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2017 DIGILAW 1916 (RAJ)

BOTH LAL GURJAR v. STATE OF RAJASTHAN

2017-08-28

KAILASH CHANDRA SHARMA, MOHAMMAD RAFIQ

body2017
JUDGMENT : Mohammad Rafiq, J. These appeals are directed against judgment dated 19.09.2012 passed by the Court of Additional Sessions Judge, Camp Court Bhawani Mandi, District Jhalawar (for short 'the trial court') whereby the accused-appellants were convicted and sentenced for offence under Section 148 IPC to three years' rigorous imprisonment and fine of Rs. 500/- each, in default of payment of fine to further undergo three months' rigorous imprisonment; for offence under Section 302/149 IPC to life imprisonment and fine of Rs. 2,000/- each, in default of payment of fine to further undergo three years' imprisonment; for offence under Section 307/149 IPC to ten years' rigorous imprisonment and fine of Rs. 1,000/- each, in default of payment of fine to further undergo one year's rigorous imprisonment and for offence under Section 341 to one month's simple imprisonment. All the sentences were ordered to run concurrently. 2. Briefly stated the facts of the case are that on 01.10.2008, complainant Sujan son of Kashiram (P.W.2) submitted a written report (Exhibit P-37) to ASI, Shri Ramzan Mohammad (P.W.23) at Maal Moja Salotiya, addressing in the said report to SHO, Police Station Sunel, District Jhalawar alleging an incident to have taken place on the same day at about 12.00 P.M. On the basis of the above mentioned report, the police registered a criminal case bearing F.I.R. No. 147/2008 for offence under Sections 147, 148, 149, 341, 323, 307 IPC and investigation commenced. During investigation injured Shyam Lal and injured Balu @ Balaram died during treatment and Section 302 IPC was added. Upon completion of investigation, the police submitted the charge sheet against accused persons including the present accused-appellants for offence under Sections 147, 148, 149, 341, 323, 325, 307, 302 and 201 I.P.C. in the Court of learned Additional Chief Judicial Magistrate, Bhawani Mandi. The offences being exclusively triable by court of Sessions, thereby the learned Magistrate committed the case to the Court of learned District & Sessions Judge, Jhalawar and ultimately the case was transferred to the court of learned Additional Sessions Judge, Camp Court Bhawani Mandi, District Jhalawar for trial. The trial court after hearing the arguments on charge, framed the charges against the accused appellants for offence under Sections 147, 148, 302, 302/149, 307, 307/149, 341 IPC. The accused appellants denied the charges and claimed to be tried. The trial court after hearing the arguments on charge, framed the charges against the accused appellants for offence under Sections 147, 148, 302, 302/149, 307, 307/149, 341 IPC. The accused appellants denied the charges and claimed to be tried. The prosecution in support of its case produced 28 witnesses and exhibited 57 documents. Thereafter, the accused-appellants were examined under Section 313 Cr.P.C., 1973 wherein they stated that they have been falsely implicated in the case and they are innocent. In defence, no witness was produced and 12 documents were got exhibited. Upon completion of trial, learned trial court vide judgment dated 19.09.2012 convicted and sentenced the accused-appellants in the manner indicated here-in-above. 3. Learned counsel for the appellants have addressed the Court on the manner in which the learned trial court has recorded finding of conviction against six accused-appellants. It is argued that there were in all 12 accused named in the FIR and it was additionally alleged by the informant that many other accused were with them. Learned counsel have referred to discussion made by the trial court in para no. 15 and 16 of the impugned judgment where the learned trial court has relied on the statement of Sujan (P.W.2) informant and injured eye witness, Kishan Lal (P.W.3) and then referred to para no. 21 of the judgment where the trial court has disbelieved Tufan (P.W.4); Nanda @ Nandlal (P.W.10) and Rajaram (P.W.24) as eye witnesses. It is contended that the police did not file charge sheet against six accused persons against whom specific allegation was made in the FIR for using weapons such as firearm and sword whereas there were no corresponding firearm injuries. It is argued that the kind of injuries which the deceased sustained also could not have been caused by sword. The police filed charge sheet against 13 accused, but the learned trial court has convicted only six accused whose names were mentioned in the FIR and acquitted all seven accused whose names were not mentioned in the FIR. But in doing so, learned trial court has adopted a very strange method in analysing the evidence on record. The police filed charge sheet against 13 accused, but the learned trial court has convicted only six accused whose names were mentioned in the FIR and acquitted all seven