Anil Kumar v. State of Rajasthan — 1997 DIGILAW 72 (RAJ)

Honble YAMIN, J. – Appellant Anil Kumar was convicted for offence u/s 302IPC and sentenced to life imprisonment with a fine of Rs. 1,000/- by Additional Sessions Judge No. 1 Sriganganagar camp at Srikaranpur. He was further convicted for offences u/ss 25 & 27 of Arms Act and sentenced to six months S.I. and fine of Rs. 100/- under each section. He has preferred appeal to this Court. (2). We have heard the learned counsel for the appellant as well as learned Public Prosecutor on behalf of the State. (3). The facts of the case as alleged by the prosecution are that Rajaram deceased was the uncle of the accused appellant. Accused appellant was living with his maternal grand father in village Binjvayla. Rajaram was indebted to appe- llant and was to pay Rs.5,000/-to him. He promised to pay. On 16.10.1992 , appellant Anil Kumar came in Jeep No. RRC 5900 to village 81 LNP.He was accompanied by jeep driver Prakash and a friend Chhoturam. They went to the house of Rajaram and enquired about welfare of family. It is further alleged that accused appellant went with the driver and his friend for some time and came back. He thereafter asked Rajaram to accompany him to village Nerbana as some amount was to be realised by the appellant from barbers of the village. Then the accused appellant took Rajaram to chak 81 LNP. The jeep was stopped and accused appellant asked Rajaram to accompany him to see the field. He asked Prakash driver to take turn and bring the jeep. It was at about 3.00 p.m. It is further alleged that then Anil Kumar brought out his pistol and fired on Rajaram and killed him. Then he put the pistol on the body of Prakash driver and asked him to drive the jeep. When they reached near the house of Manjeet Singh, Prakash driver jumped from the jeep and ran away. similarly, Chhoturam who was sitting in the rear side of the jeep also jumped and ran towards the jungle. The accused appellant himself drove the jeep to a distance of near about 50 bighas but the jeep could not go ahead as the same stuck in sand.Then the accused appellant left the jeep there and ran away .The driver of the jeep i.e. Prakash went to Maniram and narrated the story to him. The accused appellant himself drove the jeep to a distance of near about 50 bighas but the jeep could not go ahead as the same stuck in sand.Then the accused appellant left the jeep there and ran away .The driver of the jeep i.e. Prakash went to Maniram and narrated the story to him. Maniram in turn told the story to Bhadarram, brother of deceased Rajaram. Bhadarram reported the matter to the police at about 4.00 p.m. A case u/s 302 IPC and 27 of Arms Act was registered.After usual investigation, challan was filed and the accused appellant was tried by the learned Sessions Judge and convicted as stated above. (4). Learned counsel for the accused appellant has submitted that the FIR was lodged by Bhadar Ram who has not supported it and that the two eye-witne- sses viz. Prakash and Chhoturam were declared hostile by the prosecution. According to him there is no eye -witness of the incident and even Motbir PW 16 Hari Ram has not supported the case of the prosecution. He has submitted that Mani Ram has not been produced. He has also submitted that though there is an alleged recovery of arm from the accused appellant and a cartridge was also recovered yet there is no recovery of any empty cartridges from the place of occurrence. He has submitted that the prosecution has not been able to establish its case. (5). Learned P.P. has controverted all these these arguments and has tried to support the judgment. (6). Ex.P/10, FIR was orally lodged by Bhadar Ram and was recorded by PW 13, Noor Mohd. According to FIR it was Prakash driver who narrated the incident to Mani Ram and Mani Ram in turn narrated the incident to Bhadar Ram. This Bha- dar Ram is the second husbant of the mother of accused appellant. So what is mentioned in the FIR is based on the story told to Mani Ram by the eye-witness Prakash driver. (7) PW6 Bhadar Ram has been produced as a witness but he has not supported the FIR. He of course admits that Mani Ram came to him on 16.10.1992 and told that Rajaram was murdered but he did not name any body. (7) PW6 Bhadar Ram has been produced as a witness but he has not supported the FIR. He of course admits that Mani Ram came to him on 16.10.1992 and told that Rajaram was murdered but he did not name any body. In the first part of his examination in chief, Bhadar Ram has narrated that Rajaram was taken by accused appellant in a jeep in which Anil Kumar and Chhoturam were sitting and it was being driven by Om Prakash. He has stated that he did report the matter to the police vide Ex. P/10 but he did not narrate the part marked from `E to `F in Ex. P/10.He has last seen his brother Rajaram with accused Anil Kumar while he took away Rajaram in jeep. From his statement it is clear that it was Mani Ram who narrated the story to PW 6 but the prosecution for the reasons best known to it has not produced Mani Ram though he was cited as a prosecution witness in the challan. This lacuna in itself is very material and withholding of Mani Ram casts a serious doubt in the prosecution case. (8) According to prosecution, Prakash and Chhoturam were two eye- witnesses. Their statements were also recorded by PW 4 Babu Ali Syed u/s. 164 Cr.P.C., who was the Additional Cheif Judicial Magistrate at Srikaranpur on 19.10. 