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2018 DIGILAW 599 (RAJ)

State of Rajasthan v. Balwan Singh

2018-02-20

SANGEET LODHA, VIRENDRA KUMAR MATHUR

body2018
JUDGMENT Sangeet Lodha, J. - Heard learned Public Prosecutor and learned counsel appearing for the respondents. Carefully perused the record. 2. This leave to appeal u/s. 378 Cr.P.C. has been preferred by the State, aggrieved by the judgment and order dated 3.9.16 passed by the Sessions Judge, Churu, in Sessions Case No.14/13, acquitting the accused-respondents Balwan Singh, Pawan Kumar and Vipin Kumar of the charges for offences under Sections 302 or 302/149, 120 B IPC and Raman @ Ramal @ Ramla of the charge for offence under Section 302/120B IPC. 3. Succinctly stated, the prosecution case emerging from the record is that complainant Vijendra Singh submitted a written report (Ex. P/20) on 6.2.09 at 8.00 PM before the Station House Officer, Police Station, Rajgarh, District Churu to the effect that on 6.2.09 at about 4.00 PM, he along with his cousin brother Virendra Singh reached Sheetla market, where Virendra Singh went to the barber shop while saying Gyansingh who was driving the vehicle to come after taking turn. The complainant was sitting on the rear seat of the vehicle. Gyan Singh took turn of vehicle from the road near Maszid, they saw that when Virendra reached the Sheetla Chowk from the Barber shop, two boys came on Red coloured Hero Honda motorcycle of HR number and fired a shot on the back of Virendra, thereby Virendra fell down, then second boy fired the shot underneath his ear and third bullet was fired on the head of Virendra. Both the complainant and Gyan Singh dismounted from the vehicle, then both the boys fled away towards Nehru Bal Mandir School leaving the motorcycle on the spot, in the street, one boy boarded in the stationary without numbered Bolero vehicle wherein 5-6 persons were already boarded, second boy ran away in the said street afoot. The shoes of one boy remained on the spot. The empty cartridges were lying on the spot. Thereafter, Virendra was taken to the hospital by them. Certain allegations regarding political rivalry between deceased Virendra and Ram Singh, Member of Parliament, were also levelled. Upon the said report, a first information report being No.43/09 (Ex.P/21) was registered for the offences under Section 302, 147, 148, 149 and 120 B IPC and Section 27 of the Arms Act and investigation commenced. Certain allegations regarding political rivalry between deceased Virendra and Ram Singh, Member of Parliament, were also levelled. Upon the said report, a first information report being No.43/09 (Ex.P/21) was registered for the offences under Section 302, 147, 148, 149 and 120 B IPC and Section 27 of the Arms Act and investigation commenced. After investigation, police filed charge sheet against accused Shyam Sunder, Satpal, Balwan, Pawan and Vipin for the offences under Section 302/34 and 120B IPC and Section 3/25 of the Arms Act and against accused Ram @ Ramla, a supplementary ( Titamba) charge sheet for offences under Section 302, 143 and 120B was filed. 4. The trial court framed the charges against the accused persons Shyam Sunder @ Sundariya @ Sumendra and Satpal @ Pali for the offence under Section 302 or 302/149 and 120B IPC and Section 3/25 of the Arms Act. Against accused respondents namely Balwan, Vipin and Pawan Kumar, charges for the offence under Section 302 or 302/149 and 120B IPC were framed. The accused persons denied the charges and claimed trial. The charges against accused respondent Raman @ Ramla were framed on the supplementary (Titamba) charge sheet separately after recording of the statements of 12 witnesses for the offence under Section 302/120B IPC. The accused respondent denied the charges and claimed trial. Since the accused respondent Raman @ Ramla did not want to cross-examine the witnesses already examined, therefore, appropriate order in this regard was passed by the trial court on 1.6.15. 5. The prosecution produced and examined 43 witnesses (PW-1 to PW-43) and tendered the documentary evidence. The statements of the accused persons were recorded under Section 313 Cr.P.C. wherein they alleged that the testimony of the prosecution witnesses is false. Regarding identification parade, accused Shyam Sunder and Satpal alleged that they were already shown to the witnesses Gyansingh, Nefusingh, Naresh and Vijendra by the Additional Superintendent of Police in the Police Station Rajaldesar, Rajgarh and C.O. Office, Churu and further took the stand that murder of Virendra was caused due to political rivalry, thereby in whole of Rajasthan, the people of Rajput community destructed the shops and buses and set the same on fire, police station Rajgarh was surrounded and in the first information lodged, the present M.R Ramsingh and M.L.A. Kamla were named. The Collector, Superintendent of Police and entire police force was deputed there and there was endanger of dispute and therefore, to diminish the endanger of dispute and bring peace, bogus witnesses have been created and they have been made the accused. Accused respondent Raman @ Ramla took the stand that PW-35 Rajesh Kumar Sharma had falsely deposed regarding accused Shyam Sunder and Pawan taking China made pistol from him and he has been implicated falsely in the matter. Accused respondent Balwan alleged that there were lot of enemies of the