accused whose names were not mentioned in the FIR. But in doing so, learned trial court has adopted a very strange method in analysing the evidence on record. In this connection, learned counsel court referred to findings recorded by the learned trial court in para 24, 25, 29 and 30 of the judgment and argued that findings of the learned trial court are based entirely on the statements of the witnesses originally recorded under Section 161 Cr.P.C., 1973 and their supplementary statements (titamba bayan) recorded subsequently. Learned counsel argued that previous statement of the prosecution witnesses in view of Section 145 of the Evidence Act could be used only for the purpose of confronting them at the time cross examination and not for any other purposes. Police statements of the prosecution witnesses cannot be read for any other purpose. 4. Learned Public Prosecutor even though opposed the appeals but could not defend this position that the judgment of the learned trial court could not have been founded entirely on the statements of witnesses recorded under Section 161 Cr.P.C., 1973 Moreover, he has submitted that learned trial court has allowed the application under Section 319 Cr.P.C., 1973 filed by the complainant on which separate order was passed on the same day on which the impugned judgment was passed which thereby issued process against co-accused Gopal S/o Uda, Ram Chandra S/o Pratap, Tufan son of Gopal; Balu S/o Bardilal and Heera S/o Pratap for the same offences for which the accused appellants were charged. It is argued that initially in the revision petition filed against the aforesaid order bearing No. 1047/2012, execution of the non-bailable warrants against the accused was stayed, but subsequently, this Court vide order dated 07.02.2014 disposed off the revision petition with liberty to the petitioners to raise all the objections which they had raised in the revision petition before the trial court itself. However, trial of those five accused could not proceed owing to the fact that original record of the case was summoned by this Court. 5. However, trial of those five accused could not proceed owing to the fact that original record of the case was summoned by this Court. 5. We have heard the rival submissions and perused the impugned judgment in the light of arguments aforementioned and we are surprised to find that the learned trial court has rather than recording its judgment on the basis of statements of the witnesses in the court, has based its judgment on the analysis of statements of witnesses recorded by the police under Section 161 Cr.P.C., 1973 We may in this connection refer to para 24 of the judgment wherein the trial court has discussed the statement of Sujan (P.W.2), informant and then has mentioned that his first statement under Section 161 Cr.P.C., 1973 (Exhibit D-4) was recorded on 01.10.2008 and his supplementary statement (Titamba bayan) under Section 161 Cr.P.C., 1973 (Exhibit D-3) was recorded on 01.11.2008. Though this witness in the Court stated that he did not give supplementary statement to police. Similarly, first statement of Kishan Lal (P.W.3) under Section 161 Cr.P.C., 1973 (Exhibit D-5) was recorded on 02.10.2008 and his supplementary statement under Section 161 Cr.P.C., 1973 (Exhibit D-6) was recorded on 02.11.2008. This witness in his court statement also stated the he did not give any supplementary statement under Section 161 Cr.P.C., 1973 Learned trial court then has mentioned that Kishan Lal (P.W.3) in his statement recorded under Section 161 Cr.P.C., 1973 (Exhibit D-5) recorded on 02.10.2008 named 22 accused but name of three accused, Kailash, Mohan Lal and Kalulal were not mentioned. He additionally added these three names in his supplementary statement under Section 161 Cr.P.C., 1973 (Exhibit D-6) recorded on 02.11.2008. Similarly, Sujan (P.W.2) in his first statement under Section 161 Cr.P.C., 1973 (Exhibit D-4) recorded on 01.10.2008 mentioned 12 persons as accused whereas in supplementary statement recorded under Section 161 Cr.P.C., 1973 (Exhibit D-3) recorded on 01.11.2008, he named 20 persons as accused. The names of accused persons with reference to initial and supplementary statements of Sujan (P.W.2) and Kishan Lal (P.W.3) have been reproduced by the learned court trial in para 24 of the judgment. The names of accused persons with reference to initial and supplementary statements of Sujan (P.W.2) and Kishan Lal (P.W.3) have been reproduced by the learned court trial in para 24 of the judgment. Then, the learned trial court has proceeded to observe that the Investigating Officer, Ram Singh Meena (P.W.26) proved that he recorded supplementary statements of these two witnesses which were Exhibit D-3 and Exhibit D-6 and found that names of 10-12 persons were wrongly included by these witnesses in their supplementary statements. But, the learned trial court has disbelieved the assertion of the Investigating Officer by observing