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2004 DIGILAW 1468 (RAJ)

Mannu S/o Shri Bhura v. The State of Rajasthan

2004-10-07

KHEM CHAND SHARMA

body2004
JUDGMENT 1. 1. Since these two Criminal Appeals under Section 374 Cr.P.C., one by appellant Mannu and another by appellant Raman arise out of the judgment and order dated 20.9.2001 passed by the learned Additional Sessions Judge, Ramgang Mandi, district Kota in Sessions Case No. 117/99, they are being decided by this common judgment. 2. Both the appellants were tried by the trial court for offence under Sections 395, 396 and 397 IPC and at the conclusion of trial, the learned trial Judge found both of them guilty of having committed offence punishable under Sections 395, 396 and 397 IPC and accordingly convicted and sentenced them in the following manner :Under Section 395 IPC : Rigorous imprisonment for ten years with a fine of Rs. 500/-, in default of payment of fine, each to further undergo simple imprisonment for three months. Under Section 396 IPC : Rigorous imprisonment for ten years with a fine of Rs. 5001-, in default of payment of fine, each to further undergo simple imprisonment for three months. Under Section 397 IPC : Rigorous imprisonment for seven years. Briefly stated the facts giving rise to the present appeal are that Parcha Bayan (Ext. P4) of one Dev Karan was recorded by the police on 14.11.95, wherein the injured has, inter-alia alleged that he was Accountant (Muneem) at the Petrol Pump of one Govind Lal Jadav Chand. At about 10 PM on 14.11.95 he along with Constable Permanand and Vijaipal Singh sitting in the cabin of Petrol Pump and some employees of the said Petrol Pump were also present there. He alleged that constable Permanand left the cabin and went to urinate, while one Dilip went to record meter reading. In the meantime, 5-7 persons entered into the cabin. All are armed with iron rods, stones and Dharias. Soon they entered the cabin, a blow was struck on the head. Kishan Lal and Constable Vijaipal were also struck on their heads with the weapons. According to the informant, one of the miscreants pulled open to drawer of the counter and took away the cash lying therein. Constable Vijaypal Singh rushed out and raised an alarm and hearing alarm, some persons came there for help. The miscreants jumped over the wall and ran away and while leaving the place, the miscreants opened fire with Deshi Katta. Constable Vijaypal Singh rushed out and raised an alarm and hearing alarm, some persons came there for help. The miscreants jumped over the wall and ran away and while leaving the place, the miscreants opened fire with Deshi Katta. When he came out of the cabin, he found Parmanand lying on the ground in injured condition. According to the informant, all the miscreants were youth and he can identify them, if confronted. 3. On the above Parcha Bayan, a regular case vide FIR, Ext. P22 was registered for offence under Sections 395 and 397 IPC at Police Station Modak. During investigation, injured Parmanand succumbed to his injuries and as a result of which Section 396 1PC also came to be added. After completion of investigation, a charge sheet came to be filed against the appellants in the court of Judicial Magistrate, Ramganimandi, who in turn committed the case to the court of Sessions. 4. The learned trial court, on the basis of evidence and material collected during investigation, framed charges against the appellants for offences under Sections 395, 396 and 397 IPC. The appellants denied the charges and claimed trial. 5. In order to prove its case, the prosecution examined as many as 19 witnesses and got exhibited some documents. After the prosecution evidence was complete, the appellant was examined under Section 313 Cr.PC. 6. At the conclusion of trial, the learned trial Judge found the accused appellants guilty of having committed offence punishable under Sections 395, 396 and 397 IPC and accordingly convicted and sentenced them in the manner stated herein above. Hence this appeal against conviction. 7. I have heard learned counsel for the parties and perused the impugned judgment, the evidence and material on record. 8. Mr. V.R. Bajwa, learned counsel for the appellants has assailed the conviction of the appellants on the ground that prosecution has utterly failed to prove its case beyond doubt. According to him, 15-20 miscreants entered into the cabin of the Petrol Pump. but the investigating agency nabbed only the appellants. This fact in itself is sufficient to doubt the genesis of the prosecution case. Learned counsel further argued that the entire case soly rests upon the evidence of PW12 Vijay Pal and by no stretch of imagination he could be termed to be a witness of sterling worth. but the investigating agency nabbed only the appellants. This fact in itself is sufficient to doubt the genesis of the prosecution case. Learned counsel further argued that the entire case soly rests upon the evidence of PW12 Vijay Pal and by no stretch of imagination he could be termed to be a witness of sterling worth. His statement suffers from serious discrepancies and the trial court has committed serious error in placing implicit reliance on his testimony. 