of the knife is mentioned and it was marked as "D", which goes to show that the seal of packet in which the knife was seized was opened in Malkhana and again resealed in the Malkhana. Thus, the recovery of knife comes under a cloud of doubt. Khemchand (PW-5) has admitted in his cross-examination that the Police called him on 10.04.2012 at 8:00 am and when he (Downloaded on 11/11/2023 at 07:43:31 PM) [2023:RJ-JP:19628-DB] (10 of 11) [CRLA-438/2016] met the Police, they were having knife, mobile and vehicle. However, as per Exhibit-P9, the recovery of knife took place at 2:30 pm on 10.04.2012, mobile was recovered vide Exhibit-P11 at 3:30 pm on 10.04.2012 and vehicle was recovered vide Exhibit- P13 at 5:00 pm on 10.04.2012. However, witness-Khemchand (PW-5) has stated that all these articles were already in custody of the Police in the morning at 8:00 am on 10.04.2012. Thus, the recoveries do not connect the accused-appellants with the alleged offence.
18. Learned Trial Court has erred in basing the conviction on the statements of the eyewitnesses, who are all related to the deceased and whose presence at the place of occurrence is not established. Learned Trial Court has erred in convicting the accused appellant- Pawan for the offence under Section 4/25 of the Arms Act, as the knife recovered, was already in possession of the Police, hence, the same cannot be linked with the accused Pawan.
19. We are of the considered view that the learned Trial Court has clearly erred in convicting the accused appellant - Pawan for the offence under Sections 302/34 of the IPC and 4/25 of the Arms Act and accused Chothmal and Narain for offence under Section 302/34 of IPC. Thus, the appeals filed by the accused appellants deserve to be allowed and the same are accordingly, allowed. The impugned judgment and sentence dated 08.01.2016 is quashed and set aside. The conviction of appellant - Pawan for offence under Sections 302/34 of IPC and Section 4/25 of the (Downloaded on 11/11/2023 at 07:43:31 PM) [2023:RJ-JP:19628-DB] (11 of 11) [CRLA-438/2016] Arms Act and the conviction of the accused appellants - Chothmal and Narayan for offence under Section 302/34 are quashed and set aside. Consequently, all the accused appellants are acquitted of the charges levelled against them. The appellants, who were on bail, their bail bonds stand cancelled.
20. Appellants are directed to furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.
(ANIL KUMAR UPMAN),J (PANKAJ BHANDARI),J
SUNIL SOLANKI /PS
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