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2019 DIGILAW 1513 (RAJ)

Shankar Lal Luhar v. State of Rajasthan

2019-05-15

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT Sabina, J. - Appellants had faced trial in FIR No. 327 dated 28.09.2008 registered at Police Station Udyog Nagar, District Kota for the offence punishable under Section 460 of Indian Penal Code, 1860 (hereinafter referred as 'IPC'). 2. Prosecution story in brief, was that during the night of 28.09.2008 at about 1/1.30 a.m., two persons entered the premises of the complainant. Complainant, his wife and children got up. The said two persons demanded from complainant whatever valuables were available with them. Wife of the complainant asked those persons as to who they were. One of the persons fired at the wife of the complainant. Complainant picked up a plastic chair and hit it against the assailants. Assailants ran towards the stairs. Akash, son of the complainant, caught hold of one of the said two persons. Akash was also inflicted a firearm injury. In the meantime, tenant Ram Narayan came there and tried to catch hold of the assailants. However, assailants fled away from the spot. 3. During investigation, appellants were arrested and their identification parade was got conducted. Akash, son of the complainant duly identified the appellants in the identification parade. Complainant duly identified appellant Shankar Lal in the identification parade. 4. After completion of investigation and necessary formalities, challan was presented against the appellants. Charges under Sections 459, 460, 302/34, 307/34 of IPC were framed against the appellants. Charge was also framed against the appellant Shankar Lal Luhar under Section 3/25 of the Arms Act, 1959 (hereinafter referred to as 'the Act'). Charge was also framed against appellant Shailendra @ Sailu under Section 4/25 of the Act. Appellants did not plead guilty to the charges framed against them and claimed trial. 5. In order to prove its case, prosecution examined twenty two witnesses. After the close of prosecution evidence, appellants when examined under section 313 Code of Criminal Procedure, 1973 prayed that they were innocent and had been falsely involved in this case. 6. Trial Court vide judgment/order dated 18.01.2018 ordered the conviction and sentence of the appellants under Sections 460, 302/34, 307/34 IPC. Appellant Shankar Lal Luhar was also convicted and sentenced under Section 3/25 of the Act, whereas, appellant Shailendra @ Sailu was convicted and sentenced qua offence punishable under Section 4/25 of the Act. Hence, the present appeal by the convicts. 7. Appellant Shankar Lal Luhar was also convicted and sentenced under Section 3/25 of the Act, whereas, appellant Shailendra @ Sailu was convicted and sentenced qua offence punishable under Section 4/25 of the Act. Hence, the present appeal by the convicts. 7. Learned counsel for the appellants has submitted that the trial Court has erred in ordering conviction and sentence of the appellants. Prosecution had failed to prove its case. Recoveries of weapons had been falsely foisted on the appellants. As per the prosecution witness, appellants had covered their faces with cloth. Hence, identification of the appellants by the victims was rendered doubtful. In-fact, appellants had also been shown to the witnesses in the police station before the identification parade was carried out. 8. Learned State counsel has opposed the appeal. 9. Present case relates to murder of Parvati and injuries suffered by injured Akash. Thus, star witness of the prosecution is injured Akash. 10. Injured Akash while appearing in the witness box as PW-1 has deposed that on the night of 28.09.2008 at about 1/1.30 a.m., he was sleeping in his house. Two persons entered their house and they had covered their faces with a hanky. One person was carrying a pistol in his hand, whereas, the other person was armed with a knife. The person who was carrying a pistol stated that valuable articles be handed over to them. All the family members got up and his father started seeking mercy from the said persons on the plea that he was a poor man. His mother said that in case valuables were not given, what could they do. Immediately, the person who was armed with a pistol fired at his mother. He ran towards the said person. His father threw a chair at them and one of the persons jumped from the stairs. He caught the feet of the said person on the stairs and he fired a shot at him. As a result, he (witness) fell down. His mother died at the spot. On hearing notice of the firearm, their tenant got up and came to the spot. He was removed to the hospital for treatment. He had participated in the identification parade and had identified the assailants on the basis of their height, eyes, body built etc. 11. As a result, he (witness) fell down. His mother died at the spot. On hearing notice of the firearm, their tenant got up and came to the spot. He was removed to the hospital for treatment. He had participated in the identification parade and had identified the assailants on the basis of their height, eyes, body built etc. 11. Complainant Sooraj Mal while appearing in the witness box as PW-2 has duly supported the prosecution case and has corroborated the statement of PW-1 12. PW-6 Barkha Suman, daughter of the complainant has corroborated the statement of PW-1 with regard to manner of occurrence. 13. PW-18 Pramod Kumar, Additional Civil Judge-cum-Magistrate has proved the identification parade of the accused conducted by him Exhibit-P-29 and Exhibit-P-30. 14. PW-20 Dr. Deepak Sharma proved the post-mortem examination report of deceased Parvati Exhibit-P-41. 15. PW-19 Dr. Rakesh Sharma proved the medico-legal-examination report of Akash Exhibit-P-39 and X-ray film report Exhbit-P-40. As per medico-legal-examination report, PW-1 had suffered two firearm injuries, i.e. one entry wound and one exit wound. 16. Police officials while appearing in the witness box have deposed with regard to the investigation conducted by them. 17. In the present case, prosecution story mainly rests on the testimony of PW-1 Akash and PW-3 Sooraj Mal. PW-1 Akash had suffered injuries in the incident and his presence at the spot cannot be doubted. The said witness had duly identified the appellants in an identification parade on the basis of their eyes, body built, height etc. PW-1 was cross-examined at length by the defence counsel, but his testimony with regard to the involvement of the appellants in the crime could not be shaken. PW-1 had no ill-will against the appellants to falsely implicate them in the crime. In-fact, statement of PW-1 being natural inspires confidence. Statement of PW-1 with regard to the manner of accident is duly corroborated by PW-3 Sooraj Mal (Complainant) and PW-6 Barkha Suman. The Magistrate has also been examined as PW-18, who had conducted the test identification parade. The said witness has duly proved the test identification parade conducted by him. 18. During investigation, pistol was recovered from appellant Shankar Lal, whereas, a knife was recovered from appellant Shailendra @ Sailu. The said recoveries have been duly proved by the police officials. The Magistrate has also been examined as PW-18, who had conducted the test identification parade. The said witness has duly proved the test identification parade conducted by him. 18. During investigation, pistol was recovered from appellant Shankar Lal, whereas, a knife was recovered from appellant Shailendra @ Sailu. The said recoveries have been duly proved by the police officials. Police officials were acting in discharge of their official duties and had no reason to falsely involve the appellants in this case. 19. As per Forensic Science Laboratory report Exhibit-P-44, cartridge case recovered from the spot had been fired from the country-made pistol recovered from appellant Shankar Lal. 20. Thus, in the present case, prosecution had been successful in proving its case against the appellants beyond the shadow of reasonable doubt. 21. In the facts and circumstances of the present case, there is no force in the arguments raised by the learned counsel for the appellants. Trial Court has, thus, rightly ordered the conviction and sentence of the appellants with regard to charges framed against them. 22. Accordingly, this appeal is dismissed. Impugned judgment/order dated 18.01.2018 passed by the Trial Court are upheld.