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2004 DIGILAW 958 (RAJ)

Kuldeep S/o Kashiram v. State of Rajasthan

2004-07-09

O.P.BISHNOI

body2004
JUDGMENT 1. - This appeal has been filed by the three accused-persons Kuldeep, Subhash and Vijay Pal, who have been found guilty for the offences punishable under sections 307,307/34 of the Indian Penal Code and Section 27 of the Arms Act by the learned Sessions Judge, Sriganganagar vide judgment dated 7.10.1987. 2. According to the prosecution story, the incident took place on 7.2.1986 at 5.30 p.m. and the oral FIR Ex.P/1 was lodged by PW-1 Mohan Lal at 6.15 p.m. on 7.2.1986 at Police Station, Sadar (Sriganganagar). 3. According to the FIR Ex.P/1 Mohan Lal and his son Hansraj (PW- 2) were returning from Sriganganagar to their residence Chak No. 2Y and the three appellants and Mukand Lal and Binja Ram were waiting with fire-arms near the tube-well of Labh Singh. Mukand Lal had a double barrel gun, Kuldeep had a single barrel gun, Binja Ram had a rifle and pistols were wielded by Vijay Pal and Subhash. When the motor-cycle came near the said five accused-persons, all the five shouted to the effect that the enemies have come who must be killed. Thereupon the accused-Kuldeep fired his gun which hit PW-2 Hansraj. Thereafter PW-1 Mohan Lal took to his heels and went behind a 'kikar' tree. Mukand Lal fired at Mohan Lal, as a result of which a pellet injury was received by Mohan Lal on the middle finger of his left-hand. Mohan Lal and Hansraj both raised hue and cry, consequent to which PW-3 Omprakash (nephew of Mohan Lal) appeared on the scene, who was going to a flour-mill and when he dared the accused-persons all the five took to their heels. A case under Sections 147, 148, 149 and 307 of the Indian Penal Code and Section 27 of the Arms Act was registered. Initially challan was filed against Subhash Chand and Kuldeep Kumar. Thereafter, the investigation was changed and the accused-Vijay Pal and Omprakash were also challaned. It was found that Mukand Lal and Binja Ram were not involved in the incident. The said trial Court heard the arguments and found that there was no evidence against the said Omprakash and consequently, an order of discharge was passed vis-a-vis Omprakash on 18.7.1986. The remaining thee Subhash, Kuldeep and Vijay Pal were charged for the offences punishable under sections 307-307/34 of the Indian Penal Code and Section 27 of the Arms Act. The said trial Court heard the arguments and found that there was no evidence against the said Omprakash and consequently, an order of discharge was passed vis-a-vis Omprakash on 18.7.1986. The remaining thee Subhash, Kuldeep and Vijay Pal were charged for the offences punishable under sections 307-307/34 of the Indian Penal Code and Section 27 of the Arms Act. All the three pleaded not guilty. 4. Thereafter on an application under section 319 of the Criminal Procedure Code by the complainant-Mohan Lal, the learned trial Court passed an order of cognizance for the offences punishable under Sections 148 and 307 of the Indian Penal Code and Section 27 of the Arms Act against Mukand Lal and Binja Ram. 5. Consequently, the charges were reframed the all the said five accused-persons were charged for the offences punishable u/ss.148, 307-307/149 of the Indian Penal Code and Section 27 of the Arms Act. All the five pleaded not guilty. Thirteen witnesses were examined by the prosecution and none was examined in defence. The learned trial Court then heard the arguments and delivered the judgment on 7.10.1987. Mukand Lal and Binja Ram were acquitted of all the charges. The three appellants were acquitted in respect of the offence punishable under section 148 of the Indian Penal Code. However, the three appellants were found guilty as sated supra. For the offences punishable under sections 307-307/34 of the Indian Penal Code rigorous imprisonment for 3 years and a fine of Rs. 100/- has been awarded. For the offence punishable under section 27 of the Arms Act. Rigorous Imprisonment for two years and a fine of Rs. 100/- has been awarded. For non-payment of fine, additional rigorous imprisonment for 15 days has been ordered in respect of both the charges. Hence the appeal. 6. I have heard the learned counsel for the appellants as well as learned Public Prosecutor for the State and have gone through the record of the trial Court. I find that the conclusions drawn by the trial Court against the three appellants are unsustainable and the appeal deserves to be allowed. 