9. Per contra, learned Public Prosecutor has supported the findings arrived at by the trial court and has submitted that the conviction is based on proper appreciation of evidence, which calls for no interference. 10. I have given my anxious consideration to the rival submissions and gone through the judgment under challenge and the evidence on record. 11. As per the parcha bayan (Ex.P4) of PW 2 Dev Karan the incident took place in the night at 10.00 PM while he was sitting in the cabin of Petrol Pump. At that time, Manager Kishanlal, Helper Dilip and two constables Vijaypal and deceased Permanand were also present in the cabin. PW 1 Kishan Lal Manager of the Petrol Pump has not supported the prosecution case and has been declared hostile. He has deposed that he could not state as to how many miscreants entered into the cabin. He was struck a 'Dhariya' blow, as a result of which he became unconscious. When he regained consciousness, none was there on the petrol pump. According to him, he was not able to identity any one out of those 5-7. Having seen the appellants in the court, the witness stated that he cannot say whether the appellants were involved in the incident or not. He was also permitted to be cross examined. In his cross examination, the witness refused to have seen 'marpeet' with Dilip and Parmanand Constable. 12. PW2 Dev Karan was examined as an eye witness of the incident. He deposed that at the time of incident Manager Kishan Lal was present in the cabin and Helper Dilip had left for recording meter reading. According to him, he felt that 7-8 persons might have entered. Thereafter they struck a Sariya blow on his head. The witness has not identified the appellants. He has deposed in categorical terms that the present appellants were not among those persons who committed dacoity at the Petrol Pump. According to him, he felt that 7-8 persons might have entered. Thereafter they struck a Sariya blow on his head. The witness has not identified the appellants. He has deposed in categorical terms that the present appellants were not among those persons who committed dacoity at the Petrol Pump. Surprisingly enough, this witness, despite his above specific deposition, he has not been declared hostile. Similarly, PW 3 Dilip who was also present at the time and place of incident could not identify any of the miscreants, but this witness has also not been declared hostile. 13. PW 5 Mohd. Salim was present at the tea stall at the time of Incident. He has stated that he can, identify the accused, if confronted. Having seen the accused in the court, the witness stated that "Wah Muijiman Hair Adalat Nahin Hai". Thus this witness could not identify the appellant, stil he has not been declared hostile. 14. PW9 Om Prakash, at the relevant time, was sitting at the tea stall. He has specifically deposed that he cannot identify the accused. Having seen the accused in the court, the witness stated that appellants Mannu and Raman present in the court were present at the time and place of incident. 15. PW10 Abdul Kalam along with Halim Bhai, Salim Bhai and Sethi Misntri was also sitting at the tea stall have not supported the prosecution case. and has been declared hostile. 16. Now remains the evidence of PW12 Vijay Pal Singh, on whose testimony the trial court has placed implicit reliance in basing conviction. This witness has deposed that in the night of incident, 7-8 persons entered into the cabin, while 2-3 persons remained standing out side the cabin. The miscreants started them beating. They were armed with Lathi, Dhariyas and Sariyas. Some one hit stone on his head. Dev Karan was also hit on his head by Dhariya. When he managed to came out of the cabin, some one opened fire, but the fire did not hit him. He did not see the face of the person who opened fire and that he cannot identify him. He further stated that miscreants forcibly snatched his HMT wrist watch and also took out Rs. 350/- kept in purse lying in the pocket of his trouser. When he came out of the cabin, he saw Constable Parmanand lying there in injured condition. He further stated that miscreants forcibly snatched his HMT wrist watch and also took out Rs. 350/- kept in purse lying in the pocket of his trouser. When he came out of the cabin, he saw Constable Parmanand lying there in injured condition. According to this