Rajasthan High Court - Jodhpur
State vs Ujjawal Alias Kalu Kaushik And Anr on 25 October, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:43416-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 612/2003
State of Rajasthan
----Appellant
Versus
1. Ujjawal alias Kalu Kaushik S/o Suresh Kaushik, resident of
Chandra-Shekhar Aazad Nagar, Bhilwara.
2. Mohanlal S/o Bhura Lal, b/c Bhambhi, R/o 3-H-46, Chandra
Shekhar Aazad Nagar, Bhilwara.
----Respondent/Accused
For Appellant(s) : Mr.N.K.Gurjar, G.A.-cum-AAG assisted
by Mr.Yogendra Singh Charan, Adv.
For Respondent(s) : Mr.R.S.Chundawat, Adv.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment
Judgment Reserved on : 12.09.2024
Judgment Pronounced on : 25.10.2024
<><><>
[Per Hon'ble Mr. Justice Munnuri Laxman] :
1) The present appeal assails the judgment of acquittal dated
23.09.2002 passed by the learned Additional Sessions Judge No.1,
Bhilwara on the file of Sessions Case No.30/2001, therein and
thereby, the respondents-Ujjawal @ Kalu and Mohan Lal were
acquitted of the charges under Sections 302, 323, 324, 120-B of
IPC and under Section 302/34, 323, 324/34, 120-B of IPC
respectively.
2) The present appeal is at the instance of the State.
[2024:RJ-JD:43416-DB] (2 of 10) [CRLA-612/2003]
3) For the convenience, accused-Ujjawal @ Kalu is referred
as A-1 and accused-Mohan Lal is referred as A-2, who are the
respondents in the present appeal.
4) The case of the prosecution is that Mohsin Khan (PW-2)
and Sandeep Mehta (PW-9) were friends. On 31.03.2001,
Sandeep Mehta parked his cycle near the Dairy Booth of Chandra
Shekhar Aazad Nagar of Bhilwara. At 7 pm when they came back
to the place of parking, they found that the cycle was punctured
with nails. The complainant-Mohsin Khan (PW-2) suspected the
role of Ujjawal @ Kalu (A-1) and Narayan Gurjar (absconder), who
were sitting by the side of the cycle. In this regard, there was an
exchange of heated words and a fight broke out. They allegedly
assaulted. Meanwhile, Sazid (deceased), Sakir (PW-7), who is
brother of the deceased, and Abhishek (PW-10) were passing
through the place of incident and other persons Aslam (PW-3) and
one Rajan were also passing through the place of incident. On
seeing A-1 and Narayan assaulting Mohsin Khan and Sandeep
Mehta, Sazid allegedly tried to interfere. In the meanwhile, A-1
allegedly went to his home and brought knife and stabbed Sazid
(deceased) beneath the ribs. A-2, who was holding sword in his
hand, also caused the sword injury to the deceased. Immediately,
Sakir (PW-7) with the help of Rajan shifted the deceased to
hospital on the motorcycle of Rajan. Mohsin Khan (PW-2), who
also suffered injuries in the incident, lodged the report under
Exhibit-P/5. Basing on the Exhibit-P/5, the FIR No.107/2001 was
registered at Police Station Pratap Nagar, Bhilwara under Exhibit-
P/20 for offence under Sections 147, 148, 149, 323, 307 of IPC.
[2024:RJ-JD:43416-DB] (3 of 10) [CRLA-612/2003]
5) The statement of the deceased was recorded. The
deceased while undergoing treatment succumbed to the injuries in
the midnight of 11/12.04.2001. After the deceased died, the
offences were altered to Section 302, 323, 324, 120-B of IPC.
Subsequently, inquest was held on the dead body and the scene of
offence was examined. The postmortem was conducted. Basing on
the statement of the deceased, A-1 and A-2 were arrested. On the
disclosure statement of A-1 under Exhibit-P/24, knife was seized
from his house under Exhibit-P/12 and on the basis of disclosure
statement of A-2 under Exhibit-P/27, sword under Exhibit-P/8 was
recovered. The police also seized the shirt of the deceased under
Exhibit-P/6. Subsequently, accused were remanded to judicial
custody. The sword and knife seized from A-1 were sent to the
Forensic Science Laboratory. Subsequently, a chargesheet was
filed against A-1 and A-2 for the offences under Sections 302,
323, 341, 324, 120-B of IPC and accused Narayan was declared as
absconder. On committal, the Sessions Judge has taken the
cognizance against A-1 and A-2 for the offences under Sections
302, 323, 324, 120-B of IPC read with Section 34 of IPC. Charges
were also framed for the said offences against both the accused.
6) The prosecution in support of its case examined at all 25
witnesses and exhibited documents Exhibit-P/1 to P/31. In
defence, accused did not examine oral evidence but exhibited
documents Exhibit-D/1 to D/3.
7) The trial court on appreciation of evidence on record found
that no offence is made out against both the accused.
Consequently, they were acquitted of the said charges. Hence, the
present appeal by the State.
