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2019 DIGILAW 2370 (RAJ)

Lara v. State of Rajasthan

2019-09-04

INDERJEET SINGH, SABINA

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JUDGMENT : Sabina, J. 1. Appellant has filed this appeal challenging the judgment/order dated 05.03.2016 passed by the trial Court, whereby, appellant was convicted and sentenced qua offence punishable under Sections 302 and 364 of Indian Penal Code, 1860 (hereinafter referred as 'IPC'). 2. Prosecution case was set in motion on the basis of the report (Exhibit-P-3) lodged by complainant Bhaurulal. On the basis of the report lodged by the complainant, formal FIR No. 411 dated 16.07.2010 was registered at Police Station Bari District Dholpur under Section 365 IPC. 3. As per the FIR, prosecution story, in brief, is that on 15.07.2010 at about 9.00 a.m., Bhagwanswaroop (son of the complainant) had been abducted by Mauhar Singh, Rameshwar and Lara from his house. Accused had come on two motorcycles and had abducted Bhagwanswaroop. The abduction of Bhagwanswaroop was witnessed by his wife Umedi Devi and Shanti Devi. At about 9.30 a.m., complainant had received a phone call from his son that he had been abducted by the miscreants and his life was in danger. At about 10.30 a.m., complainant again received a phone call from his son and was informed that presently, he was in Kasoti Kheda. Phone number of the complainant was 9468681784 and the phone number of Bhagwanswaroop was 9929648953. Complainant had been trying to contact his son thereafter, but had been unable to do so. Son of the complainant was missing. 4. After completion of investigation and necessary formalities, challan was presented against appellant Lara and his co-accused Bhole and Hariom. 5. Charges were framed against the accused under Sections 364, 365, 302, 302/34 IPC. Accused did not plead guilty and claimed trial. 6. In order to prove its case, prosecution examined nine witnesses during trial. Accused when examined u/Sec. 313 Cr.P.C., after the close of prosecution evidence, prayed that they were innocent and had been falsely involved in this case. Accused did not examine any witness in their defence. 7. Trial Court vide judgment/order dated 05.03.2016 ordered the conviction and sentence of the appellant under Sections 302 and 364 IPC. Accused Bhole and Hariom were acquitted of the charges framed against them. Hence, the present appeal by the appellant. 8. Learned counsel for the appellant has submitted that prosecution had miserably failed to prove its case against the appellant. PW-5 Shanti has not supported the prosecution case, during trial. Accused Bhole and Hariom were acquitted of the charges framed against them. Hence, the present appeal by the appellant. 8. Learned counsel for the appellant has submitted that prosecution had miserably failed to prove its case against the appellant. PW-5 Shanti has not supported the prosecution case, during trial. Hence, the statement of PW-6 Kumeri Devi was liable to be disbelieved. PW-6 has stated in her cross-examination that her statement was not recorded by the police. Prosecution witness Umedi Devi was not examined, during trial. Call details have not been proved on record by the prosecution. So far as the complainant and his wife PW-4 are concerned, they had stated in their statements under Section 161 Cr.P.C. that they had been told by their son Bhagwanswaroop that he had escaped from Ramsagar Dam to Kasoti Kheda and was safe and sound and they should not worry about him. The said statements were duly confronted to the witnesses in their cross-examination and PW-5 has admitted the correctness of the said statement. Even in the FIR, it has been mentioned that initially, Bhagwanswaroop was present at Ramsagar Dam and later, he had informed that he had reached Kasoti Kheda. Hence, offence under Section 302 IPC was not established in the present case. Learned counsel has further submitted that the weapon recovered from the appellant was Exhibit-P10 was not sent to the expert for its examination. Challan had not been filed against accused Mohar Singh and Rameshwar, who were named in the FIR as co-abductors of the appellant. 