Pawan And Anr vs State Of Rajasthan Through Pp
2023 Latest Caselaw 4484 Raj/2

[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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(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,

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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

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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

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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

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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

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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

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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

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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

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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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