[2024:RJ-JD:43416-DB] (4 of 10) [CRLA-612/2003]
8) Heard learned Additional Government Counsel-cum-AAG
appearing for the State and learned counsel appearing for the
respondents.
9) The learned Additional Government Counsel-cum-AAG has
vehemently submitted that the trial court has discarded the direct
eyewitness account i.e. PW-7 Sakir, whose evidence is sterling in
nature and his presence at scene of offence was also referred in
the FIR. His evidence was discarded only for the reason of his
relation with the deceased. According to him, when the presence
of PW-7 Sakir is proved beyond doubt, his evidence ought to have
been relied upon by the learned trial court to convict the accused.
10) The arguments of learned Additional Government Counsel
is also that when there is a direct evidence of eyewitness account,
some lapses on the part of the prosecution and investigation in
bringing on record the FSL report relating to knife and sword of A-
1 should not have been taken as a doubting circumstance to the
sterling nature of evidence of PW-7 Sakir. The evidence of PW-7
without aid of FSL Report, which could be the additional
circumstance to support the case of the prosecution, could have
been made foundation for the conviction of A-1 and A-2. According
to learned Additional Government Counsel, acquittal is based on
the lapses without considering the eyewitness account, is
unsustainable. He prayed to reverse the acquittal of the accused
into conviction.
11) The learned counsel appearing for the respondents-
accused has submitted that the First Information Report lodged by
PW-2 Mohsin Khan clearly shows that the deceased-Sazid, PW-7
Sakir and PW-10 Abhishek were together passing through the
[2024:RJ-JD:43416-DB] (5 of 10) [CRLA-612/2003]
place of incident. While passing through, they allegedly found that
there was scuffle between PW-2 Mohsin Khan and PW-9 Sandeep
Mehta with the accused. In the said scuffle, they were allegedly
assaulting PW-2 and PW-9 and the deceased tried to interfere. In
such assault, A-1 went to his house and allegedly brought the
knife and stabbed the deceased. Whereas, the substantive
evidence of PW-7 Sakir shows that they were not with the
deceased when the deceased tried to make interference in the
incident. According to PW-7 Sakir, he and PW-10 Abhishek were
sitting together at a juice shop and two persons allegedly came to
them and informed the incident. They rushed immediately to the
scene of offence and found A-1 was stabbing the deceased with
the knife and A-2 was also found stabbing with the sword and the
other accused were attacking the deceased. There is a
contradiction between the First Information Report and the
substantive evidence of PW-7 Sakir. PW-2 Mohsin Khan, who
lodged the written report, did not support the case of the
prosecution. In fact, he was injured in the incident. The entire
genesis of the incident was on account of some quarrel in between
PW-2 Mohsin Khan and PW-9 Sandeep Mehta one side and the
accused on other side. Such crucial witnesses have not supported
the prosecution case.
12) The learned counsel for the respondents-accused also
submitted that the deceased died after 12 days of the incident.
According to the postmortem report, only one stab injury was
found on the body of the deceased, which was beneath the ribs
and the same was causative factor for the death of the deceased.
There is another injury of laceration, which is caused with the
[2024:RJ-JD:43416-DB] (6 of 10) [CRLA-612/2003]
blunt object. The claim of PW-7 Sakir that A-2 also attacked the
deceased with sword and such statement creates a doubt over the
actual presence of A-2 at the place of incident. PW-7 and P-10
went to place of incident on information and the witnesses could
not able to say the distance between the place where they were
sitting and the place of incident so that there was probability of
the witnesses reaching the place of incident on information about
quarrel between the deceased and the accused. The injury found
on the body of the deceased was only one injury, which could have
been caused before PW-7 Sakir could be reached to the place of
incident.
13) The further contention of learned counsel for the
respondents-accused is that according to PW-23 Shaukat Ali, the
Investigating Officer, he recorded the statement of deceased when
he was in hospital and basing on such statement only, the accused
were arrested. However, the prosecution neither exhibited the
statement of the deceased under Section 161 Cr.P.C. nor was able
to prove the same. The concealment of such important piece of
evidence creates doubt over the case set up by the prosecution.
14) The learned counsel for the respondents also submitted
that the police claimed to have seized the shirt of the deceased
under Exhibit-P/6. According to PW-7 Sakir, he does not know the
details where-from the shirt was seized. He claimed to have stated
that he signed Exhibit-P/6 in hospital, whereas the report Exhibit-
P/6 is not clear where the seizure was effected. However, a close
scrutiny of such a seizure memo shows that the seizure was
effected on the production of shirt by PW-2 Mohsin Khan but he
has not supported the production of such shirt. The witnesses to
[2024:RJ-JD:43416-DB] (7 of 10) [CRLA-612/2003]
the seizure are also not able to support the case of the
prosecution with regard to actual place of seizure. The knife
recovered at the instance of A-1 was sent to the Forensic Science
Laboratory along with shirt of the deceased but the FSL report has
not produced. Such a report could have been one of the additional
circumstance, which could have corroborated the testimony of
PW-7 Sakir, whose evidence was not found to be sterling in
character. The trial court also discarded the evidence of of PW-7 in
the absence of such a corroborative evidence. Such findings of the
trial court cannot be interfered in the appeal on the ground that
there is possibility of other view basing on such evidence.
