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2015 DIGILAW 876 (RAJ)

Ramesh v. State of Rajasthan

2015-04-20

BANWARI LAL SHARMA

body2015
JUDGMENT 1. - This appeal has been preferred against the judgment of conviction and order of sentence dated 17.05.2012 passed by the learned Additional Sessions Judge (Fast Track), Dungarpur in Sessions Case No.62/2010 whereby the appellants-accused were convicted for the offences under Sections 341 and 395 IPC and sentenced each of them as under:- U/s.341 IPC: One month's simple imprisonment. U/s.395 IPC: 5 years' rigorous imprisonment with fine of Rs. 20,000/-, in default of payment of fine, to further undergo 2 years' rigorous Imprisonment. 2. The brief facts of the case are that on 16.08.2010, complainant Smt. Kamla presented herself before the SHO, PS Nithawar, District Dungarpur and gave an oral information alleging that on 29.05.2010, when she was returning to her village after shopping from Nithawar Market and when she reached Nithawar Magra Fala, she saw five persons with covered faces on two motor-cycles, who were standing on road. They surrounded her and three of them came near her and snatched two silver ornaments from her neck weighing 50 tolas and thereafter they ran away on their motor-cycles. It was also stated that since then they were trying to search the offenders and now she came to lodge this report. 3. On the basis of the above information, FIR No.61/2010 was registered for the offence under Section 392 IPC and Investigation commenced. After completion of investigation, the police filed charge-sheet against the appellants-accused for the offences under Sections 341 and 395 IPC before the court of learned Judicial Magistrate, Aaspur, who committed the case to the court of learned Sessions Judge, Dungarpur from where the case was transferred to the court of learned Additional Sessions Judge (Fast Track), Dungarpur (for short 'the learned trial court') for trial. The learned trial court, thereafter framed charges for the offences under Sections 341 and 395 IPC to which they denied and claimed trial. Thereafter, they were examined under Section 313 Cr.RC. wherein they denied the prosecution evidence and stated that they have been Implicated falsely. However, they did not lead any evidence in defence. 4. The learned trial court, after hearing, vide Impugned judgment of conviction and order of sentence dated 17.05.2012, convicted and sentenced the appellants-accused as aforesaid. Hence, this appeal. 5. I have heard learned counsel for the appellants accused and the learned Public Prosecutor. 6. However, they did not lead any evidence in defence. 4. The learned trial court, after hearing, vide Impugned judgment of conviction and order of sentence dated 17.05.2012, convicted and sentenced the appellants-accused as aforesaid. Hence, this appeal. 5. I have heard learned counsel for the appellants accused and the learned Public Prosecutor. 6. The learned counsel for the appellants-accused submitted that the only evidence, on the basis of which the appellants-accused were convicted and sentenced, Is recovery of ornaments of victim and identification thereto. He submitted that the said incident was stated to be taken place on 28.05.2010, whereas the FIR was lodged on 16.08.2010. Thus there was almost a delay of about 21/2 months, which creates great doubt about the prosecution story. The explanation of delay given by the prosecution witness was that she and her husband were trying to find out the whereabouts of the criminals who committed robbery, which is not plausible reason for lodging the FIR with such an inordinate delay. The learned trial court failed to consider this vital aspect of the matter. He further submitted that the complainant herself stated in the FIR that the accused were with covered faces, therefore, there arises no question to identify them, still the learned trial court believed that they were searching for the accused. The recovery witnesses Nagji (PW-6) and Vakta (PW-9) have turned hostile and admitted in cross-examination that they were asked by the police to put signatures on blank papers and as such, these witnesses cannot be relied upon on the sole testimony of Nirbhay Singh (PW-10) Investigating Officer. So far as Ex.P/3 is concerned, the same is to the effect that the accused verified the place of occurrence, which cannot be at all admissible In evidence as no new fact was discovered in pursuance of this information. The other evidence adduced by the prosecution is that Smt. Kamla, the complainant, identified the looted silver ornaments before the Tehsildar Aaspur is also of no consequence as she herself admitted in her cross-examination that the articles were shown to her at the police station before the so called Identification proceedings. Therefore, the seizure and identification both are doubtful. The learned trial court, without considering these aspects of the matter, wrongly convicted the appellants-accused. Therefore, this appeal may be allowed and the appellants-accused may be acquitted from the offences. 7. Therefore, the seizure and identification both are doubtful. The learned trial court, without considering these aspects of the matter, wrongly convicted the appellants-accused. Therefore, this appeal may be allowed and the appellants-accused may be acquitted from the offences. 7. Per contra, the learned Public Prosecutor supported the impugned judgment of conviction and order of sentence. It was submitted that the appellants have identified the place of occurrence. The looted articles were recovered from their conscious possession in pursuance of the information given by them under section 27 of the Indian Evidence act and the recovered articles were Identified by the victim. It was thus prayed that the appeal of the appellants-accused may be dismissed. 8. I have considered the rival submissions made at the Bar and perused the material available on record. 9. Before parting with the judgment, I deem it appropriate to scan the evidence led before the learned trial court. 10. Shankerlal (PW-1) and Dharma (PW-2), in their statements, deposed that on 15.09.2010, when they were going to Nithauva, SHO came and asked them to sit in the vehicle in which Ramesh was sitting who took them to his house and got recovered a " gkalyh " weighing about 3 gms. less from 20 tolas from his possession, which was seized and sealed by the police and the police also prepared recovery memo (Ex.P/1). The police also prepared site memo of place of recovery (Ex.P/2). 11. Gautamlal (PW-3), in his statement, deposed that on 21.09.2010, he undertook identification parade of " gkdyh o gkalyh " and prepared identification memo (Ex.P/4). 