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2006 DIGILAW 2252 (RAJ)

Hanja v. State of Rajasthan

2006-07-18

GOPAL KRISHAN VYAS

body2006
Judgment Gopal Krishan Vyas, J.-This appeal is directed against the Judgment passed by learned Additional Sessions Judge No. 2, Udaipur dated 28.04.1988 passed in Sessions Case No. 33/85 whereby the appellant has been convicted for offence under Section 392, IPC and sentenced to suffer rigorous imprisonment for three years and pay a fine of Rs. 200/-, in default of payment of fine to further undergo one months rigorous imprisonment. 2. According to facts to the case, upon information lodged by P.W.-8 Ram Gopal S/o Nandlal on 15.03.1984 at Police Station Rishabhdeo (Udaipur), it was alleged that he is a truck driver and at the relevant time he was coming with truck No. RNE 766 from Ahmedabad to Udaipur, at about 5.00 A.M. when he was near Keshariyaji-ki-Baori, he stopped his truck near the bridge and alighted there to defecate, he saw there the some persons who threw chilli powder into his eyes and caught hold of him and took him into the jungle. He alleged that they looted Rs. 2700/-from the pocket of his pants and snatched his Citizen wrist watch and ran away. Upon this information, FIR was registered at Police Station Rishabhdeo for offences punishable under Sections 392 and 323, IPC against unknown persons. During investigation, the police arrested 6 persons including the appellant Hanja on 27.06.1984. After completing the investigation, challan was filed against 6 persons including the present appellant. However, against 2 persons viz., Fatta and Kantilal being juvenile, challan was filed in the children Court and against rest of the four persons namely, Narayan, Rama, Hanja and Bhana, all residents of village Godiyawara (Distt. Udaipur), after committal, were charge-sheeted for offence under Section 395, IPC by the trial Court, In this case, the police filed the challan on the basis of circumstantial evidence and the recovery alleged to be made from the accused. 3. To prove its case before the Court, the prosecution led evidence of P.W.-1 Shivlal, P.W.-2 Nagaji Ram, P.W.-3 Kalyan Singh, P.W.-4 Prem Shanker, P.W.-5 Dhanraj, P.W.-6 Bhera, P.W.-7 Ramchandra, P.W.-8 Ram Gopal complainant, P.W.-9 Kanhaiyalal, P.W.-10 Bheru Singh and P.W.-1 Keshar Singh. After recording statements of the prosecution witnesses, statement of the appellant under Section 313, CrPC was recorded. For the purpose of adjudication, the learned trial Judge framed the following six points at Para 4 of the Judgment :- 4. After recording statements of the prosecution witnesses, statement of the appellant under Section 313, CrPC was recorded. For the purpose of adjudication, the learned trial Judge framed the following six points at Para 4 of the Judgment :- 4. In this case, point No. 1 was decided holding that the occurrence took place as alleged by the complainant but, in the adjudication on point No. 1, the trial Court concluded that on the alleged date of occurrence, complainant Ram Gopal, P.W.-8 was looted by four persons. On point No. 2, relating to recovery of Rs. 150/-from accused Bhaniya @ Bhana, the prosecution witness to the recovery P.W. -1 Shivlal deposed against the version put up by the prosecution and was declared hostile. However, another motbir P.W.-5 Dhanraj stood testimony to the recovery of Rs. 150/-from the house of Bhania @ Bhana as alleged by the prosecution; but, at the same time, he stated that he did not enter into the house and only the police persons and accused Bhana went into the house. In his statement under Section 313, CrPC accused Bhania denied the allegation and stated that he had been falsely implicated in the case. The trial Court concluded that at the information of the accused Bhania the police recovered Rs. 150/-from his house; but, from the record, I find that information was given by the accused on 19.07.1984 and said recovery is made on 24.07.1984. On the part of the prosecution, there is no explanation for this delay. About this delay, the trial Court only observed that the delay alone would not cause suspicion on the said recovery. 5. With regard to point No. 3 relating to the present appellant Hanja, it has been adjudicated on the basis of statement of P.W.-11 Kesar Singh, investigating officer and P.W.-4 Prem Shanker, witness to the recovery of Citizen watch. The trial Court held that the prosecution has proved its case with regard to recovery of watch from the present appellant although as per information Exhibit-P/14, the appellant gave information about Rs. 450/-and wrist watch but only the watch was recovered. The trial Court held that the prosecution has proved the recovery of Citizen watch from the appellant. On the point No. 4, it is adjudicated that recovery of Rs. 450/-and wrist watch but only the watch was recovered. The trial Court held that the prosecution has proved the recovery of Citizen watch from the appellant. On the point No. 4, it is adjudicated that recovery of Rs. 150/-from Bhania @ Bhana, the trial Court reached conclusin that the prosecution has failed to prove the recovery exactly of the same currency from accused Bhana but the prosecution has proved recovery of the Citizen watch only from accused-appellant Hanja. On the question set out at point No. 5, since the Citizen watch was recovered from the present appellant Hanja and the same was identified by the complainant, only on that basis, the trial Court concluded