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2017 DIGILAW 2522 (RAJ)

Rajendra Kumar Sharma v. State of Rajasthan

2017-11-16

GOVERDHAN BARDHAR

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ORDER : Goverdhan Bardhar, J. A challenge has been made by the appellant complainant in the instant criminal appeal filed under section 378 (4) Cr.P.C, 1973 to the Judgment dated 21.08.2009 passed by learned Addl. Civil Judge (Jr. Division) & Judicial Magistrate, S.No. 16, Jaipur City, Jaipur (Raj.) ('the learned trial court') passed in Criminal Case Nos. 588/1996, State of Rajasthan v. Mahendra Kalra & Anr., whereby the accused respondent No. 2 Mahendra Kalra has been acquitted by the learned trial court from the charges levelled against him under sections 323, 341 and 435 I.P.C. 2. Brief facts of the case are that on 4.3.1998 complainant Rajendra Kumar Sharma (PW2) submitted a written report (Ex.P3) to the SHO, Police Station Brahmpuri, Jaipur to this effect that he resides in House No. 2499 situated in Jailal Munshi Ka Rasta. Due to his quarrel with his elder brothers he lives in his in-laws. Today on 4.3.1998 from his in-laws he came to the house of his sister situated in Kagadiwada on motorcycle. Behind him his elder brother Prem Prakash and Mahendra Kalra came on motor-cycle and after stopping him gave beating to him from fists. These persons after taking petrol from his motorcycle, burnt the said motorcycle. 3. On the basis of aforesaid written report (Ex.P3), an FIR No. 57/1998 (Ex.P4) was got registered for the charge under sections 341, 323 and 427 IPC. 4. After completion of investigation, the police submitted charge-sheet against the accused-respondents. Afterwards the learned trial court took cognizance against the accused respondents for the aforesaid offences. 5. Thereafter, the learned trial court read over the charge in substance to the accused respondents, who denied the charges and claimed to be tried. 6. The prosecution in support of its case produced six witnesses and certain documents were got exhibited. 7. On the basis of statements of prosecution witnesses, the learned APP moved an application on 16.04.2001 under section 216 Cr.P.C, 1973 before the learned trial court for alteration of charge. On the said application, the learned trial court passed an order by which amended charge under section 435 IPC was framed in-stead of 427 IPC after having charge under sections 323, 341 IPC. During the course of trial accused respondent No. 2-Mahendra Kalra remained absent as a result of which his bail bonds were cancelled and on 14.02.2006 he was declared as absconder. During the course of trial accused respondent No. 2-Mahendra Kalra remained absent as a result of which his bail bonds were cancelled and on 14.02.2006 he was declared as absconder. Thus, on the aforesaid basis, the learned trial court tried the matter only against accused respondent No. 3-Prem Kumar Sharma. 8. Thereafter, the statement of the accused respondent No. 3-Prem Prakash Sharma was recorded under sections 313 Cr.P.C., 1973 In defence the accused respondent No. 3 did not produce any witness. 9. The learned trial court after hearing acquitted the accused respondent No. 3- Prem Prakash Sharma vide impugned Judgment dated 21.08.2009 from the charges levelled against him. 10. The appellant complainant aggrieved with the impugned judgment of acquittal of accused respondent No.-3 Prem Prakash Sharma has filed instant criminal appeal before this Court. 11. Learned counsel for the appellant complainant has argued that the learned trial court has not appreciated the fact that all the ingredients of provisions of sections 323, 341 and 435 IPC were clearly proved. Thus, there was no occasion for the learned trial court to acquit the accused respondent No. 3-Prem Prakash Sharma for the charges levelled against him. Counsel argued that the learned trial court while passing the impugned judgment of acquittal has given benefit of doubt to accused appellant No. 3 Prem Prakash Sharma on flimsy grounds. Counsel argued that the learned trial court has not appreciated the evidence of the complainant and the prosecution in its correct perspective. Counsel argued that facts related to both the accused respondents are identical despite that on the one side the learned trial court convicted and sentenced the accused respondent No. 2- Mahendra Kalra of the charges levelled against him vide judgment of conviction and sentence dated 26.10.2009 and erred in acquitting the accused respondent No. 3 Prem Prakash Sharma for the charges levelled against him vide impugned judgment. 12. Counsel argued that there must be joint trial against both the accused respondents No. 2 and 3 for the same offence. In support of the aforesaid submission counsel placed reliance on the judgment delivered by the Hon'ble Apex Court in the case of Badri Prasad Prajapati and etc. 12. Counsel argued that there must be joint trial against both the accused respondents No. 2 and 3 for the same offence. In support of the aforesaid submission counsel placed reliance on the judgment delivered by the Hon'ble Apex Court in the case of Badri Prasad Prajapati and etc. v. State of Madhya Pradesh, 2005 Cri.L.J. 1856 and argued that before a statement by one of the accused person can be taken into consideration against the other accused the following conditions must be fulfilled- (i) There must be a joint trial for the same offence; (ii) It must be a confession; (iii) the confession of guilt must affect himself and others, i.e implicate the maker substantially to the same extent as the other accused; (iv) the confession of guilt must be duly proved. 