Rajasthan High Court - Jodhpur
Suresh Kumar vs State on 9 September, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:33242-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal (Db) No. 231/2019
1. Suresh Kumar S/o Shri Chagan Lal Jat, Aged About 35
Years, Ward No. 16, Fateh Nagar, Distt. Udaipur.
(Presently Lodged In Central Jail, Udaipur).
2. Raju S/o Shri Mohan Ji Bheel, Aged About 33 Years, R/o
Sanwalpura Changedi, P.s. Fateh Nagar, Distt. Udaipur.
(Presently Lodged In Central Jail, Udaipur).
----Appellants
Versus
State, Through P.p.
----Respondent
For Appellant(s) : Mr. Jagatveer Singh Deora
For Respondent(s) : Mr. B.R. Bishnoi PP.
Mr. Shreyash Ramdev (complainant).
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment
Reserved on 06/08/2024
Pronounced on 09/09/2024
Per Dr. Pushpendra Singh Bhati, J:
1. This criminal appeal under Section 374 Cr.P.C. has been
preferred claiming the following reliefs:
"It is, therefore, respectfully prayed that this Appeal
may kindly be allowed and the impugned Judgment Dt.
13.8.2019 passed by the Learned Addl. Sessions Judge No.-1,
Udaipur may kindly be quashed and set aside and appellant be
acquitted."
[2024:RJ-JD:33242-DB] (2 of 13) [CRLAD-231/2019]
2. The accused-appellants laid a challenge to the judgment of
conviction and order of sentence dated 13.08.2019 passed by the
learned Additional Sessions Judge No.1, Udaipur, in Sessions Case
06/2017 (CIS No. 30/2017) (State of Rajasthan Vs. Suresh kumar
& Anr.), whereby the present accused-appellants have been
convicted and sentenced as below:
Offence under Sentence Fine
Section
302/34 IPC Life imprisonment Rs.50,000/- (each of the
appellants),in default of
which, to undergo further
three months R.I. (each of
the appellants)
397/34 IPC 7 years R.I. Rs.5000/- (each of the
appellants), in default of
which, to undergo further 15
days R.I. (each of the
appellants)
460 IPC 10 years R.I. Rs.10,000/- (each of the
appellants), in default of
which, to undergo further
one month R.I. (each of the
appellants)
All the sentences were ordered to run concurrently as per
Section 428 Cr.PC.
3. As the pleaded facts and the record would reveal, on
14.10.2016, complainant-Shobhagmal Mehta (PW-2) submitted a
written report Ex.P/1) before the Police Station, Fateh Nagar,
District Udaipur, stating therein that on the said date, while he and
his son, namely, Sanjay Kumar were in a shop situated at Akola,
at that time, his son received a call from one Ravi Agarwal, to the
effect that the complainant's parents were beaten up by certain
persons, who after committing such act, had made a loot in the
house of the complainant's parents, and fled away thereafter.
[2024:RJ-JD:33242-DB] (3 of 13) [CRLAD-231/2019]
3.1. Upon receiving such information, the complainant and his
son reached the place of the incident and found the complainant's
father lying dead on bed in the room; there was a cloth noose
(kapde ka phanda) around the neck of the complainant's father
and all the belonging in the house were scattered and the accused
persons had taken away the cash and jewellery from the house,
while fleeing from the place of incident after committing the crime
in question.
3.2. On the basis of the aforementioned report, a case bearing
No.187/2016 was registered at Police Station, Fateh Nagar for the
offences under Sections 302, 480 & 397/34 IPC and the
investigation commenced accordingly. After completion of the
investigation, the police filed a charge-sheet under Sections
460/34, 397/34 & 302/34 IPC and the charges were framed and
read over to the accused-appellants, which were denied by them,
and the trial commenced thereafter.
3.3. During the course of trial, the prosecution produced 18
witnesses and exhibited 24 documents for examination; in
defence, 04 documents were exhibited for examination by the
learned Trial Court. At the time of trial, the statement of the
accused-appellants were recorded under Section 313 Cr.P.C.
wherein they denied the evidence and pleaded not guilty.
3.4. After conclusion of the trial, the learned Trial Court vide the
impugned judgment dated 13.08.2019 convicted the accused-
appellants for the aforementioned offence and sentenced them as
above.
[2024:RJ-JD:33242-DB] (4 of 13) [CRLAD-231/2019]
4. Learned counsel for the accused-appellants submitted that
the FIR (Ex.P/15) was registered against unknown persons, but
the sole eye witness PW.1- Jassu Bai (wife of deceased) stated in
her statement under Section 164 Cr.P.C. that she knew the
accused persons, and therefore, it is clear that there were clear
contradictions in the statement of the said eyewitness.
