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2017 DIGILAW 1464 (RAJ)

STATE OF RAJASTHAN v. MANA RAM

2017-07-04

GOPAL KRISHAN VYAS, MANOJ KUMAR GARG

body2017
JUDGMENT : 1. The instant criminal leave to appeal has been filed by the State of Rajasthan under Section 378 (iii) & (i) of Cr.P.C., against the judgment dated 26th of April, 2016 passed by learned Sessions Judge, Jodhpur Metropolitan, in Session Case No.72/2012, by which the learned trial court acquitted the respondent from the charges levelled against him for the offence under Sections 302, 201 and 392 of IPC. 2. 2. As per facts of the case, the complainant Lal Singh submitted a written report on 20.03.2012 at 12.30 AM at Police Station- Dangiawas, District Jodhpur, in which following allegations were levelled: lsok esa Jheku Fkkukf/kdkjh egksn; th] iqfyl Fkkuk M+kafx;kokl] egkuxj tks/kiqj fo"k; & esjs HkkbZ nhiflag dh gR;k dj mlds lcwr u"V djus ds lEcU/k esa eqdnek ntZ djus ckcrA egksn; th] fuosnu gS fd eSa yky flag jkBkSM+ iq= Jh tksj flag nrd iq= fd'kksj flag tkfr jktiwr jkBkSM+ fuoklh tks/kiqj vtZ djrk gwa fd esjk NksVk HkkbZ fni flag tks gekjs lkFk jgrk gS tks 'kke ds djhc 7-30 cts ?kj ls viuh eksVj lkbfdy ij fdlh dks :i;s nsus ds fy;s tk jgk Fkk rc esjh ekrk th us euk dj fn;k fd 'kke ds le; fdlh dks :i;s nsus ;k ?kj ls ckgj ugha tkuk gS dqN le; i'pkr~ og pqi&pki ?kj ls fudy x;k og iSny iSny :i;s ysdj fudy x;k dqN le; ckn og ?kj ugha vk;k rks ge ?kjokyksa us irk fd;k rks n;ky fxjh tks vej flag ds dqvk dk d`"kd gS mlus crk;k fd esjs Qksu ls fdlh dks Qksu fd;k Fkk og fnai flag ogka ls fudy x;k geus bZ/kj m/kj rykl fd;k og gesa ugha feyk jkr dks ckluh fuoklh tksjkjke us eq>s Qksu djds crk;k fd ckluh unh ds ikl fni flag dh yk'k iM+h gSa rc eSaus o vU; ifjokj okyksa us tkdj ns[kk rks esjs HkkbZ dh yk'k ckluh oSUnk tkstkjh unh ds ikl Mkej lM+d ds fdukjs fpr iM+h Fkh pIiysa ikl iM+h Fkh eSaus esjs HkkbZ dh yk'k dks xkSj ls ns[kk rks mlds psgjs ij xEHkhj pksVsa Fkh psgjk xgjh pksV ls fipdk gqvk Fkk geus vkl ikl ns[kk rks ,d cM+s iRFkj ij rktk [kwu yxk gqvk FkkA ml txg ij [kwu ds NhaVs fc[kjs gq, FksA ekSds ij xkao ds yksx dkQh HkhM+ gks xbZ FkhA xkao okyksa us ns[kk fd yk'k ls djhc 40&50 dne txg&txg [kwu ds NhaVs rktk fc[kjs gq, FksA esjs HkkbZ fni flag ds fdlh vKkr O;fDr us gR;k dj esjs HkkbZ ds ,DlhMsaV ls e`R;q gksus dk :i nsus ds fy;s esjs HkkbZ ds 'ko dks lM+d ij M+ky dj fdlh cM+s iRFkj ls psgjk dqpy dj lcwr u"V djus dk iz;kl fd;k o iRFkj dks djhc 30 QhV nwj Qsad fn;kA vr% vkils vuqjks/k gS fd esjs HkkbZ ds gR;kjksa dks fxjQrkj dj l[r ls l[r ltk fnykus dh dk;Zokgh djsa o U;k; fnykus dh d`ik djsA esjs HkkbZ fni flag us n;ky fxjh ds Qksu uacj 7568953968 }kjk 'kkl dks djhc 8-15 ih-,e- ij fdlh O;fDr dks Qksu fd;k FkkA izkFkhZ yky flag jkBkSM+ 3. The FIR was filed against unknown person/s and no allegation of quarrel was incorporated in the written report, however, the SHO, Police Station Dangaiwas, upon receipt of written report, registered FIR No.52/2012 under Sections 302 and 201 IPC and proceeded with investigation. 4. During investigation, the respondent, Manaram was arrested on the basis of evidence of last seen and thereafter upon information given by him u/s of 27 of the Evidence Act, articles currency notes of Rs.2,93,000/- as well as blood stained clothes, and other articles were recovered in the presence of two witnesses. After completion of the investigation, charge sheet was filed against the respondent, Manaram, under Sections 302 and 201 IPC in the court of Chief Metropolitan Magistrate, Jodhpur from where the case was committed to the court of Sessions Judge, Jodhpur, for trial. 5. The learned trial court after recording statements of 21 prosecution witnesses, and exhibiting 56 documents, recorded the statements of respondent u/s 313 Cr.P.C., in which respondent, Manaram, denied all the allegations made by the prosecution witnesses, and said that he is innocent but no evidence was led in defence inspite of granting of opportunity. 