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2015 DIGILAW 987 (RAJ)

Devi Lal @ Deva v. State of Rajasthan

2015-05-04

BANWARI LAL SHARMA

body2015
JUDGMENT : Banwari Lal Sharma, J. The appellant-accused has preferred this appeal assailing the judgment of conviction and order of sentence dated 25.11.2011 passed by the learned Additional Sessions Judge (Fast Track), No.3, Udaipur Headquarter Salumber, District Udaipur in Sessions Case No.24/2010, whereby the appellant-accused has been convicted for the offences under Section 307 IPC and Section 3/25 of the Arms Act and has been sentenced as under:- U/s.307 IPC: 7 years' rigorous imprisonment with fine of Rs. 5,000/-, in default of payment whereof, to further undergo three months' rigorous imprisonment. U/s.3/25 Arms Act: Two years' rigorous imprisonment with fine of Rs. 500/-, in default of payment whereof, to further undergo 15 days' rigorous imprisonment. 2. The brief facts of the case are that on 29.11.2009, at about 1.45 p.m., the complainant Man Singh presented himself before the SHO, PS Kherwada and submitted a written report, alleging inter alia that on that day, at about 1.15 p.m., when after purchasing fruits at Chhani Mod, Kherwada, he was reversing his India Car No. RJ 27 CA 6725, then a motor-cycle was there behind his car and when he asked the motor-cycle driver to put the motor-cycle away so that he could reverse the car, the driver of the motor-cycle started quarrelling with him and thereafter he proceeded towards Chhani Tiraha Banjaria Pump in his car. The motor-cycle driver followed him on the said motor-cycle and after overtaking his car, opened a fire from his country-made pistol but the same was missed. Thereafter, he opened second fire which too missed. He thereafter opened third fire, due to which the glasses of car were broken. Thereafter, he reached the police station and the motor-cycle followed him till then and thereafter ran away. 3. On the basis of this report, an FIR No.374/2009 was registered at P.S. Kherwara and investigation commenced. After completion of investigation, the police filed charge-sheet against the appellant-accused for the offences under Section 307 IPC and Section 3/25 of the Arms Act in the court of Judicial Magistrate, First Class, Kherwara. The learned Magistrate, after taking cognizance for the aforesaid offences, committed the case to the court of learned Sessions Judge, Udaipur wherefrom the case was transferred to the court of learned Additional Sessions Judge (Fast Track), No.3, Udaipur (for short 'the learned trial court'). 4. The learned Magistrate, after taking cognizance for the aforesaid offences, committed the case to the court of learned Sessions Judge, Udaipur wherefrom the case was transferred to the court of learned Additional Sessions Judge (Fast Track), No.3, Udaipur (for short 'the learned trial court'). 4. The learned trial court, after hearing on charge, framed charges against the appellant-accused for the aforesaid offences to which the appellant-accused denied and claimed trial. To substantiate the charges, the prosecution examined as many as 14 witnesses and exhibited documents. Thereafter, the appellant-accused was examined under Section 313 Cr.P.C., wherein he stated the prosecution case as false and stated that he has been implicated falsely. The appellant-accused did not lead any evidence in defence. 5. The learned trial court, after hearing, convicted and sentenced the appellant-accused vide impugned judgment dated 25.11.2011 as aforesaid. Hence, this appeal. 6. I have heard Mr. KR Bhati, learned counsel for the appellant and Mr. LR Upadhyay, learned Public Prosecutor. 7. The learned counsel for the appellant-accused submitted that the prosecution has miserably failed to prove its case beyond doubt. Most of the prosecution witnesses have turned hostile and there are material contradictions in the statements of the prosecution witnesses. The learned trial court, without considering all these aspects of the matters, has convicted and sentenced the appellant-accused by the impugned order, which warrants interference by this Hon'ble Court. 