1992. (9) PW 1 Prakash has stated in the very first line of his examination in chief that he did not see any murder. He was the owner of jeep in which he took Anil Kumar to village 81 LNP but he left after a round of field was taken, he charged Rs. 140/- as fare. He has also stated that Rajaram was not made to sit in the jeep and that the accused appellant did not fire on Rajaram before him. He was declared hostile by the prosecution and was cross-examined at length. The prosecution was not able to elicit anything favourable from him. Of course his statement was recorded u/s 164 Cr. P.C. but according to him he was kept in Police Station for three days and was beaten for two days and it was under the pressure of police he gave statement to the Magistrate. PW2 Chhoturam has stated that it was Prakash who asked him to accompany to village 81 LNP. Of course his statement was recorded u/s 164 Cr. P.C. but according to him he was kept in Police Station for three days and was beaten for two days and it was under the pressure of police he gave statement to the Magistrate. PW2 Chhoturam has stated that it was Prakash who asked him to accompany to village 81 LNP. When Prakash and accused appellant had come to his house then they all went to the fied of Anil Kumar. Chhoturam and Prakash both have said that the jeep was an old one and could start only after it was pushed.According to Chhoturam he was taken in order to push the jeep. He has also supported PW1 Prakash while saying that Rajaram was not taken in the jeep . PW.2 Chhotu- ram has stated that they took a round of field of Anil Kumar and while they were returning a bearing of Jeep broke and then he and Prakash left Anil Kumar near the jeep and went to Binjvayla to take a bearing.They purcheased it and thereafter the police caugth hold both of them and book to village 81 LNP.The both of them were threatened by the police and whatever statement he gave before the Magis- trate in E. P/4 was under the threat of the police. He has specifically stated that he did not see Anil Kumar firing on Rajaram. He was also declared hostile by the prosecution but the prosecution has not been able to elicit anything favourable from him about the incident. .He has maintained that the police gave him beatings for three days and thereafter he was produced before a Magistrate where he stated in Ex.P/4 whatever the police wanted. He was under constant fear of the police because he was told that in case he would not give a favourable statement he would be implicated in the case. So these two star witnesses of the prosecution do not support the case of the prosecution about the murder of Rajaram by accused appellant. It was possible in these circumstances that they were under the constant threat of the police and, therefore, they might have stated before the Magistrate implicating the accused appellant. (10) Thus, there remains only the statement of PW6 Bhadar Ram to the effect that Rajaram was taken in the jeep by Anil Kumar. It was possible in these circumstances that they were under the constant threat of the police and, therefore, they might have stated before the Magistrate implicating the accused appellant. (10) Thus, there remains only the statement of PW6 Bhadar Ram to the effect that Rajaram was taken in the jeep by Anil Kumar. Bhadar Ram is a real brother of Rajaram but he is also the step father of Anil Kumar. It may be possible that Anil Kumar might have taken Rajaram in the jeep but there is no evidence to the effect that Rajaram was taken to the site of occurrence because PW 1 Prakash and PW2 Chhoturam do not support. Thus the story of last seen is of not any help to the pro- secution in this case. (11) The case of the prosecution was that Anil Kumar took a jeep No. RRC-5900 on 16.10.1992 which was being driven by Prakash in which Chhoturam was an occupant and took it to the house of Balwant Singh and Anil Kumar had gone to meet his grand mother in village 81 LNP but the story of meeting his grand mother was also not supported by PW 3 Balwant Singh. According to PW 3 Balwant Singh, Anil Kumar never came to him in a jeep and there appears to be no reason to disbelieve him. PW 7 Balram was examined by prosecution to prove that Anil Kumar was not happy with Rajaram because Rajaram had obtained money of Theka from Balram . But PW 7 Balram has not supported it. He, of course , admits that he took the land of Rajaram on Theka @ Rs.1650/- per bigha.He has stated that Rajaram Anil Kumar had come only once when Theka was given to him and thereafter Anil Kumar never came. So the story of enmity between deceased and the accused appellant is also not proved. (12) PW 8 Ghanshyam also does not support the case of the prosecution about differences between the appellant and Rajaram. Prosecution wanted to prove from this witness that he had come to realise the money but the story has not been proved by the witness. PW 9 Balveer Singh has proved Ex. P/18 which is a Thekanama executed by Rajaram in favour of Ghanshyam for one year and which mentions that some amount was outstanding