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2008 DIGILAW 1018 (RAJ)

Vijay Singh v. State of Rajasthan

2008-04-11

RAGHUVENDRA S.RATHORE

body2008
JUDGMENT 1. - The accused-appellant has filed this appeal, under Section 374 (2) of the Code of Criminal Procedure, challenging the judgment dated 9.8.1985 passed by the learned Additional Sessions Judge, No.2, Bharatpur, in Sesns Case No.7/1984, whereby he has been convicted him for the offence under Section 395 Indian Penal Code and sentenced for five years rigorous imprisonment and a fine of Rs. 200/- in default of which to further undergo three months rigorous imprisonment. 2. The prosecution case is that on 30.6.1983, at 9.15 p.m. Makhanlal, the Guard of Train 5 Up lodged a report at Police Station (Railways), Bharatpur. It was stated in the said report that some passengers of the train informed him that some miscreants had boarded the train at Achnera and after robbing them they had got down at Railway Station, Chiksana. The said report (Ex. Pl) was registered as a First Information Report (Ex.P.26). 3. After registration of the said report, one Bishan Swaroop, Head Constable (PW.26) went to the Compartment No. 31172 of the said train. He found same persons injured and blood was oozing out. One Mithlesh Ram and Kushman had given some articles, like country made pistols and knives, to Bishan Swaroop, the Head Constable, which were said to be that of the miscreants. The said articles were seized and memos had been prepared. Subsequently, Bishan Swaroop went out in search of the miscreants and during the course of-it, he found a knife at Chiksana. The bloodstained cloths of the injured were also seized. 4. During the course of investigation, the accused appellant was arrested on 10.7.1983 (Ex.P.44). Another accused namely; Mahaveer was arrested on 15.7.1983, accused Man Singh son of Tika Ram was arrested on 11.7.1983 from Mathura Jail. The accused persons namely; Man Singh son of Mitthan and Sahab Singh were arrested on 19.7.1983. Thereafter, information under Section 27 of the Evidence Act, was given by the accused Sahab Singh on 24.7.1983 and recovery on the said information was effected on 25.7.1983. Likewise, information was also given by the accused Man Singh son of Mitthan on 28.7.1983 and recovery of one bag was effected, in furtherance thereof. The other accused Man Singh son of Tika Ram also gave information on 30.7.1983 and a bag was recovered from him. The test identification parade of the accused persons was conducted on 17.8.1983 at Kota Jail (Ex.P.6). The other accused Man Singh son of Tika Ram also gave information on 30.7.1983 and a bag was recovered from him. The test identification parade of the accused persons was conducted on 17.8.1983 at Kota Jail (Ex.P.6). On the same day, the identification of the seized articles was also got conducted. The injured Om Prakash, Mahendra Pratap and Mithlesh Ram were medically examined. The accused Man Singh son of Tika Ram was also medically examined (Ex.P.24). Against accused Vijay Singh, a sanction to prosecute him under Section 25 of the Arms Act, was also granted (Ex.P.42). 5. The learned trial Court had then framed charges against accused Vijay Singh, for offences under Sections 395, 397 Indian Penal Code, for offences under Sections 120 and 122 of the Indian Railways Act and also for offence under Section 25 of the Arms Act. The rest of the accused namely; Sahab Singh, Mahaveer, Man Singh son of Tika Ram and Man Singh son of Mitthan were charged for offences under Sections 395 and 397 Indian Penal Code. They were also charged for the offences under Sections 120 and 122 of the Indian Railways Act. All the accused persons denied the charges and claimed for trial. 6. The prosecution, in support of its case produced 32 witnesses and the documents of investigation which were duly exhibited. Later on the statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure. They had stated that the version given by the prosecution witnesses is false and that the accused were shown to the witnesses prior to the proceeding of the identification parade. On the conclusion of trial, the learned trial Court acquitted the accused persons Sahab Singh, Man Singh son of Mitthan, Mahaveer and Man Singh son of Tika Ram. The accused appellant Vijay Singh was also acquitted for offences under Section 397 Indian Penal Code, for offences under Sections 120 and 122 of the Indian Railways Act and also for offence under Section 25 of the Arms Act. However, he was convicted for offence under Section 395 Indian Penal Code and sentenced as aforementioned. 7. The submissions made by the learned counsels for the rival parties and the material placed on record have been carefully considered. The prosecution in this case was initially lodged against five persons but the learned trial Court itself, had acquitted four other accused persons. 7. The submissions made by the learned counsels for the rival parties and the material placed on record have been carefully considered. The prosecution in this case was initially lodged against five persons but the learned trial Court itself, had acquitted four other accused persons. The primary reason for acquittal of the other persons is that the evidence with regard to the identification was doubtful. As against the accused Man Singh and Sahab Singh, the only persons from whom recoveries have been made, the learned trial Court came to the conclusion that the said recoveries were also doubtful. 8. The prosecution evidence against accused-appellant, which has been brought on record, is in respect of identification alone. It is to be noted that so far as the accused appellant is concerned, undisputedly there had been no recovery of any articles whatsoever, from him. The recoveries, as per the prosecution case itself, were made only from Man Singh son of Tika Ram and Sahab Singh, who have already been acquitted by the trial Court. While considering the evidence with regard to the identification of the other accused persons, the learned trial Court in Para 18 and 19 of the Judgment, has held that the same is doubtful and they cannot be convicted on the basis of the same. So far as the accused appellant is concerned, the prosecution has come with the evidence of identification but a perusal of the statements of prosecution witnesses Nos.3, 4,6 and 7, in respect of identification, would go to show that their deposition does not inspire any confidence. 9. As mentioned earlier, there is no other evidence against the accused persons particularly that of any recovery, except that identification. It may be noted that the similar set of evidence with regard to identification, which had been, produced on record in respect of other four accused persons, has been relied upon by the learned trial Court as against the present accused appellant therefore, the evidence with retard to identification against the accused appellant is not credible. Therefore, it cannot be said that the prosecution has succeed in proving the case beyond reasonable doubt, against the present accused appellant. 10. Consequently, in view of the aforesaid facts and circumstances, the conviction awarded to the appellant is not at all sustainable in law. 11. In the result, the appeal is allowed. The impugned judgment dated 09.08.1985 squashed and set-aside. 10. Consequently, in view of the aforesaid facts and circumstances, the conviction awarded to the appellant is not at all sustainable in law. 11. In the result, the appeal is allowed. The impugned judgment dated 09.08.1985 squashed and set-aside. The accused-appellant is acquitted of all the charges levelled against him. He is on bail and his bail sand stands discharged.Appeal allowed. *******