4.1. It was further submitted that the statement (Ex.D/1) of PW-
1 were recorded under Section 161 Cr.P.C by the concerned police
authority after 14 days of the incident in question, and no
explanation was put forth by the said authority for such delay in
record of the said statement. In her statement, PW-1 stated that
she went to the police station after 3 days of the incident in
question, and therefore, her testimony was not worthy of being
relied.
4.2. It was also submitted that the Test Identification Parade
(TIP) of the accused-appellants was made before PW-1, and the
said fact was also mentioned in her testimony. It was further
submitted that in the FIR, no description was given with regard
appearance of the accused-appellants, and therefore, the TIP was
also not a reliable piece of evidence so as to convict the accused-
appellants for the crime in question.
4.3. It was further submitted that the alleged recovery of the
ornaments and other things, in the given circumstances, even on
the basis of the information given by the accused-appellants, is
doubtful because the recovery witness (Motbir) PW-9 Hakim Khan
was declared hostile during the trial. It was also submitted that
the PW-16, Gehri Lal (investigating officer) stated in his testimony
[2024:RJ-JD:33242-DB] (5 of 13) [CRLAD-231/2019]
that during the course of investigation, no one has stated to have
seen the accused-appellant near the place of incident in question
and he also stated that no identification of the ornaments in
question was conducted.
4.4. It was also submitted that at time of the registration of the
FIR, no description or list of missing ornaments and money was
given by complainant-Shobhag Lal (PW.2), and therefore, alleged
recovery of ornaments from the accused-appellants was not
proved.
4.5. It was further submitted that both the accused-appellants
were inquired by the police twice, but the police did not find
anything, and thereafter, suddenly the police arrested the
accused-appellants, which clearly shows that the investigation was
not conducted in a fair and lawful manner.
4.6. It was also submitted that as per the prosecution story, after
the incident, despite the locality being full of neighbourhood, not a
single neighbour has been examined during the course of
investigation, nor any of the neighbours was produced for
examination during the trial, and therefore, the entire evidence,
as produced by the prosecution is doubtful and unreliable, and
therefore, the impugned judgment of conviction and order of
sentence passed by the learned Trial Court is not justified in law.
It was further submitted that accused-appellant is behind bars for
last more than 7 years.
4.7 In support of his submissions, learned counsel relied upon
the following judgments rendered by the Hon'ble Apex Court:
(a) Ashish Jain Vs. Makrand Singh & Ors. (2019) 3 SCC 770 and
[2024:RJ-JD:33242-DB] (6 of 13) [CRLAD-231/2019]
(b) Subramanya Vs. State of Karnataka (Criminal Appeal No.
242/2022, decided on 13.10.2022)
5. On the other hand, the learned Public Prosecutor as well as
learned counsel for the complainant, opposed the aforesaid
submissions made on behalf of the accused-appellants, while
supporting the impugned judgment of conviction and order of
sentence.
5.1. Learned Public Prosecutor submitted that there is an eye
witness to the incident in question, recovery has been effected
from the appellants-accused as well as other evidence are also
there on record, which completely support the prosecution story,
and the same were also taken into due consideration by the
learned Trial Court before passing the impugned judgment.
5.2. Learned counsel for the complainant submitted that the eye
witness PW-1 has identified the accused-appellants at the time of
TIP (Ex.P/13 & Ex.P/14) and the witness of said TIP is PW.12-
Rajeev Badgurjar, who has also fully supported the conducting of
the said TIP.
5.3. It was also submitted that the accused-appellants confessed
the crime in question and the same was recorded in poochtaach
note dated 13.11.2016 and it was admissible in evidence as per
Section 30 of the Indian Evidence Act, 1872. It was further
submitted that the concerned police authority has recovered the
Rs.10,000/- & motorcycle from accused-appellant-Ramesh; and
Rs.15,000/- & ornaments from accused-appellant-Raju.
5.4. It was also submitted that due to some inadvertance, the
articles recovered were not identified by the prosecution
[2024:RJ-JD:33242-DB] (7 of 13) [CRLAD-231/2019]
witnesses, and therefore, the application under Section 311 Cr.P.C.
was filed before the learned Trial Court for due identification, but
the same was dismissed, whereafter, the complainant has
approached this Hon'ble Court by preferring S.B. Criminal Misc.
