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2008 DIGILAW 1675 (RAJ)

State of Rajasthan v. Ramkishan

2008-07-11

MAHESH CHANDRA SHARMA

body2008
JUDGMENT 1. - The State of Rajasthan has preferred an appeal bearing No. 926/2004, complainant-Kailash Chand Goyal has filed a cri. revision petition against the State of Rajasthan bearing No. 460/2004 and a cri. appeal bearing No. 263/2004 has been filed against the State of Rajasthan by the accused-respondents-Ramawtar & Ors. JUDGMENT 1. - The State of Rajasthan has preferred an appeal bearing No. 926/2004, complainant-Kailash Chand Goyal has filed a cri. revision petition against the State of Rajasthan bearing No. 460/2004 and a cri. appeal bearing No. 263/2004 has been filed against the State of Rajasthan by the accused-respondents-Ramawtar & Ors. against the same judgment dated 17.02.2004 passed by the learned Additional Sessions Judge (Fast Track) No. 2, Jhunjhunu, in Sessions Case No. (95/2002, 85/2002) 55/2003 by which he has acquitted the accused-respondents namely; Ramkishan, Manoj Kumar, Suresh and Jagdish Prasad from the offence under Sections 148, 458, 435 IPC and convicted and rest of the accused respondents/appellants for the offence under Sections 148, 458, 435 IPC which is as under : 1 vfHk;qDr jkerkSj mQZ /kksfy;k ds lEcU/k esa& 1 /kkjk 148 Hkk0na0la0 esa ,d lky dk lk/kkj.k dkjkokl o ,d gtkj :i;s tqekZukA 2 /kkjk 458 Hkk0na0la0 esa nks lky dk lk/kkj.k dkjkokl o ,d gtkj :I;s tqekZukA 3 /kkjk 435 Hkk0na0la0 esa rhu lky dk lk/kkj.k dkjkokl o ,d gtkj :I;s tqekZukA 2- vfHk;qDr egsUnz ds lEcU/k esa& 1- /kkjk 148 Hkk0na0la0 esa ,d lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 2- /kkjk 458 Hkk0na0la- esa nks lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 3- /kkjk 435 Hkk0na0la0 esa rhu lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 3- vfHk;qDr gsrjke ds lEcU/k esa& 1- /kkjk 148 Hkk0na0la0 esa ,d lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 2- /kkjk 458 Hkk0na0la0 esa nks lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 3- /kkjk 435 Hkk0na0la0 esa rhu lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 4- vfHk;qDr egkohj ds lEcU/k esa& 1- /kkjk 148 Hkk0na0la0 esa ,d lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 2- /kkjk 458 Hkk0na0la0 esa nks lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 3- /kkjk 435 Hkk0na0la0 esa rhu lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 5- vfHk;qDr lardqekj ds lEcU/k esa& 1- /kkjk 148 Hkk0na0la0 esa ,d lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 2- /kkjk 458 Hkk0na0la0 esa nks lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 3- /kkjk 435 Hkk0na0la0 esa rhu lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 6- vfHk;qDr yhykjke ds lEcU/k esa& 1- /kkjk 148 Hkk0na0la0 esa ,d lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 2- /kkjk 458 Hkk0na0la0 esa nks lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 3- /kkjk 435 Hkk0na0la0 esa rhu lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 7- vfHk;qDr cyoku ds lEcU/k esa& 1- /kkjk 148 Hkk0na0la0 esa ,d lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 2- /kkjk 458 Hkk0na0la0 esa nks lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 3- /kkjk 435 Hkk0na0la0 esa rhu lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 8- vfHk;qDr jktdqekj ds lEcU/k esa& 1- /kkjk 148 Hkk0na0la0 esa ,d lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 2- /kkjk 458 Hkk0na0la0 esa nks lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 3- /kkjk 435 Hkk0na0la0 esa rhu lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 9- vfHk;qDr lanhi ds lEcU/k esa& 1- /kkjk 148 Hkk0na0la0 esa ,d lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 2- /kkjk 458 Hkk0na0la0 esa nks lky dk lk/kkj.k dkjkokl o ,d gtkj #i;s tqekZukA 3- /kkjk 435 Hkk0na0la0 essa rhu lky dk lk/kkj.k dkjkokl o ,d gtkj :i;s tqekZukA 2. Brief facts of the case are that in mid night of 10.03.2001 Jagdish and his two sons, Mahavir, Manoj, Sant Kumar, Ram Kishan, Raj Kumar, Balwan, Suresh, Sandeep and 8-10 persons entered in his dwelling house and broken the doors, lit the fire in TV., VCR, Freeze and Clothes. On hearing the noise Mahipal, Ganga Ram, Anil, Jage Ram, Mohar Singh, Shyochand, Somveer and Rotas came on the spot and intervene. The accused respondents also open the fire and empty cartridge are