According to learned counsel for the respondents, the evidence
relied upon by the prosecution has not been clearly established
the involvement of the accused in crime. Therefore, according to
him, the appeal is liable to be dismissed.
15) We have considered the rival submissions advanced
before us and carefully perused the material available on record.
16) As seen from the entire case of the prosecution, apart
from PW-7, the prosecution also claimed the presence of other
eyewitnesses, particularly PW-2 Mohsin Khan, who is the person
responsible for the genesis of the incident, PW-3 Aslam, PW-10
Abhishek and one Rajan. The other eyewitnesses except PW-7
Sakir have not supported the prosecution case. The initial FIR
under Exhibit-P/5 shows that PW-7 Sakir, PW-10 Abhishek were
with the deceased from the beginning. Whereas, the substantive
evidence of PW-7 Sakir before this Court shows that they were not
with the deceased when the incident commenced upon
intervention of deceased with the quarrel among PW-2 Mohsin
[2024:RJ-JD:43416-DB] (8 of 10) [CRLA-612/2003]
Khan, PW-9 Sandeep Mehta and the accused. He reached the
place of incident on the information furnished by two persons
when he along with PW-10 Abhishek were sitting at the juice shop,
which is not at a visible distance. On information, he rushed to the
scene and found that A-1 was stabbing the deceased with the
knife and A-2 was also stabbing with the sword. Looking at the
PMA report only one injury with the sharp-edged weapon was
found on the body of the deceased, which is causative factor for
the death of the deceased. There is no sword injury on the body of
the deceased as claimed by PW-7 Sakir. However, there is a
lacerated injury, which could not be possible with the sword when
the stabbing was done with the sword according to PW-7. The
contradiction in between First Information Report and the
substantive evidence of PW-7, and absence of any sword injury on
the body of the deceased renders the evidence of PW-7 not of
sterling character. Apart from that, PW-7 Sakiar is close relative
i.e. brother of the deceased. This makes his evidence requires
more care and caution while placing reliance. There is no doubt
that evidence of relative witness cannot be discarded solely on the
ground that he was close relative. However, if such evidence is of
not sterling character and there are circumstances, which raises
doubt over the presence of such witness from his evidence, then
definitely such an evidence alone cannot be safe to place reliance
in the absence of any corroborative materials.
17) The evidence of PW-23 Shaukat Ali shows that he recorded
the statement of the deceased in hospital, which could be the best
piece of evidence, which falls under Section 32 of the Indian
Evidence Act, which could have been one of the corroborating
[2024:RJ-JD:43416-DB] (9 of 10) [CRLA-612/2003]
circumstances to the sole eyewitness account of PW-7 Sakir but
the prosecution neither exhibited the statement of the deceased
nor was able to prove the same.
18) There was other material which could have helped the
prosecution to corroborate the eyewitness account i.e. the seizure
of knife from A-1. The evidence of the Investigating Officer shows
that the knife of A-1 was seized, which contained blood stains. The
shirt of the deceased and knife were sent to the Forensic Science
Laboratory. However, the prosecution failed to bring the FSL report
on record. It appears that causal approach has been done by the
Investigating Agency and the prosecuting agency. Apart from that,
the Presiding Judge also failed to have control over the trial. When
the prosecution evidence was mistracking and certain important
evidence, which could have helped the court to come at just
decision, had not been brought on record, the role of the judge
could have been more participatory in order to bring the relevant
piece of evidence on record in order to render effective judgment,
which would help the parties before them. This role has been
derelicted by the Sessions Judge also, while recording the
evidence. On account of such approach of the prosecution,
Investigating Agency and the role of judge, the important piece of
evidence, which could have been helpful for the prosecution to
fortifies case by placing corroborative circumstances to the
eyewitness account, due to such lapses, the accused got the
benefit of acquittal. Even, in the appeal also, no efforts have been
made to bring such an evidence before the Court, which could
have overturned the findings of the trial court and could have
helped only one plausible view with regard to guilt of the accused.
[2024:RJ-JD:43416-DB] (10 of 10) [CRLA-612/2003]
In the absence of such a corroborative evidence, the sole
testimony of PW-7 Sakir, whose evidence was of not sterling
character and suffered from contradictions and creating some
doubt over his actual time of reach to the place of incident,
requires corroborative piece of evidence. If such evidence is not
there, basing on the evidence of PW-7 alone, two plausible views
are possible. The view taken by the trial court is also plausible.
The other view of involvement of the accused could be plausible.
In dealing with the appeal against acquittal, where the view taken
by the trial court is also plausible from the evidence on record,
merely because the other view is plausible, this Court cannot
interfere in the impugned judgment of acquittal.
19) In the result, the criminal appeal being devoid of merit is
hereby dismissed.
(MUNNURI LAXMAN),J (DR.PUSHPENDRA SINGH BHATI),J.
NK/-
Powered by TCPDF (www.tcpdf.org)
