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2005 DIGILAW 252 (RAJ)

Soran v. State of Rajasthan

2005-01-28

F.C.BANSAL

body2005
Judgment F.C. Bansal, J.-The instant appeal is directed against the Judgment dated 22.02.2003 passed by the learned Additional Sessions Judge, Sambhar Lake, District Jaipur in Sessions Case No. 10/2002 whereby all the accused appellant have been convicted and sentenced as under:- Soran, Vinod @ Vimal, Mukeel Ahmed , Satyabhan Singh @ Sattan and Bhomraj Under 402, IPC R.I. for seven years and a fine of Rs. 2,000/-, in default of payment of fine to further suffer S.I. for one year. Under Sections 307/149, IPC R.I. for seven years and a fine of Rs. 2,000/-, in default of payment of fine to further suffer S.I. for one year. Under Sections 3/25 of the Arms Act R.I. for three years and a fine of Rs. 1,000/-, in default of payment of fine to further suffer S.I. for six months. The trial Court has acquitted the accused-appellants of the charge under Section 399 IPC. 2. In nutshell the case of the prosecution is that on 210.2001 at 6:40 p.m. on receiving information on telephone to the effect that 7-8 persons armed with weapons were making preparation for committing dacoity, PW. 22 Setharam, SHO P.S. Dudu, District Jaipur alongwith Satyapal Singh, SI, Raisal Singh, SI, Nandsingh, ASI, Chhotu Khan, ASI, Ramniwas, Kanhaiyalal, Nandaram, Ramesh Chand Sharma, Satyanarain and Rohitash Kumar, Constables reached near Tetarwalon-ki-Dhani at 7:10 p.m. and found 7-8 accused-persons beside the road. On seeing the police party they tried to escape. Police party and some villagers who had accompanied the police party from bus stand Padasauli followed the accused-persons and encircled them whereupon the accused appellants and other co-accused fired at the police party but nobody was hurt. Accused appellants Soran, Vinod, Mukeel Ahmed and Satyabhan Singh were arrested there and the remaining accused absconded. Accused appellant Bhomraj was arrested on 210.2001 vide Arrest Memo Exh. P-19. As per the prosecution case, one katta (country made pistol) was recovered from the possession of accused-appellant Soran, one live cartridge was recovered from the possession of appellant Bhomraj, one katta was recovered from the possession of appellant Vinod, two live cartridges were recovered from the possession of appellant Satyabhan Singh and one live cartridge was recovered from the possession of appellant Mukeel Ahmed. On his return at P.S. Dudu, Setharam, SHO registered FIR Exh. P-34 under Sections 399, 402, 307, IPC and Section 3/25 of the Arms Act and thereafter investigated the case. On his return at P.S. Dudu, Setharam, SHO registered FIR Exh. P-34 under Sections 399, 402, 307, IPC and Section 3/25 of the Arms Act and thereafter investigated the case. In due course the accused appellants came to be tried by the learned Additional Sessions Judge, Sambhar Lake, District Jaipur who convicted and sentenced the accused appellants as indicated here-in-above. 3. I have heard the learned Counsel for the accused-appellants, learned Public Prosecutor for the State and have also perused the impugned Judgment as also the prosecution evidence. 4. As regards charge under Sections 3/25 of the Arms Act, PW. 22 Setharam, SHO, P.S. Dudu has stated before the trial Court that at the time of the arrest and on personal search one live cartridge was recovered from the possession of Mukeel Ahmed, one katta and one live cartridge were recovered from the possession of Vinod, one katta and one live cartridge were recovered from the possession of Soran and two live cartridges were recovered from the possession of Satyabhan Singh and he prepared Seizure Memos Exh. P-5, Exh. P-6, Exh. P-7, and Exh. P-8 respectively. As per the prosecution case, at the time of the above recovery of kattas and cartridges, Motbirs PW. 1 Norat @ Navrat and PW. 8 Kanaram were present but both Kanaram and Navrat did not support the prosecution so far as the recovery of kattas and cartridges is concerned. PW. 1 Navrat has stated that he cannot identify those four accused who were arrested by the police. PW. 8 Kanaram has stated that all the accused present in the Court were not arrested before him. That apart, kattas and cartridges allegedly recovered from the possession of the accused appellants were not shown to both Navrat and Kanaram when they were examined by the trial Court. Even PW. 22 Setharam did not identify these weapons and cartridges before the trial Court. These weapons and cartridges were not tendered in evidence by the prosecution. No question about the recovery of kattas and cartridges was put to the accused appellants when they were examined under Section 313, CrPC. In view of these facts, I am of the considered view that the prosecution has failed to prove the recovery of kattas and cartridges from the possession of appellants Soran, Vinod, Mukeel Ahmed and Satyabhan Singh. 