Rajasthan High Court - Jodhpur
Shanker Lal And Ors vs State on 17 November, 2022
Bench: Sandeep Mehta, Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 582/2013
1. Shankar Lal S/o Shri Kashi Ram, by caste Jat, R/o Balrajpur,
Police Station Padampur, District Sri Ganganagar
2. Mahender Pal S/o Shri Brijpal, by caste Jat, R/o Balrajpur,
Police Station Padampur, District Sri Ganganagar.
3. Hanuman Prasad, S/o Shri Brijpal, by caste Jat, R/o
Balrajpur, Police Station Padampur, District Sri Ganganagar.
----Appellants
Versus
State of Rajasthan through Public Prosecutor
----Respondent
For Appellant(s) : Mr. Nishant Bora
Mr. Rakesh Gehlot
For Respondent(s) : Mr. R.R. Chhaparwal, PP
Mr. Jagdish Kumar Bishnoi for
complainant.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE FARJAND ALI
JUDGMENT
Judgment pronounced on ::: 17/11/2022
Judgment reserved on ::: 23/09/2022
BY THE COURT : (PER HON'BLE MEHTA, J.)
The appellants herein have been convicted and sentenced as
below vide judgment dated 11.07.2013 passed by learned Special
Judge, SC/ST (Prevention of Atrocities) Act Cases, Sri Ganganagar
in Sessions Case No.95/2012:-
(2 of 14) [CRLA-582/2013]
Appellant :- Shankar Lal
Offence Sentences Fine Sentence in lieu of
under default of payment of
Section fine
302 IPC Life Imprisonment Rs.2,000/- 6 Months' Additional
S.I.
341 IPC 1 Month's SI - -
3/25(1-B)(A) 1 Year's RI Rs.1,000/- 3 Months' Additional SI
Arms Act
27 Arms Act 3 Years' RI Rs.2,000/- 6 Months' Additional SI
Appellants :- Mahender Pal and Hanuman Prasad
Offence Sentences Fine Sentence in lieu of
under default of payment of
Section fine
302/34 IPC Life Imprisonment Rs.2,000/- 6 Months' Additional SI
341 IPC 1 Month's SI - --
They have preferred the instant appeal under Section 374
(2) Cr.P.C. for assailing the impugned judgment of conviction and
order of sentences passed against them by the trial court.
Briefly stated facts relevant and essential for disposal of the
instant appeal are noted hereinbelow:-
PW.15 Shri Ramswaroop lodged a typed report (Ex.P/41) at
the Police Station Padampur on 03.09.2012 at about 10:30 PM
alleging inter alia that ten days ago, a quarrel had taken place
between Mahender S/o Shri Brijlal Tarad, resident of Balrajpura on
one side and Shailendra and Sunil, sons of Sultan Ram, Sandeep
(3 of 14) [CRLA-582/2013]
son of the complainant owing to the issue of giving side to a
motorcycle. Slaps and fist blows had been exchanged between the
parties in this process. Bearing the said enmity in mind, on
03.09.2012 at about 6 O' Clock in the evening, the accused party
comprising of Mahender Tarad and Shankar Tarad, sons of Kashi
Ram Jat came to the bus stand nearby their house and hurled
abuses that the members of the complainant party would have to
be taught a lesson. The complainant, his brother Sultan Ram, his
son Sandeep and nephews Shailendra and Sunil Kumar all
proceeded to the bus stand and requested the accused to refrain
from using profane language on which, a fight broke out between
the two parties. The complainant and his brother Sultan Ram
intervened and pacified the quarreling parties. Mahender Pal and
Shankar lal left the spot threatening that they were coming back
and the complainant party should wait for the consequences. At
about 7:15, Mahender and Hanuman, sons of Brij Lal, Shankar
and Rameshwar Lal, sons of Kashiram, Mohanlal son of Dayalram,
and Arjun Jat came around in a white jeep. The accused Shankar
Lal was carrying a pistol and others were armed with lathis and
swords. The complainant and his family members were sitting on
a platform outside their house near the bus stand. The accused
made exhortations and started beating Shailendra, son of Shri
Sultan Ram, complainant's nephew. Shailendra started running
towards his house on which, the accused Mahender Pal and
Hanuman Prasad caught him and told Shankar Lal to fire the
gunshot. Shankar Lal fired his weapon from close range and the
resultant gunshot hit on the left side of Shailendra who fell down.