9. Learned State counsel, has opposed the appeal and has submitted that as per the prosecution witnesses, Bhagwanswaroop had been abducted by the appellant and his co-accused and thereafter, dead body of Bhagwanswaroop was not recovered which leads to the inference that he had been murdered by the accused. 10. FIR had been lodged by the complainant with regard to abduction of his son Bhagwanswaroop. Initially, FIR was lodged under Section 365 IPC. Later other offences were added in the FIR as the dead body of Bhagwanswaroop was not recovered and the witnesses stated during investigation that the accused had murdered Bhagwanswaroop. 11. So far as the offence of abduction is concerned, prosecution case rests on the testimony of PW-5 Shanti and PW-6 Kumeri Devi because as per the prosecution case, Bhagwanswaroop had been abducted by the accused in their presence. 12. 11. So far as the offence of abduction is concerned, prosecution case rests on the testimony of PW-5 Shanti and PW-6 Kumeri Devi because as per the prosecution case, Bhagwanswaroop had been abducted by the accused in their presence. 12. PW-5 Shanti has deposed that about four years ago at about 9 O'clock, her brother-in-law Bhagwanswaroop was giving her medicine. Rameshwar, Mohar Singh and Lara came there and forcibly dragged away Bhagwanswaroop. Her brother-in-law had been murdered by Rameshwar, Mohar Singh, and Lara. The said persons were armed with guns. Dead body of her brother-in-law had not been recovered. In her cross-examination, she deposed that she was sleeping on the cot, in front of the room. She had not made any statement before the police. Her brother-in-law had been caught by Mohar Singh and Rameshwar. They had forcibly dragged Bhagwanswaroop. The said fact had not been disclosed by her to the police. The fact that Rameshwar, Mohar Singh and Lara had murdered her brother-in-law was also not disclosed by her in her police statement. She had also not told the police that Mohar Singh was armed with gun. She had also not told the police that Lara was standing outside in the Chowk. Bhagwanswaroop had not been murdered in her presence. Bhagwanswaroop had been murdered on the same day when he had been abducted from the house. She had been told by her father-in-law and mother-in-law that Bhagwanswaroop had been murdered but she had not told the said fact to the police. Thus, So far as PW-5 is concerned, she did not support the prosecution case in her cross-examination. PW-6 Kumeri Devi deposed that about four years ago at about 9.00 a.m., she was present in her house. Her elder sister Shanti had suffered fracture of her foot and was lying on the cot. Bhagwanswaroop was giving medicine to her elder sister. Mohar Singh, Rameshwar and Lara came to the spot armed with guns and pistols. They were also accompanied by Bhole and Hariom. The said persons abducted her brother-in-law Bhagwanswaroop and murdered him in the jungle and hid his dead body. In her cross-examination, she deposed that her statement was not recorded by the police. She stated that she had not disclosed the name of Bhole and Hariom to the police. Mohar Singh, Rameshwar and Lara had abducted Bhagwanswaroop. 13. The said persons abducted her brother-in-law Bhagwanswaroop and murdered him in the jungle and hid his dead body. In her cross-examination, she deposed that her statement was not recorded by the police. She stated that she had not disclosed the name of Bhole and Hariom to the police. Mohar Singh, Rameshwar and Lara had abducted Bhagwanswaroop. 13. Thus, PW-6 supported the prosecution case with regard to abduction of Bhagwanswaroop by appellant Lara but did not support the prosecution case with regard to abduction of Bhagwanswaroop by accused Bhole and Hariom. PW-6 was duly cross-examined by the learned defence counsel but so far as the involvement of appellant Lara with regard to abduction of Bhagwanswaroop is concerned, her testimony in this regard could not be shaken. Statement of PW-6 being natural inspires confidence. 14. Although, PW-6 has stated that her statement was not recorded by the police but her statement was recorded under Section 161 Cr.P.C. i.e., Exhibit-D-3 on 24.07.2010 and Exhibit-D-4 recorded on 02.05.2011 Exhibit-D3 and Exhibit-D4 were got exhibited by the defence. Hence, the argument of learned counsel for the appellant that weightage be given to the part of the cross-examination of PW-6, wherein, she has stated that her statement was not recorded by the police, is without any force and is rejected. 