12. Smt. Kamlu (PW-4), complainant, in her statement deposed that on the date of incident, when she was returning to her village after shopping from Nithawar Market and when she reached Nithawar Magra Fala, she saw five persons with covered faces on two motor-cycles, who were standing on road. They surrounded her and three of them came near her and snatched two silver ornaments namely, " gkdyh o gkalyh " from her neck weighing 30 and 20 tolas respectively and thereafter they ran away on their motor-cycles. 13. Nathiya (PW-5), husband of complainant, corroborated the statement of Smt. Kamlu (PW-4). 14. They surrounded her and three of them came near her and snatched two silver ornaments namely, " gkdyh o gkalyh " from her neck weighing 30 and 20 tolas respectively and thereafter they ran away on their motor-cycles. 13. Nathiya (PW-5), husband of complainant, corroborated the statement of Smt. Kamlu (PW-4). 14. Nagji (PW-6) and Vakta (PW-7, though turned hostile, but they stated in their statements that when they were at Parsola Village and were sitting there then they were called by the police personnel and they took their signatures on some papers. In their cross-examination, they stated that the signatures were taken on blank papers. 15. Hoorji (PW-8) and Dhaniya (PW-9) proved site inspection plan (Ex.P/7). 16. Nirbhay Singh (PW-10), Investigating Officer, stated about the investigation of the matter. 17. From a bare perusal and statement of complainant Smt. Kamlu (PW-4), the accused were with covered face and, therefore, she could not identify them. After their apprehension, no identification parade was conducted, which also shows that the complainant was not in a position to identify them. Therefore, the reason assigned for delay that they were searching for accused is of no consequence. Thus, there was inordinate and unexplained delay of about 21/2 months in lodging FIR, which creates doubt over the prosecution case. 18. The appellant-accused Ramesh S/o Dhullya was arrested vide arrest memo (Ex.P/10) on 06.09.2010. He gave information under Section 27 of the Indian Evidence Act (Ex.P/11) on 09.09.2010 for recovery of " gkalyh " in 25 pursuance of which the same was recovered vide recovery memo (Ex.P/8). Similarly, appellant-accused Ramesh S/o Rangji Meena was arrested vide arrest memo (Ex.P/12) on 14.09.2010. He gave information under Section 27 of the Evidence Act (Ex.P/13) for recovery of " gkalyh ". In the FIR and statement of complainant Smt. Kamlu (PW-4), they did not mention any identifiable mark of the ornaments " gkdyh o gkalyh ". The prosecution tried to establish the case that the recovered articles were the looted articles and for which the only evidence adduced by the prosecution is identification of the articles by the complainant Smt. Kamlu. The Investigating Officer Nirbhay Singh (PW-10), in his statement, stated that he recovered the articles from the appellants-accused and sealed the same in the presence of motbirs. The Investigating Officer Nirbhay Singh (PW-10), in his statement, stated that he recovered the articles from the appellants-accused and sealed the same in the presence of motbirs. But, the recovery witnesses, viz., Nagji (PW- 6) and Vakta (PW-7) have turned hostile and they clearly felt ignorance about the proceeding and further stated that their signatures were taken on blank papers. Further, Smt. Kamlu (PW-4), complainant admitted in her cross-examination that the recovered ornaments were shown to her in the police station. When the articles were recovered and seized and sealed on the spot, then it was not possible to show the same to the complainant before identification. Therefore, the seizure and sealing of the articles also becomes doubtful and identification thereof is also of no consequence. No other evidence was adduced by the prosecution. 19. Identification of property is important piece of evidence and certain Rules are framed for conducting identification parade. In this regard, Rule 7.32 of Rajasthan Police Rules, 1972 has been promulgated, and at that time were in force, which reads as under:- "7.32 Identification of property. - (i) It is of utmost importance that the articles of property seized by the investigating agency shall be properly sealed on the spot and it should be ensured that the seals are intact. (ii) The number of articles to be mixed up with the articles of property required to be put to Identification test should rest with the Magistrate before whom the proceedings are to be carried on. (iii) The articles of property to be mixed up to with the articles of property put for the purpose of Identification should also be contained in sealed bundles. (iv) the seals must be all along intact and can only be opened before the Magistrate conducting the identification proceedings. (v) As in the identification parade of suspects, witnesses are to be called one by one and no succeeding witness should communicate In any manner with the preceding one. (vi) It is also important to note that the articles to be mixed up should be similar in appearance to those for identification. (vii) The prosecuting inspector or the prosecuting sub-inspector may be present at the time of the identification proceedings. (viii) The articles to be mixed up should be arranged for production according to the instructions of the Government which may issue in this behalf. (vii) The prosecuting inspector or the prosecuting sub-inspector may be present at the time of the identification proceedings. (viii) The articles to be mixed up should be arranged for production according to the instructions of the Government which may issue in this behalf. However, there should be given no change, whatsoever for an objection that the articles brought for being mixed up were exposed to the identifying witness before identification proceedings took place. The arranging of such articles to all intents and purposes should be by an agency other than the police. (ix) Proceedings of the identification of property shall be recorded in Form 7.32(ix)." 20. In the present case, the ornaments were shown to the complainant Smt. Kamlu (PW-4) before Identification. Thus, there was clear violation of Rules 7.32(iv) and 7.32(ix). Thus, the prosecution has failed to prove its case beyond reasonable doubt. 21. In view of the above, since the prosecution has failed to prove its case beyond reasonable doubt, therefore, this appeal deserves to tip allowed, which is hereby allowed. The impugned judgment of conviction and order of sentence dated 17.05.2012 is quashed and set aside and the appellants-accused are acquitted from the offences under Sections 341 and 395 IPC while giving benefit of doubt. 22. The appellants-accused are in custody. They be set at liberty if not required in any other case. 23. Record of the court below sent back with a copy of this judgment forthwith. *******