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2019 DIGILAW 2283 (RAJ)

Bapunath v. State of Rajasthan

2019-08-26

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT : 1. Appellants have filed this appeal challenging the judgment/order dated 30.08.2016 passed by the trial Court, whereby, they were convicted and sentenced qua offence punishable under Sections 460 and 396 of Indian Penal Code, 1860 (hereinafter referred as 'IPC') in FIR No. 491 dated 08.11.2009 registered at police station Mantown, District Sawai Madhopur under Section 460 IPC. 2. Prosecution story, in brief, is that the complainant was sleeping in his house alongwith his mother Tulsa and father Mishrilal. On the intervening night of 07/08.11.2009 at about 2.00 a.m. some persons armed with knives entered their house and attacked them, while they were sleeping. Complainant suffered injuries on his ears. Mishrilal suffered injuries on his head, eye and cheeks. Complainant as well as his father were then dragged inside the room and the room was locked. Tulsa (mother of the complainant) was still outside. Complainant and Mishrilal became unconscious. When complainant regained consciousness at about 4.00-5.00 a.m., he first took care of his father and then after breaking the door of the room came out and saw that his mother was lying dead and she had suffered injuries on her head and cheeks. Anklets and bangles worn by his mother were missing. Complainant then called Kailash Prajapat, who was residing near his house and he was informed regarding the incident. 3. After completion of investigation and necessary formalities, challan was presented against the appellants. 4. Charges were framed against the appellants under Sections 460 and 396 IPC. Appellants did not plead guilty and claimed trial. 5. Prosecution in order to prove its case examined twenty-two witnesses during trial. Appellants when examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred as 'Cr.P.C.') prayed that they were innocent and had been falsely involved in this case. Appellants did not examine any witness in their defence. 6. Trial Court vide judgment/order dated 30.08.2016 ordered the conviction and sentence of the appellants under Sections 460 and 396 IPC. Hence, the present appeal by the appellants. 7. Learned counsel for the appellants has submitted that there was no test identification parade to connect the appellants with the crime-in-question. Appellants had been falsely involved in this case on the basis of false recoveries allegedly effected at their instances. There was no material on record as to how the appellants were arrested in the present case by the Investigating Officer. Appellants had been falsely involved in this case on the basis of false recoveries allegedly effected at their instances. There was no material on record as to how the appellants were arrested in the present case by the Investigating Officer. Incident had occurred on 08.11.2009, whereas, the appellants were arrested after two months and false recoveries were foisted on them. In case, appellants had looted the ornaments worn by deceased Tulsa, they would have disposed of the said articles. Complainant Babulal was not examined, during trial. No names or description of the accused were mentioned in the FIR. 8. Learned State Counsel, has opposed the appeal. 9. In the present case, star witness of the prosecution is PW-13 Mishrilal. Mishrilal while appearing in the witness-box as PW-13 has deposed that at the time of incident, he was sleeping in the veranda of his house. His son Babulal and wife were also sleeping at that time. At about 2.00 a.m., one person came and sat on top of him. In all, they were about 5/7 persons. One person called Amita to break his head and asked Kalu to throw him in the room. The said persons attacked them with sticks. He suffered injury on his head. Then, they dragged his wife in the fields and killed her with knives and sticks. When Babulal regained consciousness, he opened the door of the room and found that his wife was lying dead. His wife had suffered knife injury on her neck and had also suffered injuries on her cheeks. Silver anklets, bangles, earrings, nose ring and sliver clip worn by his wife were missing. He had kept Rs. 50,000/- in a tin and the same were also missing. On information received from his son, 10-20 persons came to the spot. Thereafter, police reached the spot. They had identified the ornaments recovered, during investigation. 10. Thus, from the statement of PW-13, it is evident that no test identification parade of accused was got conducted. The said witness also failed to identify the accused even in the Court. Complainant-Babulal was not examined, during trial. 11. PW-14 Ashok Kumar is the Investigating Officer of the case. The said witness deposed that on 08.11.2009 at about 6.15 a.m., he had received information that dacoity had been committed near Hanuman Temple and a lady had been murdered. He reached the spot and injured were removed to the hospital. Complainant-Babulal was not examined, during trial. 11. PW-14 Ashok Kumar is the Investigating Officer of the case. The said witness deposed that on 08.11.2009 at about 6.15 a.m., he had received information that dacoity had been committed near Hanuman Temple and a lady had been murdered. He reached the spot and injured were removed to the hospital. Site plan was prepared. Articles from the spot i.e., sticks etc. were taken in possession. He further deposed that the accused had committed similar kind of crimes in the State of Rajasthan and they were arrested on the basis of production warrants from 07.01.2010 onwards. Thereafter, the alleged jewellery articles were recovered on the basis of the disclosure statements suffered by the appellants. However, from the statement of this witness, it does not transpire as to on what basis appellants were arrested on the basis of production warrants. 12. PW-13 has not even identified the appellants, during trial. In the FIR, names of the accused are not mentioned nor their description is mentioned. FIR was registered on 08.11.2009, whereas, the statement of PW-13 Mishrilal was recorded on 14.11.2009 under Section 161 Cr.P.C., wherein, he stated that one of the person had said that Amita break the head of this person. One of the person said to Kalu to throw him in the room. In case, PW-13 had heard the names of appellants Amita and Kalu, the same should have been incorporated in the FIR, because from the statement of PW-13, it can not be said that he had remained unconscious from the date of incident till the recording of his statement or the FIR. This, witness has deposed that when his son had opened the door of the room, he had gone out and seen that his wife was lying dead. Thus, PW-13 Mishrilal was conscious, at the time of lodging of the FIR by his son. He could have disclosed the names of accused heard by him to his son. 13. This, witness has deposed that when his son had opened the door of the room, he had gone out and seen that his wife was lying dead. Thus, PW-13 Mishrilal was conscious, at the time of lodging of the FIR by his son. He could have disclosed the names of accused heard by him to his son. 13. Since, in the present case, there is no test identification parade of the accused to establish their involvement in the crime as well as there is nothing on record as to how the involvement of the appellants in the present case transpired during investigation, it would not be safe to base the conviction of the appellants on the basis of the recoveries allegedly effected from them after more than two months of the incident. In normal circumstances, accused would have disposed of the stolen silver ornaments after committing the crime and would not have kept the said articles with them. 14. Keeping in view the facts and circumstances of the case, we are of the opinion that the recovery of the articles alleged to be effected from the appellants is rendered doubtful. Hence, appellants are liable to be acquitted of the charges framed against them by giving them benefit of doubt. 15. Accordingly, this appeal is allowed. Impugned judgment/order of the trial court dated 30.08.2016 are set aside. Appellants are acquitted of the charges framed against them. Appellants, who are in jail, be set at liberty forthwith, if not required in any other case. 16. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellants are directed to furnish a personal bond in the sum of Rs. 25,000/- each, and a surety in the like amount, before the Registrar(Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Supreme Court.