Ninnu @ Narain And Ors vs State
2022 Latest Caselaw 7884 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                D.B. Criminal Appeal No. 316/1989

1. Ninnu @ Narain son of Lekhraj
2. Lekhraj son of Nauhwat
Residents of Tamrer, Police Station Kumher, District Bharatpur.
(At present in Central Jail, Jaipur)
                                                       ----Accused Appellants
                                   Versus
The State of Rajasthan
                                                                ----Respondent

Connected With D.B. Criminal Appeal No. 457/1989 The State of Rajasthan

----Appellant Versus

1. Lekhraj S/o Shri Nohvat

2. Ninnu @ Narain S/o Shri Lekhraj

3. Phool Singh S/o Shri Lekhraj Resident of Tamrer, Thana Kumher, District Bharatpur.

----Respondents

For Appellant(s) : Mr. Rinesh Kumar Gupta with Mr. Kapil Bhardwaj Ms. Savita Nathawat Mr. Anoop Meena & Mr. Gaurav Sharma in D.B. Criminal Appeal No.316/1989 Mr. Javed Choudhary, Additional G.A.

in D.B. Criminal Appeal No.457/1989 For Respondent(s) : Mr. Javed Choudhary, Additional G.A.

in D.B. Criminal Appeal No.316/1989 Mr. Rinesh Kumar Gupta with Mr. Kapil Bhardwaj Ms. Savita Nathawat Mr. Anoop Meena & Mr. Gaurav Sharma in D.B. Criminal Appeal No.457/1989 For Complainant(s) : Mr. Mohit Balwada

(2 of 9) [CRLA-316/1989]

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE SAMEER JAIN

Judgment

RESERVED ON :: 23/11/2022 PRONOUNCED ON :: 19/12/2022

1. The accused appellants have preferred D.B. Criminal Appeal

No.316/1989 aggrieved by the judgment and sentence dated

23.08.1989 passed by the Additional Sessions Judge No.1,

Bharatpur in Sessions Case No.21/88 (94/88) whereby the

appellants have been convicted under Section 302/34 IPC and

have been sentenced for life imprisonment and a fine of Rs.500/-

each and in default of payment of fine, to further undergo 6

months rigorous imprisonment. The State has also preferred D.B.

Criminal Appeal No.457/1989 aggrieved by the judgment and

sentence dated 23.08.1989 passed by the Court below by which

the accused persons have been acquitted for the offence under

Section 394/34 IPC and also accused Phool Singh has been

acquitted for the offence under Section 302/34 IPC.

2. Succinctly stated the facts of the case are that an FIR was

registered on 05.07.1988 whereby three persons, namely,

Lekhraj, Ninnu @ Narain and Phool Singh, were named as the

assailants. The allegation in the FIR is that complainant - Jagdish

(PW-1) was going with deceased Brijender Singh on his bicycle.

Accused Lekhraj and Ninnu also came on bicycle and Ninnu

appeared from a pit with a firearm in his hand and he fired at

Brijender, which hit Brijender on his right arm. Brijender got down

from the bicycle and ran, on which Lekhraj hit Brijender with an

(3 of 9) [CRLA-316/1989]

axe on which Brijender fell down. Thereafter, Phool Singh hit

Brijender with a lathi and Ninnu hit him with butt of the pistol.

3. It is also mentioned in the FIR that Lekhraj, Phool Singh and

Ninnu took away the bicycle, wrist watch and gold ring of

deceased Brijender. The police after registering the case

conducted investigation and submitted a charge-sheet against

accused Lekhraj, Ninnu and Phool Singh. The charges were framed

against the present appellants and Phool Singh for offence under

Sections 302/34 and 394/34 IPC. The present accused appellants

and Phool Singh denied the charges and sought trial, upon which

the prosecution examined as many as 20 witnesses and

documents were also exhibited on behalf of the prosecution. The

accused were examined under Section 313 Cr.P.C. Learned Court

below after hearing the arguments have acquitted accused Phool

Singh from all the charges and also acquitted the present

appellants for offence under Section 394/34 IPC, but had

convicted the present appellants for offence under Section 302/34

IPC, aggrieved by which the present appeal has been preferred by

the accused appellants Ninnu and Lekhraj. The State has also

preferred an appeal aggrieved by the acquittal of Phool Singh and

of acquittal of Lekhraj and Ninnu for offence under Section 394/34

IPC.

