Pravindra Urf Leela And Anr vs State Of Rajasthan Through P P
2023 Latest Caselaw 5790 Raj/2

[2023:RJ-JP:27198-DB]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                  D.B. Criminal Appeal No. 641/2012

1. Pravindra @ Leela, S/o Mool Chand, R/o Tivala, Police Station
Charkhi Dadri, District Bhiwani (Harayana)
2. Kuldeep Sihag, S/o Baldev Singh, R/o Ward No.12, Siwani,
Police Station Siwani, District Bhiwani, (Haryana)
(At present in Central Jail, Bikaner)
                                                           ----Accused/Appellants
                                       Versus
State Of Rajasthan Through PP
                                                                     ----Respondent

Connected With D.B. Criminal Appeal No. 579/2012 Raghav Sahu @ Raghu @ Somveer, S/o Mahendra Singh, R/o Shyahdwa, Police Station Mangali District Bhiwani, At present D.C. Colony, near B.T.M. Mill, Bhiwani, Hariyana (At present confined at Central Jail, Jaipur)

----Accused/Appellant Versus State Of Rajasthan Through Pp.

----Respondent

For Appellant(s) : Mr. Sudhir Jain, amicus curiae, assisted by Mr. Parth Sharma, Mr. Parth Vashistha for Appellant No.1 in CRLA No.641/2012 Mr. Vishal Pareek for Mr. Deepak Chauhan for Appellant No.2 in CRLA No.641/2012 Mr. Sudhir Jain, amicus curiae assisted by Mr. Parth Sharma & Mr. Parth Vashistha in CRLA No.579/2012 For State : Mr. Javed Choudhary, Addl. GA

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL Judgment

Reserved on :: 04/10/2023 Pronounced on :: 10/10/2023

[2023:RJ-JP:27198-DB] (2 of 12) [CRLA-641/2012]

(Per Hon'ble Pankaj Bhandari, J)

1. Accused/appellants have preferred these Criminal

Appeals aggrieved by judgment of conviction and order of

sentence dated 11.04.2012 passed by Addl. Sessions Judge,

Khetri, whereby appellants have been convicted for offence under

Sections 332, 353, 336 R/w 34, 307/34, 302/34 of IPC and 3/25

of Arms Act and sentenced as under:

(i) For offence under Section 332 IPC:- three years rigorous imprisonment and fine of Rs.500/- each and in default of payment of fine, to further undergo one month additional simple imprisonment to each accused appellants.

(ii) For offence under Section 353 IPC:- two years rigorous imprisonment and fine of Rs.300/- each and in default of payment of fine, to further undergo 15 days additional simple imprisonment to each accused appellants.

(iii) For offence under Section 336 R/w 34 IPC:- three months simple imprisonment and fine of Rs.100/- each and in default of payment of fine, to further undergo three days additional simple imprisonment to each accused appellants.

(iv) For offence under Section 307/34 IPC:- ten years rigorous imprisonment and fine of Rs.3000/- each and in default of payment of fine, to further undergo, six months additional simple imprisonment to each accused appellants.

(v) For offence under Section 302/34 IPC:- life imprisonment and fine of Rs.5000/- each and in default of payment of fine, to further undergo, six months additional simple imprisonment to each accused appellants

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(vi) For offence under Section 3/25 Arms Act:- three years rigorous imprisonment and fine of Rs.500/- each and in default of non-payment of fine, to further undergo, one month additional simple imprisonment to each accused appellants.

All the sentences were directed to run concurrently.