the finding that prosecution has failed to prove the case beyond reasonable doubt against three accused namely, Bhania @ Bhana, Narayan and Rama but the prosecution case against Hanja, from whom the recovery of Citizen watch allegedly belonging to the complainant was made, is proved beyond any reasonable doubt for commission of offence under Section 392, IPC As regards the question about commission of any offence by the accused at point No. 6, the trial Court acquitted all the accused of the offence under Section 395, read with Section 323, IPC however, accused appellant Hanja has been found guilty for commission of offence under Section 392, IPC and thus rest of the accused namely Bhania @ Bhana, Narayan and Rama were acquitted and accused appellant Hanja was convicted for offence under Section 392, IPC and sentenced to three years rigorous imprisonment with a fine of Rs. 200/-in default of payment of fine to further undergo one months rigorous imprisonment. 6. Learned Counsel for the appellant vehemently contended that the learned trial Judge has committed error while convicting the appellant Hanja on the basis of so called recovery. While arguing the point, learned Counsel for the appellant Mr. Mahesh Boda apprised the Court about statement of P.W.-4 Prem Shanker, prosecution witness to the recovery of watch. He contended that Prem Shanker, P.W.-4 categorically stated that watch was recovered from accused Narayan and he was declared hostile but even then on the testimony of P.W.-4 Prem Shanker the appellant Hanja has been held guilty. Mahesh Boda apprised the Court about statement of P.W.-4 Prem Shanker, prosecution witness to the recovery of watch. He contended that Prem Shanker, P.W.-4 categorically stated that watch was recovered from accused Narayan and he was declared hostile but even then on the testimony of P.W.-4 Prem Shanker the appellant Hanja has been held guilty. He argued that the trial Court committed serious error in ignoring important fact that the witness identified accused Narayan in the Court and stated that about 2 years ago he had gone with the police party to village godiawada in connection with recovery and accused Narayan was also with them and while recording his statement a note was appended that the witness identified accused Narayan, present in the Court, correctly. Prem Shanker, P.W.-4 further stated that he knows all the four accused who are present in the Court. It is contended by learned Counsel for the appellant that this witness specifically deposed before the Court that at the instance of Narayan a watch was recovered from his house from a box before him. He argued that merely on the basis of a suggestive question put by the A.P.P. and the reply thereto given by the witness it cannot be said that the witness had wrongly recognized accused Narayan. He stressed that the witness had categorically stated in the examination-in-chief that Narayan was with them at the time of the recovery and he further deposed that he knew all the four accused present in the Court by face including Narayan whom he identified in the Court, therefore, had it been Hanja the witness must have beckoned at Hanja in the Court. Learned Counsel for the appellant, therefore, argued that the prosecution case is not trustworthy and appears to be based on fabricated material adduced before the Court in evidence. Likewise, he contended, out of two witnesses of recovery only Sarpanch Prem Shanker was produced in the Court to prove the recovery whereas another motbir said to one Kehara was not produced in the Court. 7. Learned Counsel for the appellant contended that the complainant alleged that the head-lights of his truck were on and as such he had seen the accused in the light of the truck. But, no identification parade was conducted to identify the accused. 7. Learned Counsel for the appellant contended that the complainant alleged that the head-lights of his truck were on and as such he had seen the accused in the light of the truck. But, no identification parade was conducted to identify the accused. Learned Counsel for the appellant argued that after specific denial of the accused about knowledge of the occurrence in his statement recorded under Section 313, CrPC it is incumbent upon the prosecution to prove the identity of the accused for establishing the charge of commission of the alleged offence against him. 8. Learned Counsel for the appellant further contended that the finding of guilt recorded by the learned trial Court against the accused appellant is totally perverse inasmuch as the trial Court concluded that the prosecution has failed to establish the case against all the accused persons for commission of the offence charged against them but, inspite of that, the trial Court recorded finding of guilt against appellant Hanja for offence under Section 392, IPC He argued that the trial Court reached the finding only on the basis of alleged recovery of Citizen watch which is an insufficient evidence to prove constitution of offence under Section 392, IPC. 9. Per contra, learned Public Prosecutor supported the impugned Judgment and argued that the trial Court has rightly relied upon the testimony of P.W.-4 Prem Shanker who clarified before the Court that he named Narayan accused because in the case-title only name of Narayan appeared on the papers received by him from the Court. He also argued that recovery of the Citizen watch from accused Hanja sufficiently established the commission of the crime by the accused because the watch was identified by complainant Ram Gopal. 