8. Per contra, the learned Public Prosecutor, while supporting the impugned judgment, submitted that the prosecution was successful in bringing home the guilt of the appellant-accused. The learned trial court, after appreciating the prosecution evidence, has convicted and sentenced the appellant-accused, which does not warrant any interference by this court. 9. Before parting with the judgment, I deem it proper to scan the evidence led before the learned trial court during trial. 10. Man Singh (PW-1), in his statement, deposed that on 29.11.2009, at about 1.15 p.m., when after purchasing fruits at Chhani Mod, Kherwada, he was reversing his Indica Car No. RJ 27 CA 6725, then a motorcycle was there behind his car and when he asked the motor-cycle driver to put the motor-cycle away so that he could reverse the car, the driver of the motor-cycle started quarrelling with him and thereafter he proceeded towards Chhani Tiraha Banjaria Pump in his car. The motor-cycle driver followed him on the said motor-cycle and after overtaking his car, opened a fire from his country-made pistol but the same was missed. Thereafter, he opened second fire which too missed. He thereafter opened third fire, due to which the glasses of car were broken. Thereafter, he reached the police station and the motor-cycle followed him till then and thereafter ran away. It was also stated by him that at that time his friend Bhuralal was with him. 11. Sunil (PW-2), proved seizure memo of Indica Car (Ex.P/6) and seizure memo of empty cartridge case (Ex.P/7). 12. Jitendra (PW-3) though turned hostile but in cross-examination, he admitted his signatures on site inspection memo (Ex.P/4), recovery memo of pieces of bullet (Ex.P/4), seizure memo of empty cartridge case (Ex.P/6), recovery memo of country made pistol (Ex.P/8) and site inspection memo recovery place of country made pistol (Ex.P/9). 13. Jeeva (PW-4) also turned hostile but in his cross-examination he admitted his signatures on seizure memo of bullet (Ex.P/4) and seizure memo of empty cartridge case (Ex.P/6). 14. Prakash (PW-5) also turned hostile but in his cross-examination, he admitted his signatures on seizure memo of empty cartridge case (Ex.P/7) and recovery memo of mobile (Ex.P/11). 15. Ramchandra (PW-6) also turned hostile. He stated in his statement that on the date of incident he was doing his business of selling fruits. He stated that nothing happened on his shop. 16. Kantilal (PW-7) also turned hostile. He stated that the appellant-accused Deva is his brother-in-law. He was having a Motor Cycle Pulsar of without number which was taken by the police. 17. Dhanraj (PW-8) stated that on 05.02.2009, he was posted as Armourer and on that day he received one sealed packet containing country-made pistol in connection with Case No.374/2009. After examination, he prepared his report (Ex.P/15). 18. Vishnu Prasad (PW-9) stated that on 05.02.2010, he received one sealed packet from the malkhana which he took to RPL, Udaipur at Armour Workshop, where he received a report (Ex.P/15) which was deposited by him at the Police Station, Kherwara. 19. Mahendra Singh (PW-10) is the malkhana incharge. He proved malkhana register (Ex.P/17). It was also stated by him that on 05.02.2010, he handed one sealed packet to Vishnu Prasad, Constable for sending the same to the Armourer. 19. Mahendra Singh (PW-10) is the malkhana incharge. He proved malkhana register (Ex.P/17). It was also stated by him that on 05.02.2010, he handed one sealed packet to Vishnu Prasad, Constable for sending the same to the Armourer. On 10.02.2010, Articles marked 'A', 'B', 'C' and 'D' were sent to the FSL, which were deposited by Constable Farebi Lal, which he deposited in the FSL and produced receipt (Ex.P/21). 20. Dinesh (PW-11), in his statement, deposed that on 29.11.2009, at about 1.00 p.m., he was standing on his lari at Rani Road, Kherwara, where Mansingh came on his Indica Car and came out of his car for purchasing fruits and after purchasing the fruits when he was reversing the Car, one motor-cycle was standing behind the car, which he asked to remove but the motor-cycle driver started quarreling with Mansingh. Thereafter Mansingh proceeded towards Banjaria. Thereafter, he received a news that Deva opened fire over Mansingh. 21. Bhuralal (PW-12) turned hostile and felt ignorance about the incident. However, he admitted his signatures on identification memo (Ex.P/23). 