Research › Search › Judgment

Rajasthan High Court · body

2006 DIGILAW 1200 (RAJ)

Bega Ram v. State of Rajasthan

2006-04-17

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-This Criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short the Code hereinafter) is directed against the order dated 11.02.2005 passed by Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Bikaner (for short the trial Court hereinafter) in Sessions Case No. 19/2002, whereby the trial Court dismissed the application filed by the petitioner complainant under Section 319, of the Code for arraigning Non-petitioner No. 2 Ashu Ram as an accused on the basis of evidence available on record, who not being the accused, has committed the offence alongwith the other co-accused facing trial. Aggrieved by the order impugned, the petitioner has filed the instant revision petition. 2. I have heard learned Counsel for the parties. Perused the order impugned as also challan papers and statements of PW. 3 Begaram and PW. 4 Sagar who are injured eye-witnesses. 3. It is contended by the learned Counsel for the petitioner that Non-petitioner No. 2 Ashu Ram has been named as main accused alongwith other co-accused in the case right from first information report which was promptly lodged on 25.06.2002. In the first information report, a specific role has been assigned to the Non-petitioner No. 2 that he was armed with Barchhi and inflicted injury to deceased Mohan Ram. There is also allegation in the first information report that thereafter he fired as many as four gunshot and ran away with other co-accused persons. Learned Counsel submits that in the instant case, as many as 13 witnesses, who witnessed the occurrence, have stated in their statements under Section 161 of the Code that it was Non-petitioner No. 2 Ashu Ram who came alongwith other co-accused armed with Barchhi and inflicted a blow from the handle side of the Birchhi to deceased Mohanram. Two eye-witnesses examined by the trial Court namely PW. 3 Begaram and PW. 4 Sagar made similar statement on oath which was subjected to cross-examination but both the witnesses withstood the cross-examination and, therefore, according to learned Counsel for the petitioner there is evidence that the Non-petitioner No. 2, not being the accused in the case has committed the offence of murder apart from the other offences, may be tried together with the accused facing trial. 4. Learned Counsel appearing for the Non-petitioner No. 2 submits that there are statements of witnesses recorded by the police under Section 161 of the Code. 4. Learned Counsel appearing for the Non-petitioner No. 2 submits that there are statements of witnesses recorded by the police under Section 161 of the Code. Some of the witnesses have stated that the Non-petitioner No. 2 hosted a dinner to a sitting Member of Legislative Assembly and his presence has been shown elsewhere and, therefore, the police on the basis of plea of alibi did not challan him. Learned Counsel for the Non-petitioner No. 2 further submits that there is no reason to disbelieve the statement of those witnesses supporting the pleas of alibi. 5. I have given my thoughtful consideration to the rival submissions made by the Counsel for the parties. 6. In the instant case, PW 3 Begaram is the author of first information report. The occurrence is of intervening night of 24.06.2005 and 25.06.2005 and the first information report was promptly lodged on 25.06.2005 i.e., within 2-3 hours of the occurrence. In the first information report, the Non-petitioner No. 2 has been named as Accused No. 1 in the case with the specific allegation that he was armed with Barchhi and inflicted injury to deceased Mohan Ram. The injury corroborates from the post-mortem report i.e., Injury No. 1. The deceased suffered as many as 12 injuries, apart from deceased Mohanram, other injured persons namely Smt. Anchi suffered five injuries, Sagar suffered seven injuries and Begaram suffered one injury. These three injured persons, apart from the other persons namely Madanlal, Hajariram, Murliram, witness Ashuram, Smt. Kamla, Smt. Guddi, Smt. Gavara Devi, Ms. Ganga and Ms. Urmila have also shown the presence of Non-petitioner No. 2 at the place of occurrence and active participation in the commission of crime. Despite there being a very strong and over voluminous evidence during investigation, for the reasons best known to the police, the Non-petitioner No. 2 was not challaned. After the statement of author of FIR as also the injured eye-witnesses PW. 3 Begaram and PW. 4 Sagar who also sufffered number of injuries in the said occurrence, the petitioner filed an application seeking impleadment of Non-petitioner No. 2 as an accused on the basis of evidence available on record. After the statement of author of FIR as also the injured eye-witnesses PW. 3 Begaram and PW. 4 Sagar who also sufffered number of injuries in the said occurrence, the petitioner filed an application seeking impleadment of Non-petitioner No. 2 as an accused on the basis of evidence available on record. The trial Court declined to implead the Non-petitioner No. 2 as an accused in the case mainly on the ground that the Non-petitioner No. 2 is from a different place and there is no motive for him to commit the murder as there being no enmity between the Non-petitioner No. 2 and the deceased. The other ground which persuaded the trial Court to decline the impleadment of Non-petitioner No. 2 as an accused, was that these injured eye-witnesses named above are the members of the same family and, therefore, consistent statement of these witnesses is natural. The occurrence is of mid night i.e., 24:00 hours to 1.00 AM and presence of family members is most natural at such an hour in the night. It is not expected that the other persons even from the neighbouring area or passer-by could witness the occurrence. The reasons assigned by the trial Court while dismissing the application cannot be said to be cogent and convincing. On the contrary, it is based on surmises and conjectures. When there is specific evidence showing the specific role, the overt act of the Non-petitioner No. 2 in a murder case, simply because the injured witnesses are from the same family, it cannot be a ground to disbelieve the case of the prosecution at that stage. In the circumstances, therefore, the order impugned cannot be sustained and is liable to be set aside. 7. Consequently, the revision petition is allowed. The order impugned dated 11.02.2005 is hereby set aside. The application filed by the petitioner under Section 319 of the Code is allowed. Non-petitioner No. 2 Ashu Ram S/o Jetha Ram is arraigned as accused in Sessions Case No. 19/02 and the trial Court shall secure his presence by a non-bailable warrant and shall be tried together with the co-accused facing trial. Stay petition also stands disposed of .