Petition No. 105/2019, whereupon this Hon'ble Court has directed
the learned Trial Court to recall the witnesses i.e. PW-1, PW-2, and
thereafter, PW-2 identified the said recovered articles.
5.5. It was further submitted that all the prosecution witnesses
remained consistent in their statements, thereby proving that the
death in the present case was caused due to strangulation by
ligature (Ex.P/4) and asphyxia. It was also submitted that though
PW-6 & PW.8 had turned hostile during the trial, the same does
not help the accused-appellants, because the said witnesses are
the close relatives of the accused-appellants.
5.6. In support of such submissions, learned counsel for the
complainant relied upon the following judgments:-
(a) Ashok Debarma Vs. State of Tripura (2014) 4 SCC 747;
(b) Sheelam Ramesh Vs. State of A.P. AIR 2000 SC 718;
(c) Mukesh Kumar @ Manoj kumar Vs. State of Rajasthan (D.B.
Criminal Appeal No. 619/2016, decided on 28.04.2023).
6. Heard learned counsel for the parties as well as perused the
record of the case alongwith the judgments cited at the Bar.
7. This Court observes that the FIR was registered on
14.10.2016 by complainant-Shobhagmal Mehta, whereafter, on
13.11.2016, the accused-appellants were arrested, and the
charge-sheet was filed under Sections 460, 397, 302/34 IPC; the
charges under the said provisions of IPC were framed by the
[2024:RJ-JD:33242-DB] (8 of 13) [CRLAD-231/2019]
learned Trial Court, and thereafter, upon conclusion of the trial,
the impugned judgment of conviction and order of sentence was
passed by the learned Trial Court.
8. This Court further observes that the sole eye witness of the
incident in question was PW.1-Jessu Bai (wife of deceased), who in
her testimony stated that at around 6 o'clock in the evening, the
deceased was washing his hand and the said witness was sitting
on a bed, and at that time, the accused-appellants came and tied
her mouth and her hands and legs; threw her under the bed and
the said witness could neither speak, nor make any movement;
thereafter, the accused-appellants went towards the deceased's
room and caused his death by hanging; thereupon, while leaving,
the accused-appellants freed the hands of the said witness, and
closed the door of the house. Thereafter, the said witness started
shouting and upon hearing the same, the neighbours came to her
house, followed by arrival of her family members. The said witness
further stated that when she was tied, the accused-appellants had
stolen certain ornaments and other things.
8.1. This Court also observes that during the cross examination of
PW.1, she has stated that accused-Raju released her hands and
that she did not know whether the names of accused persons was
Suresh and Raju or not at the time of recording of the statement
by the concerned police authority. She further stated that the
police authority had called her to police station at the time when
the accused persons were taken into custody.
8.2. This Court further observes that PW.1, the sole eyewitness of
the incident, has narrated the entire story with some minor
[2024:RJ-JD:33242-DB] (9 of 13) [CRLAD-231/2019]
contradictions regarding the TIP, and therefore, this Court deems
it appropriate to look into the same, in conjunction with the other
evidence available on record, including the testimony of PW.12-
Rajeev Badgurjar (Tehsildar), and a perusal thereof reveals that as
per directions, he conducted the TIP in jail and prepared Ex.P/13
& Ex.P/14, wherein a total of 7 persons, including one of the
accused-appellants, resembling each other, were made to stand;
similar procedure was also arranged for another accused-
appellant. Thereafter, PW.1 identified the accused-appellants by
touching them.
8.3. A perusal of the testimony of PW.16-Gehri Lal, reveals that
he has also supported the prosecution version, that the accused-
appellants were arrested on basis of inquiry and their confession;
after arrest, the TIP was conducted and the accused-appellants
were identified by PW.1.
8.4. This Court also observes that looking into the corroboration
of the aforesaid witnesses, the minor contradictions in the
testimony of the eyewitness (PW.1) is not fatal to the entire
prosecution version and PW. 12 who was authorized to conduct
the TIP, has conducted the same as per the procedure laid down
under the law.
9. As per the testimony of PW.2- Shobhagmal (son of
deceased), when he reached the place incident, he saw that his
father had a noose around the neck, his body was bleeding and
the cupboard containing the household articles were lying open,
the articles were scattered, and at that time, her mother narrated
him the entire incident. He was present at the time of recovery of
[2024:RJ-JD:33242-DB] (10 of 13) [CRLAD-231/2019]
ornaments vide Ex.P/5. This Court further observes that PW.4-
Sanjay Kumar (son of PW.2) also supported the prosecution story.
Their testimonies have no contradiction and fully support the
prosecution story.