deceased, someone out of them might have killed him and upon not finding the real culprit, he has been made accused. He further stated that in the first information report, Mahesh Fagedia, the brother of the accused was also named. It was alleged by him that he along with Pawan and Vipin took loan from Mahendra Kumar Gadhwal but assuming the documentation made in this regard as the money taken for murder (supari), he has been entangled in the case. Accused respondent Pawan Kumar took the stand that he said his brother Vipin to bring Rs. 1 lac for purchasing bus from Balwan and he appended his signature on the documentation prepared in this regard i.e. letterhead which has been made basis for implicating him and his brother Vipin in the crime. He further deposed that he has been falsely implicated by incorrectly recording that he hided the accused Satpal and went with accused Shyam Sunder at the residence of Raman Jat to get a pistol. Accused respondent Vipin stated that he borrowed Rs. 1 lac from Balwan for purchasing bus. Since a case was registered against Virendra Singh for murder of Balwan's brother Sumer Fagediya, Balwan has been made accused falsely. In defence, the accused respondents produced as many as 4 witnesses (DW-1 to DW-4) and accused respondent Pawan Kumar also got himself examined as DW-5. 6. The learned trial court after due consideration of the evidence produced on record arrived at the conclusion that the prosecution has failed to prove case against the accused respondents. The presence of the accused respondents at the place of occurrence, is not established, and it is not proved that a unlawful assembly was constituted by them to commit crime and in furtherance of the object of such unlawful assembly, they indulged in firing. The presence of the accused respondents at the place of occurrence, is not established, and it is not proved that a unlawful assembly was constituted by them to commit crime and in furtherance of the object of such unlawful assembly, they indulged in firing. Accordingly, the accused respondents have been acquitted of the charges as noticed above. Hence this leave to appeal. 7. In the instant case, the State preferred an application (APPLR No.248/17) seeking deletion of the names of the accused Shyam Sunder @ Sundariya @ Samundra and Satpal, who have been convicted for offence under Section 302 IPC and Section 3/25 of the Arms Act, but acquitted for the charge under Section 120B IPC. The application was allowed vide order dated 22.1.18 and the names of the co-accused Shyam Sunder and Satpal were directed to be deleted as prayed for, and amended cause title was also taken on record. Thus, acquittal of the accused Shyam Sunder and Satpal by the trial court of the charge under Section 120B IPC is not challenged by the State. 8. Learned Public Prosecutor contended that the learned trial court has fell in error in acquitting the accused respondents of the charges levelled ignoring the material evidence available on record denoting their guilt. It is argued that on the basis of the evidence on record, it is established beyond doubt that a conspiracy was hatched by the accused respondents and as a result thereof, the crime of murder was committed. It is submitted that from the material available on record i.e. Information Ex.P/74 furnished by accused Shyam Sunder which is admissible under Section 27 of the Evidence Act and Identification memo Ex.P/75, it is clearly substantiated that accused respondent Raman assisted in arranging the China made pistol and cartridges which were used in causing murder. Thus, the trial court has failed to appreciate the evidence produced by the prosecution both oral as well as documentary in correct perspective which resulted in erroneous finding being arrived at. 9. Learned counsel appearing for the accused respondents vehemently contended that the learned trial court after proper appreciation and evaluating the evidence available on record both ocular as well as documentary has arrived at a just conclusion in acquitting the respondents from the charges levelled. 9. Learned counsel appearing for the accused respondents vehemently contended that the learned trial court after proper appreciation and evaluating the evidence available on record both ocular as well as documentary has arrived at a just conclusion in acquitting the respondents from the charges levelled. It is submitted that the prosecution has failed to prove that the accused respondents were present at the place of occurrence and were party to the criminal conspiracy designed in causing murder of the deceased. It is further argued that the call details produced were not accompanied by the necessary certificate as required under the provisions of Section 65 (B) (4) of the Evidence Act and therefore, they were not admissible in evidence. So far as accused respondent Raman @ Ramla is concerned, he has been implicated in the case on the information furnished by the accused Shyam Sunder and identification of the house, however, on the information furnished no recovery was made only identification of the house was made, thereby it is not admissible in evidence under Section 27 of the Act, further, to prove the memos, no other independent witness was produced. The owner of the house was also not produced nor the rent agreement was produced certifying that accused Ramal @ Ramla was residing in the house identified by accused Shyam Sunder. In this view of the matter, learned counsel submitted that the findings arrived at by the learned trial court do not require any interference by this Court and deserve to be affirmed. 