2. Succinctly stated the facts of the case are that on

09.06.2010, the complainant- Udai Singh (PW-3), Sub Inspector

of Police, Surajgarh Police Station lodged a written report (Ex. P-

7) at Police Station Buhana, District Jhunjhunu with regard to an

incident alleged to have taken place on the same day wherein it

was stated that at around 11:15 am, a telephonic information was

received regarding four armed robbers looting and firing in Bank

of Baroda and that they are moving towards Kajla village in a

Swift car. He then intimated higher authorities and also contacted

Constable- Chandrabhan who confirmed his presence at village

Kajla. He then directed Constable- Chandrabhan to barricade the

road with the help of villagers in order to stop the robbers. Upon

reaching the spot along with other police personnel, he saw

Chandrabhan along with Ghanshyam Singh, Ummed Singh,

Himmat Singh present there and they had one accused in their

hold. He also saw that Chandrabhan had sustained bullet injury on

his shoulder. Chandrabhan then informed complainant- Udai Singh

(PW-3) that as he was barricading the area, a Swift car which was

being followed by some villagers in private vehicles arrived at the

place. The robbers were trying to flee, so Chandrabhan threw a

stone on the windshield which frightened the driver of the car. He

then opened the car door, took the accused- Parvinder (driver) out

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of the car and pushed him to the ground. It was then that other

accused fired at him from the back but he along with the villagers

still held onto the accused Parvinder. The other accused then kept

firing, fled the scene and some villagers followed them. A desi

katta was found on the person of accused- Parvinder.

Chandrabhan informed that the other remaining accused had gone

towards Kajla ki bans. ASI- Hanuman Singh, Incharge, P.S.

Bahuna, then reached the spot and they sent injured Chandrabhan

to Chiwada hospital and accused- Parvinder to Surajgarh Police

Station. Thereafter, they along of the some villagers started

moving towards Kajla ki bans, where the remaining accused had

fled. After a distance, they found some set of clothes and shoes on

the ground. They then found the other accused running naked and

on asked to stop, the accused started to fire towards them. The

police then returned the fire in self-defence and fired near their

leg. One accused received a bullet wound on his thigh while the

other received three bullet wounds on his hand, near the belt and

on the back. The two accused identified themselves as Pravin and

Kuldeep and some weapons were also recovered from their

person. They then started moving towards Surajgarh in order to

get medical assistance for the injured accused. Upon travelling

just some distance, they met SHO, Police Station- Pilani and some

villagers who had caught accused- Raghav. SHO, Pilani informed

that he had caught the accused while he was trying to flee and

they also recovered weapon and Rs.2,54,500/- on his person. The

accused Pravin, Kuldeep and Raghav were then taken to hospital

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Surajgarh for treatment. The complainant was then informed that

constable Chnadrabhan has died of his injuries during treatment.

3. On the basis of the above mentioned report, police

registered a criminal case bearing FIR No.141/2010 (Ex. P-8) at

6:15 pm on 9.06.2010 for offence under Sections 332, 353, 336,

302 and 307 IPC, Section 3/25 of Arms Act against the accused

appellants. The police after due investigation filed charge-sheet

against the accused appellants. The learned Trial Court after

committal of the case, framed charges against the accused-

appellants for offence under Sections 332, 353, 336 read with

Section 34, 307 in alternate Section 307/34, 302/34 of IPC and

Section 3/25 of Arms Act. The accused appellants denied the

charges and sought trial. Upon which, 29 witnesses were

examined, and 52 documents were exhibited on behalf of the

prosecution. Explanation of the accused respondent was recorded

under Section 313 of Cr.P.C. In defence, 5 documents were

exhibited. Learned Trial Court after hearing the final arguments for

both the parties, has convicted and sentenced the accused

appellants as stated hereinabove. Aggrieved by which, the present

appeals have been filed.

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

that the fact that the appellants were involved in the bank robbery

was not established by producing any bank officer. It is contended

that as per the prosecution version, appellants were arrested from

the spot, however, from the arrest memos, it is revealed that they

were arrested after four days of the incident from Police Station

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Buhana. There was no dock identification and none of the

witnesses have identified the accused. It is also contended that

the accused were not known to the witnesses, still no test

identification parade was got conducted. It is contended that as

per the prosecution case, the deceased was a constable who

received gunshot injury. The bullet recovered from the body of the

deceased was handed over to the police team, however, the same

was not sent to FSL to ascertain the caliber of the bullet. It is also

contended that as per the prosecution case, there was cross-firing

and in cross-firing, one of the accused- Praveen died. The

possibility that the constable also sustained gunshot wound in

police firing cannot be ruled out. It is further contended that

Shishpal Singh- Armorer (PW-28), who inspected the arms, has

not deposed that the bullet recovered from the dead body of

Chandrabhan was fired from the weapons which were seized from

the appellants at the spot.