10. I have carefully perused the impugned Judgment and scanned the evidence on record. 11. It is basic in criminal law that the prosecution must establish the charge against the accused beyond any reasonable doubt for conviction of the accused for commission of the offence charged against him. In the present case, the FIR was filed against unknown persons and the complainant categorically alleged that he saw the persons who attacked him in the light of the truck. In the present case, the FIR was filed against unknown persons and the complainant categorically alleged that he saw the persons who attacked him in the light of the truck. In the circumstances, the prosecution was under obligation to conduct the identification parade, more so, because the challan against the accused was filed for commission of offences under Sections 395 and 323, IPC and agasint two persons before the Children Court, Udaipur because they were juvenile. In the present case, no identification parade was conducted after arrest of the accused. The evidence adduced by the prosecution was not found inspiring confidence by the trial Court and, with regard to accused Bhania @ Bhana, Rama and Narayan, the trial Court acquitted them of the charge levelled against them. The trial Corut has based the conviction of the appellant Hanja only on the recovery of Citizen watch alleged to have been made from him, though, before the Court, the witness to recovery did not name Hanja and stated that recovery was made from the house of Narayan. It is significant to note that the witness recognized the accused Narayan correctly by name and face before the Court and also stated that he knew all the four accused; but, despite that, the trial Court heavily relied upon the testimony of this witness for the corroboration of the statement of P.W.-11 Kesar Singh, investigating officer for proving the charge against appellant Hanja. 12. It is also significant to note in this case that the offence charged fell under Section 395, IPC according to the challan filed before the Court. At the trial, at a later stage, the trial Judge found that the offence charged would not constitute unless the accused in number are five or more and, therefore, Section 392, IPC has been read by the trial Court instead of Section 395 on the premise that Section 392 also comprises the same offence. Section 392, IPC lays down punishment for robbery. Robbery is defined in Section 390 of the Penal Code. In the present case, upon the allegations in the FIR, the robbery is by way of theft by causing wrongful restraint and instant hurt. The complainant has stated that he saw the four accused who threw chilli powder in his eyes in the light of his truck since the head-lights were on. In the present case, upon the allegations in the FIR, the robbery is by way of theft by causing wrongful restraint and instant hurt. The complainant has stated that he saw the four accused who threw chilli powder in his eyes in the light of his truck since the head-lights were on. In the facts and circumstances of the case, conviction of one accused, out of four put up for trial by the prosecution, solely based on the ground of recovery of an article alleged robbed off without identification parade is not just and proper. As noted above, in his examination, the motbir witness to the recovery tremendously dithered in his evidence and almost rendered himself hostile to the prosecution case and, therefore, in the absence of any identification parade, it was unsafe to convict the appellant for commission of offence under Section 302, IPC. In his statement, P.W.-11 Kesar Singh investigating officer admits that he had taken both the motbir witnesses with him from the police station to village Godiawada and none of them was a local resident of the village. Out of the two motbir witnesses, only one P.W.4 Prem Shanker was examined before the Court by the prosecution and the other witness Kehara was not produced. Even Prem Shanker, P.W.4, witness to the alleged recovery, does not state anything about recovery of any money and what he stated is only with regard to the Citizen watch, that too, from accused Narayan and not from the appellant. Even in the cross-examination no specific statement with regard to recovery from the appellant Hanja is given. Therefore, without any specific and cogent evidence, the appellant has been wrongly held guilty. 13. In my opinion, the trial Court has committed error in holding the appellant Hanja guilty for the offence alleged by the prosecution against him. In the absence of any identification and in the absence of clear evidence with regard to recovery, the case of the present appellant cannot be distinguished from other co-accused in the case who have been acquitted by the trial Court. 14. As a result, this appeal is allowed. The impugned Judgment and order of sentence dated 28.04.1988 passed by Additional Sessions Judge No. 2, Udaipur in Sessions Case No. 33/85 qua the appellant is set aside. The appellant is acquitted of the charge under Section 392, IPC. He is on bail. 14. As a result, this appeal is allowed. The impugned Judgment and order of sentence dated 28.04.1988 passed by Additional Sessions Judge No. 2, Udaipur in Sessions Case No. 33/85 qua the appellant is set aside. The appellant is acquitted of the charge under Section 392, IPC. He is on bail. His bail bonds stand discharged.