(4 of 14) [CRLA-582/2013]
Thereafter, the accused started assaulting the complainant and
Shailendra by lathis. In this melee, the complainant's son Sandeep
Kumar, nephew Sunil Kumar and brother Sultan Ram also received
injuries. The assailants fled away in their jeep. The injured
persons were boarded on to a jeep and were taken to the
Government Hospital, Padampur where the doctor declared that
Shailendra had expired. Sandeep Kumar and Sunil Kumar were
admitted into the hospital. It was further alleged that the
assailants hurled caste based abuses towards the complainant
party and beat them. The complainant's nephew Shailendra was
shot at and was killed.
On the basis of this report, a formal FIR No.212/2012
(Ex.P/42) was registered and investigation was commenced. The
Investigating Officer, conducted spot proceedings and recorded
statements of witnesses. The dead body of Shailendra was
subjected to autopsy at the Government Hospital, Padampur and
the postmortem report (Ex.P/39) was procured. Usual recoveries
were effected. Upon concluding investigation, the IO found that
the accused Rameshwar Lal who was named in the FIR was not
present at the spot and thus, he was not charge-sheeted. The
accused Mohan Lal was a juvenile and thus, charge-sheet against
him was filed in the Juvenile Justice Board concerned.
Charge-sheet was filed against the appellants herein and Arjun
Ram for the offences punishable under Sections 147, 148, 341,
323, 326, 302/149 IPC and Sections 3(1)(x), 3(2)(v) of the SC/ST
(Prevention of Atrocities) Act and as the offence under Section 3
(5 of 14) [CRLA-582/2013]
of the SC/ST (Prevention of Atrocities) Act had been applied in the
charge-sheet, the case was committed to the Court of Special
Judge, SC/ST (Prevention of Atrocities) Act Cases, Sri Ganganagar
for trial where charges were framed against the accused
appellants Mahender Pal, Hanuman Prasad and the co-accused
Arjun Ram for the offences punishable under Sections 147, 148,
341, 302/149, 323, 323/149, 326, 326/149 IPC and Sections 3(1)
(x) and 3(2)(v) of the SC/ST (Prevention of Atrocities) Act
whereas charges for the offences punishable under Sections 147,
148, 341, 302, 323, 326/149 IPC and Sections 27 & 3/25 (1-B)
(A) of the Arms Act were framed against the accused appellant
Shankar Lal. The accused pleaded not guilty and claimed trial. The
prosecution examined 21 witnesses and exhibited 61 documents
to prove its case. The accused were questioned under Section 313
Cr.P.C. and were confronted with the circumstances appearing
against them in the prosecution evidence which they denied and
claimed to be innocent. However, no witness was examined in
defence. After hearing the arguments advanced by the Public
Prosecutor and the defence counsel and appreciating the evidence
available on record, the trial court by judgment dated 11.07.2013
proceeded to convict and sentence the appellants as above whilst
the accused Arjun Ram was acquitted by giving him the benefit of
doubt. The instant appeal under Section 374 (2) Cr.P.C. has been
preferred to assail the impugned judgment and order whereby, the
trial court convicted and sentenced the accused appellants as
above.
(6 of 14) [CRLA-582/2013]
Shri Nishant Bora, learned counsel representing the
appellants, vehement and fervently contended that the entire
prosecution case is false and fabricated. The prosecution
witnesses have suppressed the genesis of occurrence. The IO
collected the call details and found that the accused Rameshwar
Lal who was specifically named in the FIR as well as in the
investigational statements of the witnesses was actually not
present at the spot and had been falsely implicated by the
complainant party and accordingly, he was not charge-sheeted.