5. It is contended that from accused- Pravindra, a country

made pistol and a live cartridge of size 7.85 mm were seized vide

Ex.P-4; from accused- Kuldeep, a pistol and an empty cartridge &

three live cartridge of size 8 mm were seized vide Ex.P-5 and from

accused- Raghav, a pistol and live cartridges of size 8 mm were

seized vide Ex.P-1. To establish that the weapons alleged to have

been recovered from the appellants were used and the deceased

sustained gunshot wound from the weapons of the appellants, it

was mandatory for the prosecution to establish that the caliber of

bullet which was recovered from the body of the deceased was

matching with the weapons alleged to have been used by the

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appellants. It is also contended that as per the prosecution

version, the accused sustained injuries and were taken to the

hospital, however, no medical report has been produced to

establish the same. It is contended that as per the prosecution,

the accused were arrested on 09.06.2010, however, recovery of

vehicle, clothes and shoes were made on 10.06.2010 No

explanation has been given for the delayed recovery.

6. Learned counsel appearing for the State has

vehemently opposed the appeals. It is contended that two FIRs

were lodged for the same incident. One pertaining to bank robbery

which is Ex.P-41 and second is the present F.I.R. (Ex.P-8).

Accused were separately tried for bank robbery case and were

convicted in that case vide judgment and sentence dated

23.08.2013. It is contended that the accused were taken in

custody when they were trying to flee after bank robbery. Cash

was recovered from them. The vehicle was also seized from which

also, cash was recovered. Since, accused were convicted in the

bank robbery case, it is clear that they were involved in bank

robbery and were fleeing from the bank when they were

intercepted and nabbed. It is also contended that since accused

were arrested from the spot, so test identification parade was not

required. It is further contended that there are eye witnesses who

have witnessed the exchange of fire and there is no reason to

disbelieve them and the learned Trial Court has not erred in

placing reliance on the evidence adduced by the prosecution.

7. We have considered the contentions and have perused

the evidence.

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8. To establish the case, prosecution has to establish that

there was bank robbery, that the accused were fleeing in a

vehicle, that they were stopped by constable- Chandrabhan and

that one of them fired at him, that when accused were trying to

flee away from the place, they were chased by the police team

and thereafter, two of the accused- Pravin & Kuldeep were

arrested and that finally the third party arrested accused- Raghav.

Prosecution has to prove that Chandrabhan who sustained

gunshot wound died due to firing by the appellants. Prosecution is

also to establish that the accused-appellants were arrested and

the persons who were produced before the Court are same who

were arrested by the police.

9. The fact that the bank robbery was committed by the

present appellants and that the amount which was recovered from

them, was the same which was robbed from the bank, could have

been established by the prosecution by producing some bank

officer. Surprisingly, no bank officer was produced before the

Court. The judgment of conviction in bank robbery case was also

not produced before the Court. It is pertinent to note that none of

the eye witnesses have identified the accused-appellants in Court.

Admittedly, none of the witnesses were knowing the accused prior

to the date of incident. If they were arrested from the spot in

presence of these witnesses, there ought to have been an arrest

memo, however, there are no arrest memos on the date of

occurrence i.e. 09.06.2010 and arrest of accused- Pravindra &

Raghav is shown on 13.06.2010, whereas arrest of accused-

Kuldeep is shown on 22.06.2010. All the accused were shown to

be arrested from Police Station Buhana.

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10. The contention of learned Addl. Government Advocate

that they were only taken in custody in the present case and were

arrested in the bank robbery case is devoid of any force for the

very reason that the arrest memo of bank robbery case was not

produced and exhibited before the Court. Further, it is not

mentioned in the arrest memos Ex.P.33, 34 and 35 that they have

been arrested from some other case. This is indeed a serious

lacuna and as to why they were not arrested from the spot, when

the firearms were seized from them from the place of occurrence

is beyond comprehension.