22. Harish Chandra (PW-13) also turned hostile. However, he admitted his signatures on recovery memo (Ex.P/11) and arrest memo (Ex.P/10). 23. Mansingh (PW-14) is the Investigating Officer, who stated about the investigation of the matter. 24. From a careful scrutiny of evidence it reveals that Dinesh (PW-11) was present at the place of incident and he saw that a quarrel took place between the complainant and the appellant-accused on asking to remove the motor-cycle from behind the car. The complainant (PW-1) also identified the appellant-accused at the time of identification parade. Thus, it is clear that the appellant-accused was there at the time of incident. Moreso, though Jitendra (PW-3), Jeeva (PW-4), Prakash (PW-5) and Harish Chandra (PW-13) turned hostile but in their cross-examination, they clearly admitted their signatures on respective recovery memos. Further, the appellant-accused gave information (Ex.P/24) under Section 27 of the Evidence Act in pursuance to which one country made pistol and one live cartridge were recovered and to this effect recovery memo (Ex.P/8) was prepared. The said recovery was made from the residential house of the appellant-accused. The said pistol was sent for examination of the Armourer Vishnu Prasad (PW-9), who prepared his report (Ex.P/15) in which he found that the said pistol was a fire arm and was ready to be used and fire could be opened from that pistol. The said recovery was made from the residential house of the appellant-accused. The said pistol was sent for examination of the Armourer Vishnu Prasad (PW-9), who prepared his report (Ex.P/15) in which he found that the said pistol was a fire arm and was ready to be used and fire could be opened from that pistol. Not only this, the said pistol was also sent for chemical examination to the FSL and a report (Ex.P/25) was procured. According to the FSL Report (Ex.P/25), the pistol was ready to be used and that fire was opened from the said pistol. 25. Thus, from a total scrutiny of evidence, it reveals that at the time of incident, the appellant-accused was there at the place of incident. A quarrel took place between the appellant-accused and complainant. Thereafter, the complainant proceeded from there in his Indica Car and the appellant-accused followed him and opened three fires from the country-made pistol out of which two missed and one broke the glasses of the car. Thus, it is clear that the appellant-accused wanted to kill the complainant from his illegal pistol. Hence, the prosecution was successful in bringing home the guilt against the appellant-accused. The learned trial court, after considering all the aspects of the matter, rightly convicted the appellant-accused for the offences under Section 307 IPC and Section 3/25 of the Arms Act, which does not warrant any interference by this court. 26. The learned counsel for the appellant-accused, in the alternative, prayed that looking to the over-all facts and circumstances of the case particularly the fact that at the time of incident, the age of the appellant-accused was 27 years and that the appellant-accused has served substantive sentence, his sentence may be reduced to already undergone. He placed reliance upon the judgment delivered in the matter of Ballo @ Balveer v. State of Rajasthan [2013(3) Cr.L.R. (Raj.) 1583]. 27. In the case of Ballo @ Balveer (supra), a Coordinate Bench of this Court, while considering the fact that the incident was of the year 2008 and remained in custody for about five years three months, reduced the sentence to already undergone. 28. In the case in hand, from the record it reveals that there were 13 cases against the appellant-accused out of which, in four cases though he was acquitted but while giving benefit of doubt. 28. In the case in hand, from the record it reveals that there were 13 cases against the appellant-accused out of which, in four cases though he was acquitted but while giving benefit of doubt. Thus, it is clear that the appellant is a habitual offender. Hence, I do not deem it proper to interference with the sentence awarded by the learned trial court. 29. In view of the above, I do not find any merit in this appeal. The same is, therefore, dismissed. 30. The record of the trial court be returned with a copy of this judgment. Appeal dismissed.