7. PW-1 Mohan Lal, PW-2 Hansraj and PW-3 Omprakash are the only eye-witnesses examined in the case. All the three have deposed against all the five accused-persons. I find that the conclusions drawn by the trial Court against the three appellants are unsustainable and the appeal deserves to be allowed. 7. PW-1 Mohan Lal, PW-2 Hansraj and PW-3 Omprakash are the only eye-witnesses examined in the case. All the three have deposed against all the five accused-persons. The learned counsel for the appellant has argued that the said three witnesses are all close relations and they have shown utter disregard for oath and have tried to depose untruths. It is further submitted that inspite of the fact that there were other independent witnesses, the prosecution has taken case to not to examine even a single independent witness and PW-3 Omprakash has been projected as a disinterested witness whereas he is a very close relations of the two injured persons. It is further submitted that the investigating agency was not at all objective during investigation and the case was instigated with a single motive to file a challan against the accused-persons. It is submitted that Omprakash apart from being a close relation was a chance witnesses and it is highly unbelievable that he was present during the alleged incident. Further it is submitted that there is no evidence to suggest that the five accused-persons named in the FIR had any previous inkling about the programme of the two injured persons and it is strange that still all the five were waiting for them with deadly weapons. Further it is submitted that as a matter of fact, the FIR Ex.P/1 was not recorded till 8.2.1986 and has been anti-dated as if the same was recorded on 7.2.1986 at 6.15 p.m. Further it is argued that as per the prosecution story, PW-1 Mohan Lal and PW-3 Omprakash both were armed with guns and it is strange that in the given circumstances none of them fired the guns in self defence. 8. The learned trial Court believed all the aforesaid contentions raised by the defence and on their basis Mukand Lal and Binja Ram were acquitted. The three appellants were however found guilty mainly on the basis that the weapons of offence were recovered at there instance. 9. I find that the approach of the learned trial Court in arriving at a finding of guilt against the three appellants cannot be justified. 10. The three appellants were however found guilty mainly on the basis that the weapons of offence were recovered at there instance. 9. I find that the approach of the learned trial Court in arriving at a finding of guilt against the three appellants cannot be justified. 10. It is admitted by the witnesses that the incident occurred near the houses of Banwari Lal, Omprakash and Labh Singh. Needless to say that the occupants of these houses were bound to learn about the incident in which more than a dozen gun shots, allegedly, were fired. There is a mention in the charge-sheet itself that during investigation the witnesses Shahi Ram, Subhash Chand, Ravindra Kumar, Hanuman Prasad, Bhoop Singh, Basti Ram and Srikrishna were examined under section 161 of the Criminal Procedure Code Strangely enough the names of Shahi Ram, Subhash Chand, Ravindra Kumar, Hanuman Prasad and Bhoop Singh do not find place in the calendar of witnesses. Their statements, which were recorded under section 161 of the Cr.P.C., have also been with-held from the Court. Basti Ram and Srikrishna, who according to their statements recorded under section 161 of the Cr.P.C., were eye-witnesses and who allegedly saw the accused-persons with their arms prior to the incident have not been examined by the concerned prosecutor for reasons best known to him. In this way every care has been taken to keep the independent and disinterested witnesses away from the Court. 11. So far as PW-1 Mohan Lal, PW-2 Hansraj and PW-3 Omprakash are concerned, it is more than clear in the light of the revenue record Ex.D/5 and other evidence that they are close relations and possibly all the three are members of one family. From the revenue record Ex.D/5, it is clear that Mani Ram was the brother of PW-1 Mohan LaL,Shanti admittedly was the wife of the said Mani Ram. Out of this wed-lock Shanti delivered a male child, who is none else but PW-3 Omprakash. Thereafter, Mani Ram died and Smt. Shanti the widow of Mani Ram contracted a 'nata' marriage with PW-1 Mohan Lal and out of this wed-lock PW-2 Hansraj was born. In this way PW-2 Hansraj and PW-3 Omprakash are both sons of the said Sint. Shanti. In the FIR Ex.P/1 Mohan Lal has described PW-3 Omprakash as