lying in the house and the accused also threatened to his family to kill. On the aforesaid report an FIR No. 53/2001 has been registered at Police Station Surajgarh under Sections 147, 149, 458, 436 IPC and 3/25 Arms Act and started the investigation.3. After the investigation the police filed challan against the 13 accused-persons namely; (1) Ramkishan @ Ramanand @ Ramiya S/o Shrichand (2) Ramotar @ Dholia Sha Chunnilal (3) Mahendra S/o Jagdish (4) Manoj Kumar S/o Mahaveer Prasad (5) Hetram 810 Gopalram Khati (6) Suresh S/o Devidutt (7) Jagdish Prasad S/o Maturam (8) Mahaveer S/o Maturam (9) Santkumar S/o Maturam (10) Leelaram S/o Jagdish (11) Balwan S/o Devidutt (12) Rajkumar S/o Sher Singh and (13) Sandeep S/o Ram Narain before the trial Court and the same was committed under Section 209 of the Cr.P.C. to the Court of Sessions Judge, Jhunjhunu and transferred to the Court of Additional Sessions Judge (Fast Track) No. 2, Jhunjhunu for trial. The learned trial Court has framed the charge against the accused-respondents/appellants for the offence under Sections 148, 458, 436 IPC.4. The charges were read over and explained to the accused-respondents/appellants, but he pleaded not guilty and claimed for trial. Thereafter, the prosecution in support of its case examined as many as 13 witnesses and got exhibited some documents. Thereafter the statements of the accused-respondents under Section 313 Cr.PC. were recorded.5. After hearing both the side, the learned Additional Sessions Judge (Fast Track) No. 2, Jhunjhunu, has acquitted the accused-respondents/appellants namely; Ramkishan, Manoj Kumar, Suresh and Jagdish Prasad from the offence under Sections 148, 458, 436 IPC and convicted the rest of the accused respondents/appellants for the offence under Sections 148, 458, 435 IPC vide it judgment dated 17.02.2004.6. Aggrieved from the aforesaid order and judgment of the learned Additional Sessions Judge (Fast Track) No. 2, Jhunjhunu, dated 17.02.2004, the State of Rajasthan has preferred this cri. Appeal, complainant PW. Aggrieved from the aforesaid order and judgment of the learned Additional Sessions Judge (Fast Track) No. 2, Jhunjhunu, dated 17.02.2004, the State of Rajasthan has preferred this cri. Appeal, complainant PW. 1 Kailash Chand Goyal has filed a revision petition against the said order and a cri. appeal has also been filed by the accused appellants against the said order and judgment. Hence, they are disposed of by a common judgment.7. It has been submitted by the learned Public Prosecutor Mr. B.N. Sandhu accompanied by Mr. Harendra Singh that the court below has erred in not considering the intention of the accused persons who unlawfully assembled and entered into the house with an axe and iron rods and destroyed the household items, which evidently proved the guilt of the accused-persons. That the learned court below has not properly appreciated the statements of the witnesses produced by the prosecution side, which proved the prosecution case. Trial Court has committed an error in convicting the accused-petitioners under Section 435 IPC instead of the offence under Section 436 IPC is well proved against the accused persons. The judgment of trial Court be set aside and the accused persons should be convicted under Section 436 IPC,8. On the other hand, the learned counsel Mr. R.N. Sharma appearing on behalf the accused-respondents has submitted that the learned trial Court has properly appreciated the evidence of prosecution and no case is made out against the accused respondents/appellants on the basis of the prosecution witnesses, they have been falsely implicated in this case. During the course of the arguments learned counsel Mr. Sharma has urged to this Court that looking to the facts and circumstances of the case accused respondents-appellants should be released from the period which they have already undergone in confinement. He has further drawn the attention of this Court on the judgment rendered in the matter of Naib Singh v. State of Punjab, reported in 1986 Cri.L.J. 2061 , in which the Hon'ble Supreme Court has given the sentence of till rising of the Court for the offence under Section 326 IPC and according to him the sentence was provided under Section 326 IPC is life imprisonment. The para No. 7 of the Judgment as under "Accordingly, the appeal fails and is dismissed. The