4. Heard learned counsel for the parties.

5. It is contended by the counsel for the accused appellants -

Lekhraj and Ninnu that the alleged eye-witnesses were in fact not

present at the time of the incident. It is also contended that the

allegation against Ninnu is of opening fire at the deceased

whereas, there are no gunshot injuries on the person of the

deceased. It is further contended that the deceased has sustained

(4 of 9) [CRLA-316/1989]

as many as 7 injuries as is evident from the statement of Dr. Ajay

Kapoor (PW-7), who has stated that deceased has sustained 2

puncture wounds, 1 beneath the right eye and other at the

juncture of forehead and nose; the other injuries sustained by the

deceased are fracture of right and left parietal bone, fracture of

little finger and there was also a cut wound on the right thigh. The

middle finger and index finger of the right hand was also crushed.

6. It is contended by the counsel for the accused appellants

that the puncture wound could not have been caused by the axe,

lathi and pistol. It is also contended that all the eye-witnesses are

relatives of the deceased. There is no independent witness to the

incident. The recovery also creates doubt. It is further contended

that appellant - Lekhraj is around 96 years old and the Court

below has come to the conclusion that the offence under Section

394/34 IPC is not made out, hence, the story that the deceased

was shot to commit the offence of robbery is disbelieved by the

trial Court. It is contended that there was a property dispute

between the complainant and accused side and for that reason, a

false case has been registered against the accused appellants.

7. Learned counsel appearing for the complainant has opposed

the appeal filed by the accused appellants. It is contended that the

FIR was lodged on the same day without any delay and in the FIR,

names of the accused appellants were mentioned as assailants.

There is no justification in not believing the facts narrated in the

FIR. It is also contended that all the witnesses have clearly stated

that the accused appellants and Phool Singh were present and

they have given beating to the deceased.

8. Learned Additional Government Advocate appearing for the

State has also supported the judgment passed by the Court below

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wherein it has convicted the accused appellants under Section

302/34 IPC, however, he has prayed that accused Phool Singh

whose name is also appearing in the FIR and whose role is evident

from the statement of the eye-witnesses should also be convicted

for the offence under Section 302/34 IPC.

9. We have considered the contentions raised by the counsel for

the parties and have also gone through the material on record.

10. We would first like to discuss the injuries sustained by the

deceased and the evidence of the doctor in this regard. The

deceased has sustained 2 puncture wounds, 1 beneath the right

eye and 1 on the juncture of forehead and nose. Dr. Ajay Kapoor

(PW-7) has clearly stated in his cross-examination that the above

two injuries cannot be caused by barrel of the pistol. With regard

to injury Nos.3 and 4 i.e. sustained on the right and left parietal

region, it has been stated that the same cannot be caused by an

axe, which was also shown to the doctor in the Court. The cause

of death as per the doctor is injury Nos.1 and 2 - puncture

wounds. As per the prosecution version, Jagdish (PW-1), Nawal

Singh (PW-2), Kalawati (PW-3) and Phool Singh (PW-18) are the

eye-witnesses to the incident. Jagdish (PW-1), who is the author

of the FIR has stated that Ninnu caused injury Nos.1 and 2

mentioned hereinabove by the barrel of the pistol. However, this

witness in the FIR has mentioned that Ninnu hit the deceased with

the butt of pistol. Nawan Singh (PW-2) has stated that Ninnu hit

the deceased with the butt of the pistol. Kalawati (PW-3) has

stated that Ninnu caused injuries to the deceased with the barrel

of the pistol. Phool Singh (PW-18), brother of the deceased, has

also stated that Ninnu hit the deceased with the barrel of the

pistol. The evidence of these witnesses is not corroborated with

(6 of 9) [CRLA-316/1989]

the medical evidence produced before the Court below as the

doctor has clearly stated that injuries causing death i.e. injury

Nos.1 and 2 cannot be caused by the barrel of the pistol. With

regard to injury Nos.3 and 4, doctor has clearly stated that these

injuries cannot be caused by the axe. The conduct of the

witnesses in this case is unnatural as the related witneses i.e.

brother and wife of the deceased have stated that they stopped in

a field away from the incident and witnessed the incident from a

distance. Relatives not running to help the injured deceased, is an

unnatural conduct. The injuries assigned to the accused is not

corroborated by the medical evidence produced before the Court

below.