his nephew. Thereafter, Mani Ram died and Smt. Shanti the widow of Mani Ram contracted a 'nata' marriage with PW-1 Mohan Lal and out of this wed-lock PW-2 Hansraj was born. In this way PW-2 Hansraj and PW-3 Omprakash are both sons of the said Sint. Shanti. In the FIR Ex.P/1 Mohan Lal has described PW-3 Omprakash as his nephew. However, during deposition all the said three witnesses have told lies and have tried to deny the said relationship amongst them. That unmistakably proved that the three witnesses have no regard for oath and consequently, they cannot be termed as witnesses of sterling worth. Needless to say that when independent witnesses are available but are not examined and when the witnesses, who are examined, are not reliable it becomes impossible to believe the prosecution story. 12. The learned trial Court has not believed that the FIR Ex.P/1 was lodged on 7.2.1986 at 6.15 p.m. The learned trial Court has found that initially the FIR was given numbered 16/1986. However, subsequently, the same has been numbered as 17/1986. The police- station as well as the concerned Court are both situate in Ganganagar. Still the date of dispatch on Ex.P/l is recorded as 8.2.1986. There is no reason as to why this FIR did not reached the Magistrate on 7.2.1986 itself. It will not be out of place to mention here that the statement (Ex.D/3) of PW-3 Omprakash was neither recorded on 7.2.1986 nor on 8.2.1986 and was actually recorded on 9.2.1986. That goes to show that in fact no FIR was registered on 7.2.1986 and the prosecution side was deliberating as to who should be implicated and who should be shown as an eye- witness. This aspect in itself is fatal to the reliability of the prosecution story. 13. The learned trial Court has rightly disbelieved the prosecution case in the light of the submissions made by the defence side and has acquitted Mukand Lal and Binja Ram. The ground for conviction of the three appellants, as pointed out earlier, is the alleged recoveries of the alleged weapons of the offence. I find that the evidence in respect of the alleged recoveries cannot be made the basis of conviction. According to the prosecution story, a gun was got recovered by the appellant- Kuldeep on 16.2.1986 vide the recovery memo Ex.P/24. Subhash Chand allegedly got recovered a pistol on 17.2.1986 vide recovery memo Ex.P/26. I find that the evidence in respect of the alleged recoveries cannot be made the basis of conviction. According to the prosecution story, a gun was got recovered by the appellant- Kuldeep on 16.2.1986 vide the recovery memo Ex.P/24. Subhash Chand allegedly got recovered a pistol on 17.2.1986 vide recovery memo Ex.P/26. The third appellant-Vijay Pal, according to the prosecution story, got recovered the pistol on 15.5.1986 vide recovery memo Ex.P/38. Strangely enough there is no independent corroboration from the 'motbir' witnesses mentioned in the three recovery memos. The recoveries dated 16.2.1986 and 17.2.1986 are said to be PW-9 Sukh Dev Singh, SHO, whereas the recovery dated 15.5.1986 is said to be by PW-12 Sher Singh, ASI. 14. The recovery and recovery memo Ex.P/24 was allegedly witnessed by two 'motbirs' Prabhati Lal and Ram Kumar. Similarly, the recovery and recovery memo Ex.P/38 was witnessed by Het Ram and Omprakash as 'motbirs'. Strangely enough none of the said four 'motbirs' have been examined to corroborate the alleged recoveries. Needless to say that the sole justification of keeping' the 'motbirs' is for the purpose that the story is corroborated by independent witnesses. Regarding the recovery by Subhash Chand dated 17.2.1986 PW-3 Omprakash and Ramswaroop (son of PW-1 Mohan Lal) were kept as 'motbir' witnesses. The first question which arises is that both the 'motbirs' cannot be termed as disinterested witnesses, Ramswaroop being the son of the injured and PW-3 Omprakash being a nephew and brother of the three injured. Ramswaroop has not been examined. PW-3 Omprakash does not say that any pistol was recovered in his presence at the instance of the appellant-Subhash. I find that in the aforementioned circumstances, the recoveries-in-question cannot be attached with any importance looking to the fact that in the instant case it has been found that the case was not investigated with objectivity. 15. In the result, the appeal is allowed. The impugned judgment of the learned trial Court so far as it is goes against the appellants is set-aside. The three appellants are acquitted of all the charges. They are on bail and their bail-bonds are cancelled.Appeal allowed. *******