Rajasthan High Court - Jodhpur

Kishore Singh vs State Of Rajasthan ... on 19 May, 2023

Bench: Manoj Kumar Garg

[2023/RJJD/016566]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 2383/2023

Kishore Singh S/o Raghunath Singh, Aged About 43 Years, Balod Chhoti, P.s. Fatehpur, Dist. Sikar (Raj.)

----Petitioner Versus State Of Rajasthan, Through PP

----Respondent

For Petitioner(s) : Mr. Vinod Kumar Sharma For Respondent(s) : Mr. Vikram Sharma, PP

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

REPORTABLE 19/05/2023

Instant misc petition has been filed by the petitioner for

quashing of non-bailable standing warrant issued against the

petitioner so also the supplementary chargesheet qua the

petitioner in connection with FIR No. 225/2014 registered at Police

station Parbatsar, District Nagaur for offence under Sections 147,

148, 149, 323, 395, 302 and 120B IPC alongwith Section 3/25 of

Arms Act.

Brief facts of the case are that a complaint came to be filed

by the complainant that he received a phone call from his son's

mobile, upon answering the same, one Govind colleague of

complainant's son at Government school informed that when he

alongwith Rajendra was going on motorcycle from Parbatsar to

Bhavsiya, a white car with no registration number plate hit the

motorcycle. Due to the impact, they fell down. It was alleged that

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one of the persons sitting in the car took out a small gun and fired

at Rajendra which hit his chest. Thereafter, another person came

out of his car and fired at Rajendra which hit his arms and he fell

down. It was alleged that these persons also attacked him with

sticks. It was further alleged that the out of long standing enmity,

the accused persons had killed his son.

On the basis of aforesaid complaint, an FIR was registered at

Police station, Parbatsar for offence under Section 147, 148, 149,

323, 382, 302 IPC and investigation commenced. After

investigation, the police filed chargesheet against the other

accused persons and a supplementary chargesheet was filed

against the petitioner under Section 299 Cr.P.C. The petitioner

was declared as absconder and the proceedings under Section 82

Cr.P.C. was also started against the petitioner and standing

warrant was issued against the petitioner.

Counsel for the petitioner submits that the petitioner is

innocent and he has been implicated in this false case only on the

basis of call details and there is no direct evidence against the

petitioner. It is further argued that the main accused against

whom allegations were of murdering deceased Rajendra have

already been acquitted by the court of learned Additional Sessions

Judge No.1, Parbatsar vide judgment dated 03.09.2022 and the

present accused petitioner has been implicated only with the aid

of Section 120B IPC. Therefore, since there it is prayed that since

the main accused have been acquitted, therefore, there is not

chance of the present petitioner being convicted and any

proceeding/trial against the petitioner will be nothing but futile

exercise. therefore, it is prayed that the non-bailable standing

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warrant as well as supplementary chargesheet qua the petitioner

may be quashed and set aside alongwith consequential

proceedings. Learned counsel for the petitioner relied on decision

of Hon'ble Apex Court in the case of CBI Vs. Akhilesh Singh

reported in (2005) 1 SCC 478, Karnataka High Court in the case of

Muneer Ahmed Qureshi Vs. State of Karnataka reproted in

2002(1) KCCR 1 and Salman @ Shameer Vs. State of Karnataka

(W.P. No. 25286/2018) decided on 13.07.2018.

Learned Public Prosecutor opposed the prayer made by the

petitioner and contended that there is conspiracy between the

present petitioner and the co-accused in commission of crime.

Therefore, he has to face the trial and prayed for dismissing the

petition.

I have heard learned counsel for the parties and considered

the material available on record.

In the present case, the petitioner was declared proclaimed

offender as he went abroad and standing warrant has been issued

against the petitioner. During the interregnum, the trial that

proceeded against the co-accused of the petitioners culminated in

their acquittal. The question for consideration is whether it is

expedient and in the interest of justice to quash the proceedings

wherein, the chances of conviction against the petitioner is very

weak and no useful purpose is likely to be served by allowing the

criminal prosecution to be continue against the petitioner when

the main accused have already been acquitted by the court below.