6. The learned trial court after hearing the arguments of the parties considered the evidence and finally acquitted the respondent from the charge levelled against him vide impugned judgment dated 26.04.2016 on the ground that the prosecution has failed to prove its case beyond reasonable doubt on the basis of circumstantial evidence while following the golden principles laid by the Hon'ble Apex Court in the case of Sharad Birdhichand Sarda, reported in AIR 1984 SC 1622 . 7. Learned Public Prosecutor vehemently argued that it is a fit case for granting leave to appeal against the judgment impugned because inspite of trustworthy and reliable evidence of recovery of articles and last seen, the learned trial court acquitted the respondent, Manaram, from the charges levelled against him, therefore, the judgment impugned deserves to be quashed. 7. Learned Public Prosecutor vehemently argued that it is a fit case for granting leave to appeal against the judgment impugned because inspite of trustworthy and reliable evidence of recovery of articles and last seen, the learned trial court acquitted the respondent, Manaram, from the charges levelled against him, therefore, the judgment impugned deserves to be quashed. He further argued that although there is no eyewitness of the incident but respondent, Manaram, was arrested on the basis of evidence of last seen given by PW.9 Dayal Giri, and articles belonging to the deceased were recovered upon his information, the recovery of articles belonging to the deceased and last seen is proved, but the learned trial court disbelieved the evidence of recovery on the ground that recovery was not made in the presence of independent witnesses. The witnesses PW.4- Arvind Kumar and PW.5- Mukesh Soni are the police officials, therefore, recovery made in their presence, creates serious doubt, but such finding is not sustainable in law. 8. Learned Public Prosecutor lastly argued that in absence of direct evidence the conviction can be based upon circumstantial evidence if it is proved by the trustworthy evidence and in this case the prosecution has proved its case beyond reasonable doubt on the basis of evidence of last seen and recovery of articles, therefore, leave against the judgment impugned may kindly be granted. 9. After hearing the learned Public Prosecutor, we have perused the entire evidence, so also, considered the arguments advanced by the learned Public Prosecutor. Admittedly there is no eyewitness in this case and, no motive is alleged in the FIR for committing murder of the deceased by the respondent. Upon perusal of statement of PW.9- Dayal Giri, we are of the firm opinion that said witness cannot be termed as a witness of last seen because his testimony is seriously doubtful to accept the evidence of last seen. 10. With regard to recovery of articles, we have no hesitation to hold that the recovery of articles was not made in the presence of independent witnesses and most of the witnesses of recovery are police officials. 10. With regard to recovery of articles, we have no hesitation to hold that the recovery of articles was not made in the presence of independent witnesses and most of the witnesses of recovery are police officials. So far as mobile call details is concerned, the learned trial court discussed the evidence in paragraphs 25 and 32 of the judgment and held that the prosecution has failed to prove the fact that any conversation had taken place in between the deceased and the respondent on the date of occurrence. 11. In view of above, we are of the opinion that all the circumstances, upon which the prosecution has relied upon, are not proved beyond all shadows of doubt, therefore, the learned trial court has not committed any error to acquit the respondent from the charges levelled against him in the light of golden principles laid by the Hon'ble Apex Court in the case of Sharad Birdhichand Sarda (supra). 12. Consequently, no case is made out for granting leave to appeal, hence, the instant criminal leave to appeal is hereby dismissed.