witness could see the faces of the accused and happening of incident in the light of tube rods affixed in side and out side the cabin. The accused were not known to him prior to the incident. The incident happened on 18.11.95, while 'he statement of this witness came to be recorded on 20.2.2001 i.e. after e lapse of 5 years and 3 months. After this long interval of more than 5 years, the witness deposed that he can identify the persons involved in the incident even today. Having seen the appellants, the witness deposed that these two persons Mannu and Raman were involved in the incident. The witness stated that he had identified the appellants in the test identification parade held in sub jail, Ramganjmandi. The witness further deposed that he can identify all the persons involved in the incident, if confronted. In cross examination, the witness stated that the investigating officer had recorded his statement in regard to the incident and he had narrated the description of the accused. He then stated that he did not disclose anything about the description of the accused, before the Investigating Officer. 17. Having scanned the evidence of PW 12, I am of the considered view that his statement is self contradictory and it would not be safe to place implicit reliance on his testimony, more particularly when other eye witnesses have not supported the prosecution case. It is evident that PW 12 Vijay Pal Singh is not in a position to identify the miscreants against whom he has stated their overt acts, but on the contrary he has identified the appellants against whom he did not state any overt act. That apart, the witness is not in a position to disclose the names of those miscreants who looted him. It is important to reiterate that at one place the witness stated that he had disclosed the description of accused to the investigating officer, but again he denied to have disclosed their identity. That apart, the witness is not in a position to disclose the names of those miscreants who looted him. It is important to reiterate that at one place the witness stated that he had disclosed the description of accused to the investigating officer, but again he denied to have disclosed their identity. PW17 Rajpal, SHO of the concerned Police Station has also made it clear in his cross examination that Vijay Pal Singh did not disclose the description of the accused. That apart, in the light of what this witness has made contradictory statements, the identification of appellants in the court after a lapse of more than 4 years further raises serious doubt on his testimony. 18. PW 19 Pratap Singh has deposed that he got investigation of FIR No. 167/95 of Police Station Modak on 6.8.98. The Circle Officer had directed him to interrogate accused Mannu Singh and Raman etc. of Jhabua who have been arrested in case No. 39/98 of Police Station Suket for offence under Sections 395 and 397 IPC. Thereupon, he went to Police Station, Suket along with file of case No. 167/95. In the course of enquiry, appellant Mannu had informed him about their involvement in the incident of dacoity and murder. However, the accused were not arrested then and there and they could be arrested only on 31.5.99 i.e. after more than 9 months of their disclosing involvement in the present case, in the course of interrogation while they were in custody at Police Station Suket. That apart, it is evident from the statement of PW 18 Dilip Singh that he had arrested the appellants through production warrant. 19. Judged thus, it must be concluded that the evidence put forth by the prosecution and relied upon by the learned trial court is not sufficient to connect the appellants with the commission of crime, beyond reasonable doubt. Neither the identification of the appellants can be believed for the reasons stated above nor the testimony of PW12 Vijaypal is reliable and worthy of credence so as to place implicit reliance. For the reasons therefore, the conviction of the appellants cannot be sustained. 20. In the result, the appeal filed by appellants Mannu and Raman are allowed. Their conviction under Sections 395, 396 and 397 IPC and the sentences awarded thereunder are set aside and they are acquitted of the aforesaid charges. For the reasons therefore, the conviction of the appellants cannot be sustained. 20. In the result, the appeal filed by appellants Mannu and Raman are allowed. Their conviction under Sections 395, 396 and 397 IPC and the sentences awarded thereunder are set aside and they are acquitted of the aforesaid charges. Appellant Raman is on bail, he need not surrender to his bail bonds which stand discharged. Appellant Mannu is in jail, he shall be set at li:arty forthwith, if not required in any other case.Appeal Allowed - Conviction Set Aside. *******