judgment of the High Court convicting the appellant under Section 326 of the Indian Penal Code is upheld. The para No. 7 of the Judgment as under "Accordingly, the appeal fails and is dismissed. The judgment of the High Court convicting the appellant under Section 326 of the Indian Penal Code is upheld. As to the sentence, we are inclined to take a lenient view. We are informed that the appellant is a Teacher in a Government School. The circumstances brought out by the prosecution evidence show that he acted in the heat of the moment. Looking to the fact that the incident occurred on April 22, 1973, some 13 years back, we do not think it desirable to send the appellant back to jail. We accordingly reduce the sentence of rigorous imprisonment for one year awarded by the High Court to imprisonment till the rising of the Court and pay a fine of Rs. 5000/-or in default to undergo rigorous imprisonment for a period of six months. The amount of fine shall be deposited in the Court of the Judicial Magistrate, First Class, Muktsar within a period of one month from today. The amount, if recovered, shall be paid to the complainant Darshan Singh by way of compensation. Appeal dismissed." 9. He has further requested to the court in the light of the aforesaid judgment that he is not challenging the conviction part of the judgment. If the Court increases the amount of compensation he is ready to pay. The accused respondents/appellants were remained in Judicial custody for approximately 10 days except Mahendra & Ramotar @ Dholia. There is major contradictions in the statements of the prosecution witnesses. The learned advocate has urged to this Court that the matter should be decided in the light of the aforesaid judgment as indicated hereinabove.10. The learned counsel Mr. Harendra appearing on behalf of complainant has also not opposed this fact that if the fine has been increased and same should be given to the complainant if the Court wants to take a lenient view.11. Looking to the fact that the accused respondents/appellants who have convicted by the Additional Sessions Judge (Fast Track) No. 2 Jhunjhunu and already undergone confinement for a period of 10 days approximately.12. The ends of justice would meet if the accused respondents/appellants are released on the period already undergone by them in confinement.13. Looking to the fact that the accused respondents/appellants who have convicted by the Additional Sessions Judge (Fast Track) No. 2 Jhunjhunu and already undergone confinement for a period of 10 days approximately.12. The ends of justice would meet if the accused respondents/appellants are released on the period already undergone by them in confinement.13. So far as the accused respondents/appellants namely; Ramotar & Mahendra are concerned, they have been released on bail under Section 438 Cr.P.C. but in the interest of justice and looking to the material available on record I sentence accused respondents/appellants till rising of the Court.14. All the nine accused respondents/appellants namely; (1) Ramotar @ Dholia S/o Chunnilal (2) Mahendra S/o Jagdish (3) Hetram S/o Gopalram Khati (4) Mahaveer S/o Maturam (5) Santkumar S/o Maturam (6) Leelaram S/o Jagdish (7) Balwan S/o Devidutt (8) Rajkumar S/o Sher Singh and (9) Sandeep S/o Ram Narain, who have been convicted, each of them shall pay Rs. 6,000/- as fine (total 6000x9 = Rs. 54,000/-). The said amount of fine shall be deposited in the Court of Additional Sessions Judge (Fast Track) No. 2, Jhunjhunu within a period of two months from the date of receipt a certified copy of this judgment. The amount recovered shall be paid to the complainant-PW. 1 Kailash Chand Goyal as compensation. If the said amount will not be deposited by the above nine accused respondents/appellants then the order passed by the learned Additional Sessions Judge (Fast Track) No. 2, Jhunjhunu, shall remain in force.15. In the result, the State appeal against the judgment dated 17.02.2004 passed by the learned Additional Sessions Judge (Fast Track) No. 2, Jhunjhunu, stands dismissed. The revision petition filed by the complainant is dismissed and the cri. Appeal filed by the accused appellant is partly allowed.16. The order of the learned trial Court is modified as indicated hereinabove.Appeal Partly Allowed-State Appeal and Complainants's revision dismissed. *******