The prosecution made no effort whatsoever to file application
under Section 319 Cr.P.C. to summon the exonerated accused
Rameshwar Lal as an additional accused. The trial court,
thoroughly appreciated the evidence available on record and
acquitted the accused Arjun Ram of the charges on the same set
of evidence which was relied upon to convict the accused
appellants herein for the crime. He further submitted that the
allegation levelled by the prosecution witnesses that the accused
appellants Mahender Pal and Hanuman Prasad caught hold of the
deceased Shailendra and while they were in this position, the
accused Shankar Lal fired the gunshot at Shri Shailendra is totally
unbelievable. He contended that Shankar Lal was allegedly armed
with a country-made gun which releases pellets upon being fired.
Thus, there is no possibility that the accused Mahender Pal and
Haunman Prasad would take the risk of holding on to the victim
while the accused Shankar Lal was intending to fire at him
because in this process, they themselves would run an imminent
risk of getting injured by the resultant gunshot. Shri Bora further
submitted that in the FIR and the investigational statements, the
(7 of 14) [CRLA-582/2013]
complainant and the witnesses came out with a case that the
gunshot was fired by the accused Shankar Lal at Shailendra while
he was in the clutches of accused Mahender Pal and Hanuman
Prasad but during the trial, while realizing that this allegation was
bound to be disbelieved as being totally concocted and grossly
unacceptable, the prosecution witnesses modulated their stance
and alleged that though these two accused were holding the
victim but Shankar Lal exhorted that the victim should be released
and thereafter, he would fire. No sooner Shankar Lal stated so,
the appellants Mahender Pal and Hanuman Prasad released
Shailendra from their clutches and he started running away. From
a distance of about 8-10 feet, Shankar Lal fired his country-made
pistol which hit Shailendra on the left side and he fell down at the
spot. Shri Bora submitted that this material improvement made by
the prosecution witnesses in their story completely demolishes
their evidentiary worth qua the appellants Mahender Pal and
Hanuman Prasad and hence, they deserve to be acquitted. He
further submitted that even qua the accused Shankar Lal, the
evidence of the prosecution witnesses is flimsy and untrustworthy.
The material prosecution witnesses claimed that gunshot which hit
Shailendra was fired from a distance of 8-10 feet but the medical
evidence absolutely contradicts their version on the aspect of
distance of fire. Shri Bora further submitted that the prosecution is
guilty of suppressing material evidence because the star
prosecution witness Sultan Ram was not examined during trial. On
these grounds, Shri Bora implored the Court to accept the appeal,
set aside the impugned judgment and acquit the accused
appellants of the charges.
(8 of 14) [CRLA-582/2013]
Per contra, learned Public Prosecutor and Shri Jagdish
Bishnoi, Advocate representing the complainant vehemently and
fervently opposed the submissions advanced by the appellants'
counsel. They urged that there was no enmity between the
complainant party and the accused and thus, the claim of the
defence counsel that the complainant party indulged in false
implication of the accused for the incident is totally unfounded.
The murder was fueled with revenge for the earlier incident of
road-rage which took place between the parties on 3 rd September.
The prosecution witnesses gave truthful evidence and did not try
to make any exaggeration whatsoever. The FIR was filed promptly
and hence, there is no reason to doubt the testimony of the
prosecution witnesses. They contended that the trial court
appreciated the evidence in an apropos manner and the well
reasoned judgment does not warrant any interference in appeal.
We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the material
available on record and have thoroughly re-appreciated the
evidence led by the prosecution.