10. As per the testimony of PW.11- Dr. Mahesh, the deceased's
death was caused due to strangulation by ligatures around the
neck and fracture of the first and second cervical vertebrae,
resulting in pressure on vital centre respiration, which were
sufficient to cause the death.
11. This Court also observes that PW. 16-Gehri Lal (the
investigating officer) in his statement has stated that the report
was filed against unknown persons and the accused-appellants
were arrested on the basis of confession during the interrogation
(puchtach). He further stated that PW.1's statement was recorded
after 14 days of the incident in question, because of death of her
husband and lapse of time of 12 days taken for funeral ceremony.
He also stated that the identification of ornaments was not
conducted because PW.2 (complainant) was present at time of
recovery of ornaments and he identified them.
11.1. This Court further observes that as per the statement of
PW.16, who was the investigation officer, there was no lacuna on
his part and the accused-appellants and some other persons were
interrogated, and thereafter, the accused-appellants were arrested
and thereupon, the TIP was conducted. The accused-appellants
were arrested on 13.11.2016 and the TIP was conducted on
25.11.2016 i.e. after a delay of 12 days, but as recorded by the
learned Trial Court, there was nothing, which could show that the
[2024:RJ-JD:33242-DB] (11 of 13) [CRLAD-231/2019]
accused-appellants were not under Baparda, rather they were
under Baparda as mentioned in the remand order passed by the
concerned Judicial Magistrate.
12. This Court also observes that in the FIR Ex.P/15, the
complainant-Shobhagmal clearly stated that the ornaments and
money were missing and thereafter, in his statement, he has
stated the same, followed by similar deposition by PW.1.
12.1. This Court further observes that accused-appellant-Raju
gave information (Ex.P/20) on 16.11.2016, as per which, the
ornaments, namely, silver bracelet, a golden shining necklace, a
small used purse, watch on which Ashok was written, as well as
ten notes each of denomination of Rs.500/- (Rs.5,000/-, in total),
were recovered from the accused-appellant-Raju's house and Fard
Ex.P/5 was prepared and the said recovery was also identified by
complainant-Shobhagmal. This Court also observes that the said
ornaments were also identified by PW.1- Jassu Bai and
complainant- Shobhagmal during the trial.
12.2. This Court further observes that accused-appellant-Suresh
gave information regarding the money looted from the deceased's
house and the same was recovered, followed by preparation of
Fard Memo.
13. This Court also observes that the testimonies of PW. 3-Ratan
Lal and PW.5- Pankaj both were corroborated with panchnama
(Ex.P/3) and no contradiction was found therein.
13.1. This Court further observes that the other prosecution
witnesses i.e. PW. 10- Jagmohan, PW. 13- Mahaveer Prasad, PW.
14- Ganpatnath, PW.15- Kalyan Singh, PW. 17- Suresh Meena and
[2024:RJ-JD:33242-DB] (12 of 13) [CRLAD-231/2019]
PW.18- Arvind Kumar, were the motbir's of articles, arrest of
accused-appellants, Naksha Mauka etc. and there testimonies did
not suffer from any contradiction, whereby they fully supported
the prosecution case.
14. This Court also observes that the sole eyewitness of the
incident identified the accused-appellants at time of the TIP,
which was conducted by PW.12 (Tehsildar) as per the law, and
recovery of ornaments was made from the accused-appellants,
which were missing from the deceased's house; the other
prosecution witnesses have also fully supported the prosecution
story, so as to enable the prosecution to prove the complete chain
of evidence in the present case.
15. On the basis of above analysis of the documentary and oral
evidence available on record, this Court does not find any illegality
or perversity in the conviction of the accused-appellants, as
recorded by the Trial Court in the impugned judgment. The
learned Trial Court has gone through the evidence carefully and
this Court has also undertaken the same exercise, and in our
opinion, the learned Trial Court has committed no error
whatsoever, in coming to the conclusion that the accused-
appellants had committed the crime in question.
16. Consequently, the impugned judgment of the conviction as
well as the order of sentence dated 13.08.2019 passed by learned
Trial Court in Session Case No.06/2017 (CIS No. 30/2017) (State
of Rajasthan Vs. Suresh & Anr) is upheld and the instant appeals
are accordingly dismissed.
[2024:RJ-JD:33242-DB] (13 of 13) [CRLAD-231/2019]
16.1. All pending applications stand disposed of. The record of the
learned Trial Court be returned forthwith.
(MUNNURI LAXMAN),J (DR.PUSHPENDRA SINGH BHATI),J
SKant/-
Powered by TCPDF (www.tcpdf.org)