that Sujan (P.W.2) and Kishan Lal (P.W.3) in their supplementary statements (Exhibit D-3 and Exhibit D-6 respectively) had not stated that they wrongly named of 10-12 persons as accused. Thereafter, the learned trial court has discussed supplementary statements recorded under Section 161 Cr.P.C., 1973 of Tufan (P.W.4) Exhibit P-8; Nanda @ Nandlal (P.W.10) Exhibit P-10; Rajaram (P.W.24) Exhibit P-12 and Sanatan (P.W.1) Exhibit D-2 and observed that they have mentioned that some of the names were wrongly given by them. Then the learned trial court has made discussion on the statements of Sujan (P.W.2) and Kishan Lal (P.W.3) again in para 25 and then sought to compare statement of Kishan Lal (P.W.3) with his police statement under Section 161 (Exhibit D-5) in which he named 22 persons as accused. It recorded that 11 of those names are common in the statements of Sujan (P.W.2) and Kishan Lal (P.W.3). Finally in para 29 of the judgment, again learned trial court has referred to the statement of Sujan (P.W.2) under Section 161 Cr.P.C., 1973 in support of its finding of acquittal in favour of some of the accused. Thus, the learned trial court has acquitted all those whose names were not mentioned in first information report on the basis of variation which it found between statements of Sujan (P.W.2) and Kishan Lal (P.W.3) and their supplementary statements recorded under Section 161 Cr.P.C., 1973 6. The course that is adopted by the learned trial court cannot be approved in law. Police statements, as has been rightly argued, could be used only for limited purpose. The course that is adopted by the learned trial court cannot be approved in law. Police statements, as has been rightly argued, could be used only for limited purpose. We may in this connection refer to section 145 of the Indian Evidence Act which provides that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Reading of the whole judgment passed by the trial court makes it evident that the learned trial court has relied more on the police statements of only two witnesses i.e. Sujan (P.W.2) and Kishan Lal (P.W.3), rather than on their court statements and in that process erred in law by recording perverse or erroneous finding of conviction of the accused-appellant on that basis. Unless the witnesses were in their cross examination confronted with relevant part of their statement under Section 161 Cr.P.C., 1973 such statement could not be read in evidence. Learned Trial Court in its zeal to safeguard against false implication has over implicated the things by applying a wrong reasoning. At the same time, learned trial court also on the same day passed separate order directing issuance of process against five other accused, whose trial could not proceed further owing to the fact that the original record of this case was summoned by this Court. Last order passed on 06.04.2015 by the trial court was that three accused Gopal, Ram Chandra and Hira Lal were present and application for exemption from attendance filed in respect of Tufan and Balaram was allowed and matter was fixed for framing of charges on 08.09.2015. 7. The Hon'ble Supreme Court in Shashikant Singh v. Tarkeshwar Singh and Another, (2002) 5 SCC 738 has held that the words "could be tried together with the accused" in Section 319 Cr.P.C., 1973 appear to be directory. 7. The Hon'ble Supreme Court in Shashikant Singh v. Tarkeshwar Singh and Another, (2002) 5 SCC 738 has held that the words "could be tried together with the accused" in Section 319 Cr.P.C., 1973 appear to be directory. The Hon'ble Supreme Court in Babubhai Bhimabhai Bokhiria and Another v. State of Gujarat & Others, (2013) 9 SCC 500 has held that expression "could be tried together with the accused" does not mean that newly added accused must be tried along with the accused sent for trial. Mere fact that trial of remaining accused was already complete would not preclude the newly added accused for the offence in which he has been summoned by the court from being tried separately. It was further held that independent trial of any other person who could have been tried jointly under Section 319 Cr.P.C., 1973 is not barred thereby. If joint trial would delay trial of existing accused indefinitely, independent trials of existing accused and additional accused under Section 319 Cr.P.C., 1973 can be directed. 8. In view of above discussion, impugned judgment dated 19.09.2012 passed by the trial court is set aside and the matter is remitted to the trial court to pass a fresh judgment after hearing the accused-appellant. Trial court may separately proceed against those accused against whom process was issued by it by recourse to Section 319 Cr.P.C., 1973 9. With the aforesaid direction, all the three appeals stands disposed off. Record of the case be sent back to the trial court along with copy of this judgment for needful forthwith. 10. Office is directed to place a copy of this judgment on record of each connected appeal.