At the outset, we may note that right from inception of the
case i.e., lodging of the FIR till the investigational statements and
the sworn testimony of the material prosecution eye-witnesses
Ramswaroop (PW.15) the first informant, Sunil Kumar (PW.16)
and Sandeep Kumar (PW.17), it is a consistent version that the
fatal gunshot was fired at the deceased Shailendra by the accused
Shankar Lal. To this extent, we have thoroughly appreciated the
(9 of 14) [CRLA-582/2013]
evidence of the three eyewitnesses and find that they have
consistently stated that Shankar Lal fired the gunshot from a
country-made pistol which hit on the left side of chest of Shri
Shailendra. The Medical Jurist Dr. Baldev Singh (PW.12) proved
the postmortem report of Shailendra (Ex.P/39) taking note of a
single firearm entry-wound below the left nipple of lateral side
admeasuring 5 cm x 4 cm x cavity deep with inverted edges. The
wound comprised of 25 lacerations admeasuring 0.25 cm to 0.75
cm. Seven pellets were recovered from inside both the lungs. The
medical jurist opined that the injury was sufficient in ordinary
course of nature to cause death. In cross-examination, the
witness stated that the gunshot wound was not having any marks
of blackening. It is thus clear that the cause of death of Shailendra
has been well established by the prosecution as being a gunshot
wound and that the fire was made from a country-made pistol
which fires pellets as projectiles. Since the wound noted by the
medical jurist in the postmortem report (Ex.P/39) did not have
any blackening marks, it can be presumed that the gunshot must
have been fired from a distance of more than four feet. Though
the prosecution eyewitnesses have modulated their stance
regarding the distance of fire but this slight deviation in the matter
of distance from where the gunshot was fired cannot be
considered as totally discrediting the evidentiary worth of the
witnesses.
The defence has not claimed that there existed any
significant prior enmity between the parties. In addition to the fact
that the prosecution eyewitnesses have given consistent evidence
(10 of 14) [CRLA-582/2013]
specifically attributing the fire-arm injury to the accused Shankar
Lal, we may note that the IO Shri Sahiram Bishnoi (PW.13) gave
convincing evidence regarding disclosure statement made by the
accused Shankar Lal (Ex.P/50) leading to the recovery of a 12
bore country-made pistol vide seizure memo (Ex.P/15). The pistol
was forwarded to the forensic science laboratory from where a
report (Ex.P/58) was received concluding that the recovered
weapon was serviceable. Thus, the factum of recovery of the
firm-arm which was capable of firing pellet like projectiles which
were recovered from the body of Shri Shailendra corroborates the
evidence of material eyewitnesses to the extent they alleged that
the accused Shankar Lal fired the gunshot which hit the deceased
Shailendra and proved fatal. Hence, we are convinced that the
prosecution has proved by unimpeachable evidence that the
accused Shankar Lal fired shot from a country-made weapon
hitting Shri Shilendra on the left side of his chest leading to his
death.
Now we proceed to consider the evidence of the material
prosecution witnesses qua their claim wherein, it was stated that
the accused appellants Mahender Pal and Hanuman Prasad had
caught hold of Shailendra at the time of the incident making them
vicariously liable for the murder of Shailendra. In this regard, we
may at the outset note that the informant, while lodging the FIR,
involved Rameshwar Lal in addition to the accused Shankar Lal,
Mahender Pal and Hanuman Prasad and the juvenile Mohan Lal for
the crime. However, pursuant to collection of the call detail
records showing presence of Shri Rameshwar Lal elsewhere, the
(11 of 14) [CRLA-582/2013]
IO did not find him involved in the crime and he was exonerated.