11. It is also pertinent to note that the present FIR

No.141/2010 (Ex.P-8) was registered at 6:15 pm on 09.06.2010.

All the recovery memos of the weapon of offence bear the said FIR

number and they have been prepared prior to 6:15 pm. Thus,

these documents appear to be manipulated by the police. The

contention of learned Additional Govt. Advocate that since the

present FIR was not registered and the accused were arrested in

the earlier FIR, they were only taken in custody in this case

cannot be sustained for the very reason that all the recoveries

have been made in the present FIR. There was no reason for not

apprehending the accused-appellants in the present FIR and since

the arrest memo of the earlier FIR was not adduced before the

Court, this Court cannot arrive at the conclusion that the accused

were only taken in custody and were not arrested, when from

their possession, firearms and bank robbery amount were stated

to be recovered. There is further no justification for not seizing the

vehicle, the clothes and shoes of the accused on the same day.

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12. So far as death of constable- Chandrabhan is

concerned, as per Ex.P.25, a bullet was recovered from the body

of Chandrabhan on 09.06.2010 itself and the same was handed

over to the SHO PS Chirawa. No explanation has come forth from

Additional Govt. Advocate as to why this bullet was not sent to the

FSL to ascertain its caliber and why it was not sent to the armorer

to establish that the same was fired from the weapons which have

been seized from the accused-appellants. It is also important to

note that there is no recovery memo prepared of bullet recovered

from the body of the deceased. The only evidence which could

have connected the accused-appellants with the murder of

Chandrabhan was the bullet which was recovered from his body.

Prosecution has utterly failed to connect the weapon of offence

with the bullet recovered from the body of Chandrabhan. One of

the accused is stated to have been killed in the firing by the

police. It has come in evidence that Chandrabhan was also in civil

uniform and the possibility that the police team mistook him to be

one of the robbers and fired at him cannot be ruled out. It is an

admitted case of the prosecution that there was cross-firing. It

was for the prosecution to establish that the bullet which was

recovered from the body of Chandrabhan was not one, which was

fired by the police. This could have been established only if the

recovered bullet would have been sent to FSL and the bullet used

by the police party also should have been sent to the FSL to

ascertain the caliber of the bullet fired by the police team. Thus,

the prosecution has utterly failed to establish that the deceased

sustained gunshot wound which was fired by the accused-

appellants.

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13. The contention of learned Additional Govt. Advocate

that there is evidence to this effect that the appellants fired at the

deceased, lapses on the part of the prosecution in not ascertaining

the caliber of the bullet recovered from the body of the deceased

and connecting the weapon of offence with the alleged offence

would not have any adverse impact on the prosecution case,

cannot be sustained for the very reason that there were no arrest

memos prepared at the place of occurrence; the accused were

not known to the witnesses, still they were not subjected to test

identification parade; the witnesses have not identified the

accused-appellants in dock identification and in absence of dock

identification, it cannot be said that they were nabbed by the

police on 09.06.2010, when the arrest memos mention some

other date. Prosecution has thus utterly failed to establish the

alleged offence against the accused-appellants. The lapses in the

present case goes to the root of the matter and cannot be taken

lightly by the Court, hence, this Court deems it proper to acquit

the accused-appellants by giving them benefit of doubt.

14. Appeals filed by the appellants deserves to be and are

accordingly, allowed. Judgment of conviction and order of

sentence dated 11.04.2012 passed by Addl. Sessions Judge,

Khetri is quashed and set aside. The appellants are acquitted of all

the charges levelled against them. Appellants are in jail, they be

set at liberty forthwith, if not required in any other case or for any

other purpose.

15. 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

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(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 Hon'ble the Apex Court. The bail

bonds will be effective for a period of six months.

16. Record of the trial Court be returned back forthwith

alongwith certified copy of this order.

                                   (BHUWAN GOYAL),J                                               (PANKAJ BHANDARI),J
                                   CHANDAN /









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