5. No question about the recovery of kattas and cartridges was put to the accused appellants when they were examined under Section 313, CrPC. In view of these facts, I am of the considered view that the prosecution has failed to prove the recovery of kattas and cartridges from the possession of appellants Soran, Vinod, Mukeel Ahmed and Satyabhan Singh. 5. One live cartridge was allegedly recovered from the possession of accused appellant Bhomraj by PW. 7 Raisal Singh, S.I. (Probationer) posted at P.S. Dudu on 210.2001 in presence of Ramniwas and Kanwar Singh, Motbirs. Both Ramniwas and Kanwar Singh are police officials. Kanwar Singh has not been examined by the prosecution. PW. 12 Ramniwas has stated nothing about the alleged recovery of cartridge from the possession of Bhomraj. Cartridge allegedly recovered from the possession of accused appellant Bhomraj was neither shown to PW. 7 Raisal Singh and PW. 12 Ramniwas when their statements were recorded by the trial Court nor it was tendered in evidence. No question in this regard was put to Bhomraj when he was examined under Section 313, CrPC. Therefore, I have come to the conclusion that the prosecution has failed to prove the recovery of one live cartridge from the possession of accused appellant Bhomraj. 6. Consequently, all the accused appellants are entitled to be acquitted from the charge under Section 3/25 of the Arms Act. 7. The trial Court has also found these appellants guilty under Section 307/149 IPC. After having perused the entire prosecution evidence, I am of the opinion that the prosecution has also failed to prove this charge against the appellants. In the alleged incident nobody sustained any injury on his person. PW. 1 Navrat has stated that three shots were fired by the accused. PW. 2 Roopchand has stated that 3-4 shots were fired but he could not see as to who had fired these shots. PW. 5 Nandsingh, ASI has stated that only one shot was fired and it was fired in the air. PW. 6 Chhotu Khan has stated that only two shots were fired. PW. 7 Raisal Singh has stated that 4-5 shots were fired. 8. PW. 5 Nandsingh, ASI has stated that only one shot was fired and it was fired in the air. PW. 6 Chhotu Khan has stated that only two shots were fired. PW. 7 Raisal Singh has stated that 4-5 shots were fired. 8. In view of the contradictory statements of the witnesses with regard to number of shots fired by the accused appellants and absence of injury on the person of the police officials and other villagers who had accompanied the police party, I am of the view that the prosecution has filed to prove that any of the accused appellants had fired any shot with his weapon. Therefore, the accused appellants cannot be held guilty under Section 307/149 IPC. 9. As regards charge under Section 402, IPC, the trial Court has acquitted all the appellants of the charge under Section 399, IPC. From the prosecution evidence it does not appear that the appellants had assembled near village Padasauli for the purpose of committing dacoity. From the prosecution evidence it also appears that quarrel took place between the appellants and some villagers who called the police and thereafter false case was registered against the appellants. Hence, the prosecution has failed to prove the charge under Section 402, IPC against the accused appellants. 10. Consequently, the appeal of accused appellants Soran, Vinod @ Vimal, Mukeel Ahmed, Satyabhan Singh @ Sattan and Bhomraj is allowed. While setting-aside the impugned Judgment of their conviction and sentence dated 22.02.2003 passed by the learned Additional Sessions Judge, Sambhar Lake, District Jaipur, all the accused appellants are acquitted of the charges under Sections 402, 307 read with Section 149, IPC and Section 3/25 of the Arms Act. They are in jail. They shall be released forthwith, if not required in any other case.