11. Learned trial Court while dealing with the offence under

Section 394/34 IPC has also observed that the conduct of the

witnesses is unnatural. The recovery from the residence is also

doubtful and the statement of the witness - Kalawati (PW-3) that

the finger was amputated by Ninnu to take the ring is also not

supported with the medical evidence as the doctor has clearly

stated that there was no amputation of the finger. Learned trial

Court has also observed that the offence of robbery is not made

out for the very reason that the accused were known to the

complainant side, they were already having the property dispute

and the fact that in broad day light, robbery and assault would be

committed in presence of the witnesses is an unlikely event.

12. It is pertinent to note that the entire recovery was effected

from the residence of the accused appellants. Initially, both the

appellants were arrested on 06.07.1988. Certain information was

given on 09.07.1988 and on the basis of those information,

recovery was effected on 09.07.1988 itself. Thereafter, other

(7 of 9) [CRLA-316/1989]

information under Section 27 of the Evidence Act was recorded on

10.07.1988 and recovery was effected on 10.07.1988 from the

same residence. It is well settled proposition of law that if the

recovery is made from the same place in different time, the same

becomes doubtful. In the present case, the wrist watch was

recovered on 10.07.1988 i.e. after recovery was effected on

09.07.1988 from the same residence belonging to the accused.

Recovery of blood stained clothes of Ninnu was effected on

06.07.1988, but surprisingly no FSL report was produced before

the Court below to establish that the blood stained clothes were

matching with the blood group of deceased. No FSL report of the

weapon of offence i.e. axe was also produced before the Court

below to establish that the axe was blood stained. The Court

below after elaborately discussing the matter, has rightly come to

the conclusion that the offence under Section 394/34 IPC is not

made out against the accused appellants. The appeal of the State

against the acquittal under Section 394/34 IPC is, therefore,

without any basis.

13. As far as offence under Section 302/34 IPC is concerned, the

injuries which have been assigned to the appellants are not

corroborated by the medical evidence. The witnesses who have

posed themselves as witnesses are not reliable as their conduct is

very unnatural. The fact that there was enmity between the

complainant and the accused side may be one of the reason for

falsely implicating the accused with whom they were having the

property dispute.

14. Learned trial Court has observed that the eye-witnesses are

not reliable and in spite of giving this finding, the trial Court has

clearly erred in convicting the present appellants for the offence

(8 of 9) [CRLA-316/1989]

under Section 302/34 IPC. Jagdish (PW-1), in the FIR lodged by

him, has mentioned that Ninnu opened fire which hit the deceased

on the right side of chest, however, the deceased has not

sustained any gunshot injuries. The witness thereafter in the Court

has stated that the deceased put his hands on the chest and side,

therefore, he was under the impression that the deceased has

sustained gunshot injury on the right of his chest. The statement

of Jagdish (PW-1) that he ran away from the place of incident also

creates doubt. This witness has also stated that he was not known

to the deceased and it was for the first time that he was going

with him on his bicycle. All the other witnesses in this case are

chance witnesses. It is also pertinent to note that these witnesses

have stated that 30-40 villagers came on trolley and took the

deceased to the hospital on the said trolley. None of the witnesses

from the trolley have been examined before the Court below. The

tractor was also not seized to establish that the dead body was

carried on the tractor. The entire story, therefore, comes under a

cloud of doubt.

15. We, therefore, deem it proper to allow the appeal filed by the

accused-appellants and dismiss the appeal filed by the State. In

consequence thereof, the judgment and sentence passed by the

Court below to the extent the Court has convicted for offence

under Section 302/34 IPC is quashed and set aside. The

appellants are acquitted of the charges levelled against them. The

bail bonds earlier submitted by the accused-appellants shall stand

cancelled.

16. Appellants- Ninnu and Lekhraj are directed to furnish

personal bond in the sum of Rs.50,000/- each and a surety bond

in the like amount in accordance with Section 437-A of Cr.P.C.

(9 of 9) [CRLA-316/1989]

before the Deputy 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.

                                   (SAMEER JAIN),J                                           (PANKAJ BHANDARI),J

                                   SUNIL SOLANKI /PS









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