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2018 DIGILAW 1626 (RAJ)

Nihal Singh v. State of Rajasthan Through P. P.

2018-08-02

PANKAJ BHANDARI

body2018
JUDGMENT Pankaj Bhandari, J. Appellant has preferred this appeal aggrieved by judgment and order dated 18.1.2017 passed by Special Judge (Dacoity Affected Area), Dholpur, whereby Court has convicted the present appellant for offence under Section 332, 353, 307 IPC read with Section 11 of RDA Act and has acquitted the accused for offence under Section 3/25 of the Arms Act and has sentenced the accused for four years for offence under Section 307 IPC read with Section 11 of RDA Act and has imposed a fine or Rs. 1,000/- and on non-payment of fine to undergo imprisonment of one month. For offence under Section 332 IPC, appellant has been sentenced for three years imprisonment and for offence under Section 353 IPC for one year imprisonment. 2. The factual matrix of the case are that on 16.3.2009 a secret information was received by the police that dacoits of Lotai Gang Narayan Singh and Nihal Singh along with other dacoits are present at their house near village Deewanpura. Three teams were constituted and house of present appellant and Narayan Singh was surrounded by the police party when police party approached the house of the dacoits, they tried to escape and fired on the police party. In cross fire, Narayan Singh expired and appellant surrendered before the police. One 315 bore rifle and 90 bullets were recovered from the appellant. Police after due investigation submitted charge-sheet against the appellant. 3. After hearing the charge arguments, charges were framed against the appellant who denied the charges and sought trial. Prosecution examined as many as 27 witnesses and as many as 40 documents were exhibited on behalf of the prosecutrix. Explanation of the accused was recorded under Section 313 of Cr.P.C. and he stated that he has been falsely implicated. Exhibit D-1 to Exhibit D-9 were exhibited on behalf of appellant. Court below after hearing the final arguments has convicted the present appellant in aforementioned offences, aggrieved by which present appeal has been preferred. 4. It is contended by counsel for the appellant that it is a case of fake encounter. As per the prosecution story when Narayan Singh and appellant were running away from their house, they fired at the police party, in cross fire Narayan Singh sustained gun shot injury and expired due to the gun shot injury. 4. It is contended by counsel for the appellant that it is a case of fake encounter. As per the prosecution story when Narayan Singh and appellant were running away from their house, they fired at the police party, in cross fire Narayan Singh sustained gun shot injury and expired due to the gun shot injury. It is argued that from the statement of the witnesses, it is revealed that police party fired from a distance of 100 to 300 feet, whereas, as per PW-14 Dr. Gopal Prasad Goyal, there was a gun shot injury caused at the back of the deceased Narayan Singh. The entry wound was at the back and the exit wound was at the front of the chest, he has also opined that the gun shot injury may have been caused from a distance of 3 feet. 5. It is also contended that Narayan Singh had sustained three fractures of Rib 1, 2 and 7 on his chest, there are no chances of Narayan Singh sustaining three fractures, if his death was caused by the gun shot fired from 100 to 300 feet distance. Yet another argument raised on behalf of the appellant is that present appellant was not arrested on the spot, as per the arrest memo Exhibit P-32, he was arrested on 4.4.2009. The incident took place on 16.3.2009. No record whatsoever of the hospital has been produced to establish that the appellant sustained injuries and was hospitalized. It is also contended that recovery memo does not bear the signatures of the appellant. No independent witness was summoned by the police whereas the plea taken by Investigating Officer is that villagers refused to become witness in the case. No notice whatsoever has been served on the witnesses to establish that there was a refusal by the witnesses. No action has been taken against the witnesses who have refused to become witness in the case. 6. It is also contended there is allegation against the present appellant and deceased Narayan Singh was that they fired at the police party. It is thus contended that a false story has been connected implicate the appellant. 7. PW-24 Dr. Ashfaq Ahmed has been examined on behalf of the prosecution who in his cross examination, has stated that injury No.1 caused to Mukesh Kumar Police Constable, was not a gun shot injury but was caused by a blunt weapon. It is thus contended that a false story has been connected implicate the appellant. 7. PW-24 Dr. Ashfaq Ahmed has been examined on behalf of the prosecution who in his cross examination, has stated that injury No.1 caused to Mukesh Kumar Police Constable, was not a gun shot injury but was caused by a blunt weapon. 8. Learned Public Prosecutor has opposed the appeal. His contention is that appellant has criminal antecedents. A price money of Rs. 2,000/- was announced by the S.P. District Dholpur against the appellant as he was having 18 criminal antecedents. It is also contended that appellant was apprehended from the place of incident, he surrendered before the police but as his condition was not stable, he was referred to the hospital and it is for that reason that the signatures were not taken in the recovery memo. 9. I have considered the contentions and have perused the record of the case. The story as put up by the prosecution do not inspire confidence, that reason being cross firing was done from a distance of 100 to 300 feet, whereas deceased Narayan Singh sustained a gun shot injury which has an entry wound and an exit wound, the entry wound is at 7-12 and the exit wound is 3cm below the right nipple which shows that he was shot from point blank range. Doctor has also opined that gun shot injury could have been caused from a distance of 3 feet. Further no explanation whatsoever has been given for the three fractures that deceased Narayan Singh has sustained on his 1st, 2nd and 7th rib. 10. It is also pertinent to note that present appellant was not arrested on the spot, even though he surrendered before the police, if police have prepared a recovery memo, it could have also prepared an arrest memo. No record whatsoever has been produced to establish that appellant was shifted to hospital. 11. Thus, prosecution has utterly failed in establishing the fact that appellant sustained injuries and was rushed to the hospital. The recovery memo does not bear signatures of the appellant and there is no independent witness to establish the case of the prosecution. 12. In view of the above, it is crystal clear that appellant was not present on the spot and he has been falsely implicated being the brother of the deceased. 13. The recovery memo does not bear signatures of the appellant and there is no independent witness to establish the case of the prosecution. 12. In view of the above, it is crystal clear that appellant was not present on the spot and he has been falsely implicated being the brother of the deceased. 13. In the result, appeal filed by appellant-Nihal Singh son of Shri Shibbu is allowed. The judgement and order dated 18.01.2017 passed by Court of learned Special Judge (DDA), Dholpur in Sessions Case No. 62/2009 is set aside. The appellant is acquitted for the charges levelled against him. He is in jail, he be set at liberty forthwith, if not required in any other cases. 14. Appellant is directed to forthwith furnish personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount in accordance with Section 437 A of Cr.P.C. before the Deputy Registrar (Judicial) to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months. 15. Record of the Court below be sent back forthwith.