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2019 DIGILAW 2257 (RAJ)

Mukesh v. State of Rajasthan

2019-08-21

ABHAY CHATURVEDI, SANDEEP MEHTA

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JUDGMENT : Sandeep Mehta, J. 1. The instant appeal under Section 374(2) Cr.P.C. arises out of an incident dated 28.09.2006, in which Mohd. Hussain, a taxi driver, was murdered near the Meja Dam, District Bhilwara. The Investigating Officer investigated the matter and filed two separate charge-sheets because accused Surendra Kumar and Smt. Usha Joshi, were arrested earlier, whereas, the accused Mukesh, the appellant herein, was absconding and was arrested later on in the month of August 2008. The trials of Surendra Kumar and Smt. Usha Joshi were held jointly, whereas, the case of the accused Mukesh @ Sonu, who was arrested later, was tried separately. 2. The Sessions Case No. 9/2007 registered against the accused appellants Surendra Kumar and Smt. Usha Joshi was decided vide judgment dated 17.04.2008, whereas the Sessions Case No. 49/2008 registered against the appellant herein was decided by the learned Additional Sessions Judge (Fast Track) No. 1, Bhilwara vide judgment dated 05.01.2010, whereby he has been convicted and sentenced as below:- Offence for Which convicted Sentence awarded Section 302/34 IPC Life term imprisonment alongwith a fine of Rs. 10,000/- and in default of payment of fine, further to undergo six months' rigorous imprisonment Section 201 IPC Five years' rigorous imprisonment alongwith a fine of Rs. 3,000/- and in default of payment of fine, further to undergo three months' rigorous imprisonment The substantive sentences were ordered to run concurrently. 3. The appeals preferred by accused Surendra Kumar and Smt. Usha Joshi [D.B. Criminal Appeal No. 398/2008 and D.B. Criminal Appeal No. 639/2009] have been decided of by us today. The evidence, which was led against the appellant Mukesh @ Sonu, is exactly identical. The incident took place on 28.09.2006 and the appellant herein was arrested in August 2008, i.e. after delay of about 2 years. The Investigating Officer claimed in his evidence that an identity card (Article-3) of the deceased was recovered at the instance of the accused appellant, which connects him with the offence in question. 4. The star prosecution witness Rafique did not identify the accused in the test identification proceedings. No other witness was made to identify the accused by conducting test identification parade. Otherwise also, we have concluded in the judgment passed in the connected appeals that only accused Surendra Kumar is responsible for the murder of Mohd. 4. The star prosecution witness Rafique did not identify the accused in the test identification proceedings. No other witness was made to identify the accused by conducting test identification parade. Otherwise also, we have concluded in the judgment passed in the connected appeals that only accused Surendra Kumar is responsible for the murder of Mohd. Hussain because the prosecution failed to lead any evidence regarding the co-accused having the common intention to murder the taxi driver. 5. That apart, we find a fatal defect in the procedure adopted by the trial court inasmuch as, it did not record the statements of numerous witnesses during the trial of the present appellant and rather read in evidence the previously recorded statements of those witnesses after recording concession of the defence counsel. We are of the firm opinion that as per Section 273 Cr.P.C., the evidence of the prosecution witnesses has to be recorded in presence of the accused and the previously recorded statements, either in the same trial or a separate trial, cannot be read in evidence even if the defence counsel to this effect. 6. In view of the above discussion, we are of the firm opinion that the conviction of the appellant herein as recorded by the trial court vide the impugned judgment cannot be sustained. Thus, the appeal deserves to be and is hereby allowed. The impugned judgment dated 05.01.2010 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Bhilwara in Sessions Case No. 49/2008 is quashed and set aside qua her. He is acquitted of all the charges. He is on bail. His bail bonds are discharged. However, keeping in view the provisions of Section 437-A Cr.P.C., the acquitted accused appellant is directed to furnish a personal bond in the sum of Rs. 40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court. 7. A certified copy of the judgment passed in D.B. Criminal Appeal Nos. 398/2008 and 639/2009 shall form a part of this judgment.