15. Thus, the learned trial Court had rightly ordered the conviction and sentence of the appellant under Section 364 IPC. 16. The next question that requires consideration is as to whether the prosecution had been successful in establishing the charge framed against the appellant under Section 302 IPC. There is force in the argument raised by the learned counsel for the appellant that the charge framed against the appellant under Section 302 IPC was not established in view of the statements of PW-3 Bhaurulal and PW-4 Niroti Devi. 17. As per the FIR, Bhagwanswaroop was present at Ramsagar Dam at about 9.30 a.m., as disclosed to the complainant by him. At about 10.30 a.m., as per the FIR, complainant again received a phone call from his son telling him that he was present at Kasoti Kheda. Exhibit-D-2 is the statement of the complainant recorded under Section 161 Cr.P.C. on 24.07.2010. At about 10.30 a.m., as per the FIR, complainant again received a phone call from his son telling him that he was present at Kasoti Kheda. Exhibit-D-2 is the statement of the complainant recorded under Section 161 Cr.P.C. on 24.07.2010. A perusal of the same reveals that it had been stated by the complainant that his son had informed him initially, that he had been taken to Ramsagar Dam by the accused and there was danger to his life and he was making efforts to escape. Thereafter, he again received a phone call after 40-45 minutes from his son that he had managed to escape from Ramsagar Dam and had reached near Kasoti Kheda and now, he was at a safe place and there was no need to worry about him. The said part of the statement of the complainant was confronted to him during his cross-examination when he appeared in the witness box as PW-3. However, complainant denied that he had made any such statement to the police. 18. PW-4 Niroti Devi has stated in her statement under Section 161 Cr.P.C. Exhibit D-1, that her son had made the second phone call after 40-45 minutes, and he had stated that he had escaped from Ramsagar Dam and had reached Kasoti Kheda. He further stated that now, he had reached a safe place. The said portion marked as A to B in Exhibit-D-1 was duly confronted to PW-4 in her cross-examination and she admitted that the said portion of her statement was correct. 19. Thus, from the testimony of PW-4 it transpires that, although, Bhagwanswaroop had been abducted by the appellant and others and had been taken to Ramsagar Dam but Bhagwanswaroop had managed to escape and had reached Kasoti Kheda. Although, PW-3 has denied the portion marked as 'A to B' of his statement Exhibit D-2 but similar statement recorded in Exhibit-D-1 has been admitted by PW-4 Niroti Devi, who is none other than the mother of the deceased. Thus, it can be said that PW-3 complainant as well as his wife PW-4 were together, when they had received the phone call from Bhagwanswaroop regarding his whereabouts. Hence, there is no reason to disbelieve the part of the statement marked as 'A to B' in Exhibit-D-2 of the complainant recorded by the police in view of admission of PW-4. 20. Hence, there is no reason to disbelieve the part of the statement marked as 'A to B' in Exhibit-D-2 of the complainant recorded by the police in view of admission of PW-4. 20. Thus, from the statement of the complainant as well as his wife it stands established that Bhagwanswaroop had managed to escape from the clutches of the abductors and had reached a safe place i.e., Kasoti Kheda from Ramsagar Dam. Hence, the case of the prosecution is rendered doubtful with regard to charge framed against the appellant under Section 302 IPC. Presumption cannot be raised that Bhagwanswaroop must have been murdered by the appellant after he was abducted by him because the deceased had managed to escape from the clutches of the abductors. Hence, the conviction and sentence of the appellant with regard to offence punishable under Section 302 IPC is liable to be set aside. 21. Accordingly, this appeal is partly allowed. Conviction and Sentence of the appellant as ordered by the trial Court vide judgment/order dated 05.03.2016 under Section 302 IPC are set aside. Conviction and sentence of the appellant as ordered by the trial Court vide the said judgment/order under Section 364 IPC are maintained.