Thus, there is a significant chink in the armour of the prosecution
case to the extent of involvement of accused other than Shankar
Lal. Qua the appellants Mahender Pal and Hanuman Prasad also, it
may be noted that while lodging the FIR (Ex.P/42), a pertinent
allegation was levelled by the complainant that the accused
appellants Mahender Pal and Hanuman Prasad caught hold of
Shailendra and gave an exhortation to Shankar Lal to make the
fire whereafter he shot the weapon hitting Shailendra on the left
side of his chest. However, on the face of record, this allegation
as set out in the FIR and reiterated in the investigational
statements of the witnesses is prima facie unbelievable because
looking to the nature of weapon held by Shankar Lal, it was a
foregone conclusion that the resultant fire would lead to the
projectiles being hurled with great velocity and the pellets would
also spread around. Shri Shailendra was a young healthy man and
he would not stay stationary if he had been caught and would
definitely try to struggle and in this process, despite two of the
accused persons having caught hold of Shri Shailendra, the main
accused Shankar Lal could not have been assured that the shot
fired by him would not hit his own companions. Thus, to this
extent, the allegation levelled in the FIR that the two accused
Mahender and Hanuman caught hold of Shri Shailendra and in this
very situation, Shankar Lal fired the gunshot upon exhortation
which hit the deceased Shailendra is bound to be discarded. It
seems that during trial, the prosecution witnesses received advise
and changed this stance in their sworn testimony and modulated
the sequence of events by alleging that initially, the accused
(12 of 14) [CRLA-582/2013]
appellants Mahender Pal and Hanuman Prasad had caught hold of
Shailendra and were calling out to Shankar Lal that he should fire.
Shankar Lal in turn stated that first the victim should be released
and then he would fire the gunshot. On receiving this instruction,
the accused Mahender Pal and Hanuman Prasad released
Shailendra who started running away and Shankar Lal fired the
country-made pistol hitting Shailendra on the left side of his chest.
This apparent modulation made by the prosecution witnesses in
form of an improvement qua the role attributed of the appellants
Mahender Pal and Hanuman Prasad is absolutely unacceptable. In
addition thereto, we may state that PW.15 Ramswaroop, the first
informant admitted in his cross-examination that initially he gave
a hand written report which was not on record. Hence, clearly, the
original FIR was also concealed by the prosecution. The same
modulation which was made by Shri Ramswaroop (PW.15) was
adopted by Sunil Kumar (PW.16) and Sandeep Kumar (PW17).
Apparently thus, the witnesses have given a parrot like version
verbatim adopting the above-mentioned material improvement.
We are of the firm view that this consciously designed
improvement in the version of the prosecution witnesses creates
a grave doubt on their testimony to the extent they tried to
implicate the accused appellants Mahender and Hanuman Prasad.
The witnesses also stated about presence and active
participation of Rameshwar Lal and Arjun Ram in the self-same
incident. Whilst Rameshwar Lal was not even charge-sheeted, the
accused Arjun Ram stands acquitted by the learned trial court by
the same judgment, which is assailed in this appeal. Thus, to the
(13 of 14) [CRLA-582/2013]
extent of involvement of the accused appellants Mahender Pal and
Hanuman Prasad, the evidence of the material prosecution
eyewitnesses is fit to be and is hereby discarded. The finding
recorded by the trial court holding these two appellants guilty for
the offences punishable under Sections 341 IPC and 302/34 IPC is
per se unsustainable and hence is overturned. However, conviction
of accused Shankar Lal does not warrant any interference. Hence,
to that extent the impugned judgment dated 11.07.2013 is
affirmed.
The appeal is partly allowed in these terms. The accused
appellants Mahender Pal and Hanuman Prasad are on bail. They
need not surrender. Their bail bonds are discharged.
However, keeping in view the provisions of Section 437-A
Cr.P.C., the accused appellants Mahender Pal and Hanuman Prasad
are directed to furnish a personal bond in the sum of Rs.15,000/-
each and a surety bond in the like amount before the learned trial
court which shall be effective for a period of six months to the
effect that in the event of filing of a Special Leave Petition against
the present judgment on receipt of notice thereof, the appellants
shall appear before the Supreme Court.
Record be returned to the trial court forthwith.
(FARJAND ALI),J (SANDEEP MEHTA),J
Sudhir Asopa/-
(14 of 14) [CRLA-582/2013]
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