10. We have considered the rival submissions advanced on behalf of the learned counsel appearing for the parties. 11. In the instant case, learned trial court after proper appreciation of the evidence produced on record found that from the deposition of the eye witnesses PW-2 Gyan Singh and PW-6 Vijendra Singh, it is crystal clear that the accused persons Shyam Sunder and Satpal have caused the murder of deceased Virendra by firing the pistol from a close distance. The eye witnesses PW-2 and PW-6 have identified the accused persons in the test identification parade except that PW-6 Vijendra Singh could not identify the accused Satpal, however, PW-2 Nefusingh and PW-4 Naresh Singh who have seen the accused persons running from the place of occurrence, have also identified the accused persons and the said identification proceedings were duly proved by their statements recorded. The pistols used in the occurrence were recovered at the instance of both the accused persons on the information furnished by them under Section 27 of the Evidence Act. The pistols recovered were capable of firing and it has also proved that the shots were fired from the pistols. The damaged cartridge which was found in the head of the deceased and the empty cartridge found on the spot were found to be of the pistols fired by Shyam Sunder. It was also found that from the evidence adduced, it is also clear that the motorcycle recovered from the place of occurrence was also of accused Satpal. Accordingly, learned trial court found that the prosecution has proved its case as against the accused persons Shyam Sunder and Satpal for the offences under Section 302 IPC & 3/25 of the Arms Act and convicted and sentenced them to undergo life imprisonment with fine of Rs. 2000/- and to undergo one year's simple imprisonment with fine of Rs.2000/- in default, to further undergo one month's S.I. respectively. However, the trial court acquitted both the accused for the charge under Section 120B IPC. 12. The accused respondents Balwan, Pawan and Vipin were implicated in the matter on the basis that before the incident, the accused respondents were having conversation with the accused Shyam Sunder and Satpal over mobile and there was mention of rivalry between accused Balwan with the deceased in the first information report. Apart from that it was alleged that the these accused persons knitted a criminal conspiracy with Shyam Sunder and Satpal by giving Rs. 1 lac as money for causing murder of the deceased to them. The said money was given by Balwan through Document Ex.P/48 to Vipin the brother of Pawan. The case of the prosecution is that the accused Balwan gave Rs. 1 lac to other two accused respondents Vipin and Pawan for giving it to accused persons Shyam Sunder and Satpal for causing the murder of deceased and the document reduced in writing in this regard is the Ex.P/48. 13. The case of the prosecution is that the accused Balwan gave Rs. 1 lac to other two accused respondents Vipin and Pawan for giving it to accused persons Shyam Sunder and Satpal for causing the murder of deceased and the document reduced in writing in this regard is the Ex.P/48. 13. The accused respondents took the stand that the said money was taken by accused Balwan from his friend Mahendra Kumar for giving it to Vipin, as Vipin and Pawan Kumar wanted to purchase a bus and for that purpose they required money, and upon giving the money accused Pawan purchased the bus, however, the document reduced in writing in this regard by them has wrongly been treated to be a document giving the money to cause murder of the deceased. 14. In defence, DW-1 Ramswaroop was produced, who deposed that on 3.1.09 he sold bus No. 18 PA 0759 Modal 2006 to Pawan Kumar for a consideration of Rs. 7,65,000/- out of which Rs. 5 lac was given by Pawan to him and remaining Rs. 1,10,000/- were paid on 5.2.09. The bus was taken on finance and finance money Rs.1,31,000/- was given by Pawan Kumar. He further deposed that in July, NOC was issued and a document Ex.D/2 was executed between them which was duly notarized and bears his signature. The said document was got reduced in writing by Pawan and Subhram, father of Vipin. He also admitted in cross-examination that earlier he was not knowing accused Pawan and Vipin. DW-3 Mahendra Kumar, was produced, who deposed that accused Balwan came to him and said that his relative Vipin needed money as he wanted to purchase a bus. On 1.1.09, he called Vipin, however, since the witness was knowing Balwan, he handed over the said money to Balwan and Balwan in turn has given the same to Vipin. In cross-examination, the witness deposed that no document was executed regarding lending of the money by him. The witness further deposed that on 1.1.09 he withdrew Rs. 70,000/- from his account and Rs. 30,000/- were given from his pocket. DW-4 Subhram, who is father of accused Pawan and Vipin, deposed that he and accused Pawan purchased bus from Ram Swaroop in January, 2009 for a consideration of Rs. 7,65000/- out of which Rs. 5,00,000/- was paid on 3.1.09 and Rs. 70,000/- from his account and Rs. 30,000/- were given from his pocket. DW-4 Subhram, who is father of accused Pawan and