against Ghanshyam. Prosecution wanted to prove from this witness that he had come to realise the money but the story has not been proved by the witness. PW 9 Balveer Singh has proved Ex. P/18 which is a Thekanama executed by Rajaram in favour of Ghanshyam for one year and which mentions that some amount was outstanding against Ghanshyam. It does not men- tion the name of appellant, therefore, demand of money by appellant could not have been possible. However, the witness PW 9 Balveer Singh has stated that advance money was given to Rajaram. The circumstance of Theka in favour of the appellant and Rajaram both is not proved and,therefore, appellant could not have asked anybody to give money to him with regard to Theka. (13) The case of the Prosecution is that the fire arm used by the appellant to kill Rajaram was recovered at his instance. According to the learned counsel for the defence the prosecution has not been able to prove that the fire arm alleged to have been recovered from the accused appellant was used for the purpose of killing deceased Rajaram because the empty cartridge recovered 50 bighas away from the site of incident is itself a proof that the accused appellant fired from the fire arm on Rajaram. (14) We have perused the statemment of Noor Mohd. PW 13. He has stated that the accused appellant gave information u/s 27 of India Evidence Act to the effect that he would get the empty cartridge recovered .This information was recor- ded in Ex. P/32 and an empty cartridge was recoverd vide Ex. P/33. He admitted in the cross-examination that this recovery was made at a distance of about 50 bighas away from the place of incident. He admitted that no cartridge was found near the dead body of Rajaram when he inspected the site immediately after the FIR was lodged. Thus the recovery of empty cartridge does not connect the accused appellant with the crime. (15). Another circumstances relied by the prosecution is that a purse was recovered from the side pocket of the shirt of Rajaram. A pellet was embedded in it. The pellet was recovered vide Ex. P/14. This pellet was sent to the FSL for examination. Ex P/39 is the report relating to this pellet. It was compared with 60 lead pellets which were sent for examination to the FSL. A pellet was embedded in it. The pellet was recovered vide Ex. P/14. This pellet was sent to the FSL for examination. Ex P/39 is the report relating to this pellet. It was compared with 60 lead pellets which were sent for examination to the FSL. These pellets in large number were recovered from the dead body of Rajaram as per the statement of PW 4 Dr. Bahadur Singh who had sealed them in a packet and handed over to the police. According to report Ex. P/39 the size of the pellet found embedded in purse and other 60 lead pellets was same. The size of the lead pellet embedded in the purse might be the same as of the pellets found in the body of the deceased but it does not prove that the accused had fired the fire arm on Rajaram because firstly there is no ocular evidence to the fact and secondly the time of fire last made could not be ascertained by the FSL when, it examined the fire arm. The empty cartridge was recovered 50 bighas away from the side of incident might have been fired from the pistol but there should be clinching evidence that it was the accused and accused alone who fired on Rajaram and killed him. This circumstance of recovery of purse in which pellet was embedded does not connect the accused appellant with the crime. (16). Of course country made 12 bore pistol was recovered at the instance of the accused appellant vide Ex. P/7. PW 13 Noor Mohd. has proved that the accused appellant had given an information on 23.10.1992 u/s. 27 of Indian Evidence Act on the basis of which country made pistol and a live cartridge were recovered and Ex. P/7 was prepared. The site plan of the place from where they were recovered is Ex/ P/8. This recovery is further proved by PW 5 Anwar Mohd. and we are of the view that the recovery of pistol and a live cartridge is proved by their evidence. (17). Sanction Ex P/38 was issued by the District Magistrate, Sriganganagar on 17.4.1993 which has also been proved, therefore, the learned Sessions Judge was right in convicting the accused appellant for offence u/s. 25 of Arms Act. But the case u/s. 302 IPC and Sec. 27 of Arms Act is not proved against the accused appellant. (18). (17). Sanction Ex P/38 was issued by the District Magistrate, Sriganganagar on 17.4.1993 which has also been proved, therefore, the learned Sessions Judge was right in convicting the accused appellant for offence u/s. 25 of Arms Act. But the case u/s. 302 IPC and Sec. 27 of Arms Act is not proved against the accused appellant. (18). In view of above discussion, accused appellant should be acquitted from the charge of Sec. 302 IPC and Sec. 27 of Arms Act. But his conviction u/s. 25 of Arms Act should be maintained. (19). In the result, the appeal is partly allowed. Accused appellant is acquitted of the offence u/s. 302 IPC and Sec. 27 of Arms Act. His conviction and sentence u/s. 25 of Arms Act is maintained. He has already suffered the period of imprisonment u/s. 25 of Arms Act. He is in custody and shall be released forthwith if he is not required in any other case.