13. In this case the total case of the prosecution hinges on the testimony of complainant PW2-Rajendra Kumar Sharma. This witness in his cross-examination has specifically admitted that accused is his real brother and 10-20 cases are going on between them. This witness has stated that he does not understand about the site plan. This witness in his statement admitted that in the written report (Ex.P3) he did not mention the names of 10-20 neighbouring persons who were gathered at the time of alleged incident. In the written report (Ex.P3) no time has been mentioned about the alleged incident. This witness in his statement has stated that he did not receive any injury. However, in the police statement (Ex.D1) recorded under section 161 Cr.P.C, 1973this witness has stated that he was given beating by fists. Though this witness in the police statement (Ex.D1) recorded under section 161 Cr.P.C, 1973has stated that 'C to D' part written by the police is wrong. This witness in his cross-examination has admitted that respondent No. 3-Prem Prakash Sharma did not put fire of his motorcycle. 14. Thus, a perusal of entire statement of PW2-Rajendra Kumar Sharma reveals that this witness in his cross-examination has stated that 10-20 person had come, the motor-cycle was in burnt condition. Thus, it is clear that this witness was not present at the spot because in Ex.P3 the motorcycle has stated to be burnt after giving beating and this witness in his cross-examination has stated he reached on the spot when the motorcycle was burnt. Thus, it is clear that this witness was not present at the spot because in Ex.P3 the motorcycle has stated to be burnt after giving beating and this witness in his cross-examination has stated he reached on the spot when the motorcycle was burnt. Thus, from the statement of this witness it is clear that he has made great contradictions in his testimony. 15. PW-1-Sri Ram Kishore Sharma in his statement has stated that complainant Rajendra Kumar Sharma (PW2) is his brother-in-law. This witness in his statement stated that on 4.3.1998 at about 1:00 PM his brother-in-law was given beating by Prem Prakash (accused respondent No. 3) and his friend Mahendra Kumar from fists and after taking petrol from the motorcycle of Rajendra Kumar, they burnt the said motorcycle. This witness in his statement stated that the police after seizing the motor-cycle prepared seizure memo (Ex.P2) site plan (Ex.P1). Complainant is brother-in-law of this witness. This witness in his cross-examination has admitted that who burnt the motorcycle, he did not see. Thus, it is clear that he is an interested witness. 16. PW-4-Shanti Devi is wife of Ramkishore Sharma (PW1). Thus, he is sister of complainant (PW2). This witness in her statement has stated that of which thing beating was given, she did not see. This witness in her cross-examination has stated that there is conflict in between their family and their 25-30 cases are going on. The prosecution produced this witness as an eyewitness of the incident but from the statement of this witness it is clear that she was not present at the spot because she was with PW1-Ramkishore. Thus the statement of this witness is not reliable. 17. PW-6-Manish Kumar who was I.O in the case in his cross-examination has admitted that PW1-Ramkishre and PW4-Shanti Devi were not present at the spot. This witness in his statement admitted that the complainant Rajendra Kumar, Ramkishore, Shanti Devi are relatives and PW3-Amar Singh is house owner of complainant. 18. So far as the reliance placed by the counsel for the appellant claimant upon the Judgment delivered by the Hon'ble Apex Court in the case of Badri Prasad Prajapati & etc. This witness in his statement admitted that the complainant Rajendra Kumar, Ramkishore, Shanti Devi are relatives and PW3-Amar Singh is house owner of complainant. 18. So far as the reliance placed by the counsel for the appellant claimant upon the Judgment delivered by the Hon'ble Apex Court in the case of Badri Prasad Prajapati & etc. (supra) as to joint trial of accused respondents No. 2 and 3, same is entire different and the same cannot be made applicable to the facts of the present case because during the course of trial accused respondent No. 2-Mahendra Kalara remained absent as a result of which his bail bonds were cancelled and 14.2.2006 the learned trial court declared him absconder. It is pertinent to mention here that when trial of any accused is going on and another accused related to the same offence has absconded himself/themselves, the trial of the case of such accused cannot be lingered on and separate trial of other co-accused is required. Thus, the learned trial court was rightly in acquitting the accused respondent No. 3-Prem Prakash Sharma for the charges levelled against him. 19. The Hon'ble Apex Court in the case of State of Rajasthan v. Raja Ram, 2003 (2) WLC SC Cri. 302 has held ad-infra:- "The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice, which may arise from acquittal of the guilty, is no less than the conviction of an innocent. Further, it is held that in a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. The principle to be followed by the Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. 20. The principle to be followed by the Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. 20. The findings given by the learned trial court as to acquittal of the accused respondent No. 3-Prem Prakash Sharma of the charges framed against him are just and proper and based on fully appreciation of evidence and there are no compelling and substantial reasons to interfere in the impugned judgment passed by the learned trial court. 21. In the result the criminal appeal filed by the appellant complainant is without any substance and accordingly stands dismissed and the impugned Judgment of acquittal dated 21.08.2009 passed by learned Addl. Civil Judge (Jr. Division) & Judicial Magistrate, S.No. 16, Jaipur City, Jaipur (Raj.) in Criminal Case Nos. 588/1996 is confirmed. 22. Registry is directed to send back the record of the case to the learned trial court forthwith.