[2023/RJJD/016566] (4 of 7) [CRLMP-2383/2023]

The learned counsel for the petitioner has relied upon the

judgment in the case of Akhilesh Singh (supra) wherein the

Hon'ble Apex Court held at paragraph 5 as under :-

"The police recovered some bullets from the place of occurrence and also from the dead body of deceased Syed Modi. The police also recovered a point 38 bore revolver pursuant to the confession made by Amar Bahadur Singh. A point 9 mm pistol was recovered at the instance of accused Bhagwati Singh @ Pappu. On the basis of the material available with the investigating agency, they filed a charge sheet against the respondent. It is interesting to note that the original accused Dr. Sanjay Singh and Mrs. Amita Kulkarni were implicated as accused, but both of them were discharged by an order passed by the Sessions Judge and that order of discharge was challenged by the State before the High Court unsuccessfully. A Special Leave Petition also was filed before this Court and that too ended in dismissal on 27.1.1994. Therefore, the very basis of the alleged conspiracy by the respondent with Dr. Sanjay Singh lost its substratum. Admittedly, the respondent was not present at Lucknow when the incident happened.

Respondent was implicated in the case on the basis of the alleged conspiracy between himself and the original accused Dr. Sanjay Singh. There is no other material placed before the court to prove the complicity of the respondent. Mr. Ram Jethmalani, learned Senior Advocate appearing on behalf of the respondent drew our attention to the various reasons given by the learned Single Judge for passing the impugned order. There was no direct evidence to show that the respondent had supplied the weapons and rendered assistance to the assailants in carrying out

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the common object of killing Syed Modi. Had the conspiracy charge been established, at least some of the acts and conduct of the respondent could have been made admissible under the provisions of Section 10 of the Evidence Act. Once the main accused, who is alleged to have hatched the conspiracy and who had the motive to kill the deceased was discharged, and when that matter had attained finality, the learned Single Judge was fully justified in holding that no purpose would be served in further proceeding with the case against the respondent."

Similar view has been taken by Karnataka High Court in the

case of Muneer Ahmed Qureshi (supra) with the following

observation :-

"In so far as the argument of the learned Additional State Public Prosecutor that merely because some of the accused are acquitted that does not mean that other accused should not be acquitted is concerned, the pronouncement of the Apex Court in the case of Satkumar v. State of Haryana reported in AIR 1974 SC 294 is a guiding principle. It has been laid down that "there is no rule of law that if the Court acquits some of the accused on the evidence of a witness raising doubt with regard to them the other accused against whom there is absolute certainty about his complicity in the crime based on the remaining credible part of the evidence of that witness must be acquitted." Taking converse proposition of this in my view would be if the evidence alleged against the group of the accused is inseparable and indivisible one and if there is no individual complicity of an accused is shown prima facie then the Judgment of acquittal in respect of other accused in my view would certainly go to the rescue of the fourth accused also."

[2023/RJJD/016566] (6 of 7) [CRLMP-2383/2023]

In case of Salman @ Shameer (supra) also, the Karnataka

High Court has held as under :-

"11. On careful perusal of the materials on record, the

allegations made against the petitioner and other acquitted

accused persons are one and the same and they are

inseparable and indivisible in nature. The evidence that has

already placed by the prosecution and appreciated by the

trial court also reveals that, the allegations against the

petitioner are not distinct and separate when compared with

the other acquitted accused persons.

12. Under the above said facts and circumstances of the

case, considering the factual aspects of this case, no purpose

would be served if the petitioner is once again tried for the

same offence as the prosecution cannot put forth any better

evidence than the one already placed before the court and

appreciated by the trial court. Hence, the petitioner is also

entitled for the benefit of acquittal."

On perusal of the material on record, it is evident that the

evidence placed by the prosecution has already been appreciated

by the trial court and acquitted the other accused persons.

Therefore, since the allegations against the petitioner are not

distinct and separate when compared with other acquitted

persons, therefore, no purpose would be served, if the petitioner

is tried for the same offences as the prosecution cannot put forth

any better evidence than the one already placed before the trial

court and appreciated by the trial court, more so, when the

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present petitioner has been implicated with the aid of Section

120B IPC.