Vipin, deposed that he and accused Pawan purchased bus from Ram Swaroop in January, 2009 for a consideration of Rs. 7,65000/- out of which Rs. 5,00,000/- was paid on 3.1.09 and Rs. 1 lac was given on 5.2.09 and thereafter the installments were paid from time to time. The bus was taken in possession on 3.1.09. Accused Pawan paid said Rs. 5 lacs and brought the bus. In July 2009, loan installments were completed and then Ex.D/2 was executed which bears his signature. He further deposed that he has a bank account in Rajasthan Gramin Bank. In the pass book (Ex.D/3) there is an entry of withdrawal of Rs. 1,16,000/- on 4.2.09 which were to be paid to Ramswaroop as outstanding money for bus. On 3.1.09, he managed Rs. 4 lac out of his own sources and Rs. 1 lac was borrowed by accused Vipin from accused Balwan. In crossexamination also, the witness deposed that on 3.1.09, Rs. 5 lac were given, out of which, Rs. 4 lac was arranged out of his own source by sale of crops. It was deposed that he took loan from the Bank which was deposited in his bank account on 4.2.09 and he withdrew the same on the same date, however, he did not possess the receipt thereof. He further deposed that bus was in the name of Ramswaroop, which was got registered in the name of Suresh as Pawan was in Jail and Suresh had sold the bus. Accused Pawan Kumar also got examined himself as DW-5 and deposed that on 3.1.09, Bus No. RJ 18 CA 0759 was purchased from Ram Swaroop, for which on 3.1.09, Ram Swaroop was paid Rs. 5 lac and Raswaroop given the possession of the bus and the documents to the witness and after withdrawing his permit on 13.1.09 NOC was given to the witness. He further deposed that permit Ex.D/8 'Chidawa National Highway via Pilani' 65 kilometers is issued in his name from Sikar, the copy of the verification done by RTO Office is placed on record which is Ex.D/8 in which the photo of the witness is affixed at place "x". He further deposed that for purchasing the bus he borrowed Rs. 1 Lac from accused Balwan on 1.1.09. He further deposed that for purchasing the bus he borrowed Rs. 1 Lac from accused Balwan on 1.1.09. It was further deposed that Registration Certificate issued in the name of Ramswaroop was not placed on record. The documents including the RC were handed over to the witness. He admitted that NOC executed by Ram Swaroop and receipt of the withdrawal of permit by him, were not produced on record. 15. A perusal of the Pass Book (Ex.D/3) of Subhram, father of the accused persons Pawan and Vipin, it clearly reveals that there is entry of withdrawal of Rs. 1,16,000/- on 4.2.09 by the subscriber, which fortifies the deposition of the defence witnesses and the stand taken in defence regarding payment of money to Ram Swaroop in lieu of purchase of bus. The affidavit of Ram Swaroop (Ex.D/2) dated 28.7.09 duly attested by Notary Public is also placed on record, a perusal whereof reflects about sale of the bus No. RJ 18 PA 0759 on 3.1.09 to accused Pawan Kumar, receipt of Rs. 5 lac on 3.1.09 and Rs. 1,10,000/- on 5.2.09 from accused Pawan Kumar, it also mentions about transfer of the permit in the name of accused Pawan and handing over the documents to him. From the permit (Ex.D/8) duly certified by the Secretary, Regional Transport Authority, Sikar, it is clear that it was issued in the name of accused Pawan Kumar from 3.2.09 to 2.2.14, where as the incident is of 6.2.09. From perusal of the document (Ex.P/48), it is also clear that accused Balwan lended Rs. 1 lac to accused Vipin, but it does not disclose that the said money was given for causing murder. As regards the call details produced by the prosecution for proving the conspiracy, from perusal of the call details Ex. P/59, Ex.P/60, Ex.P-97 to Ex. P-107, it is clear that the same are neither signed by the competent authority nor accompanied by the certificate issued by the said authority of the telecom company which is mandatory in view of the provisions of Section 65B(4) of the Evidence Act as laid down by Hon'ble Supreme Court. It has also not come on record that what was the conversation between the callers. It has also not come on record that what was the conversation between the callers. Thus, in absence of any cogent evidence on record, acquittal of the accused respondents Balwan Singh, Pawan Kumar and Vipin Kumar by the trial Court for the offences charged does not require interference by this Court. 16. Accused respondent No.4 Raman @ Ramla has been implicated as accused in the case on the information furnished by the accused Shyam Sunder and identification of the house of Raman @ Ramla where he was residing. On the information furnished by the accused Shyam Sunder, no recovery was made, only identification of the house was made, therefore, it is not admissible in evidence under Section 27 of the Act. Further, to prove the memos, no other independent witness was produced for examination. The owner of the house was also not produced for examination nor any rent agreement or other evidence were produced certifying that accused Ramal @ Ramla was residing in the house identified by accused Shyam Sunder. Thus, in absence of any cogent evidence on record, acquittal of the accused Raman by the trial Court also does not warrant interference by this Court. 17. In view of the discussion above, no case for grant of leave to appeal is made out. 18. The criminal leave to appeal is therefore, rejected.