Research › Search › Judgment

Rajasthan High Court · body

2020 DIGILAW 564 (RAJ)

Nagaram v. State of Rajasthan

2020-07-07

SANDEEP MEHTA

body2020
JUDGMENT 1. The appellants herein have preferred the instant appeal under Section 374(2) Cr.P.C. being aggrieved of the judgment dated 28.04.1995 passed by the learned Additional Sessions Judge, Barmer in Sessions Case No.42/1994 whereby, they were convicted and sentenced as below:- Convicted for offences under Sections Sentences 392/34 I.P.C. Seven years S.I. with a fine of Rs.5000/- 327/34 I.P.C. Seven years S.I. with a fine of Rs.5000/- 436/34 I.P.C. Seven years S.I. with a fine of Rs.5000/- All the sentences were ordered to run concurrently. 2. The appeal was preferred by four accused including Ambaram, who passed away during the pendency of the appeal and hence, the appeal has abated to his extent. 3. Shri Pradeep Shah assisted by Shri Chakravarti Singh learned defence counsel vehemently and fervently contended that the conviction of the appellants as recorded by the trial court by the impugned judgment, is absolutely unjust and contrary to the facts and thus, the following grounds were put for questioning the validity of the impugned judgment:- (i) That the FIR (Ex.P12) came to be lodged by the complainant after a significant delay; (ii) That the first informant Kana Ram, who is the sole prosecution eye-witness lodged the FIR against six persons, out of which, Vishnaram and Bhikharam were not charge-sheeted and as, the prosecution story was disbelieved for these two persons, the appellants herein too cannot be held guilty of the charges on the same evidence; (iii) That the testimony of the sole eye witness first informant Kana Ram (PW-5), is not reliable because he made wholesale exaggerations and improvements while deposing on oath; (iv) That the allegation levelled by Kana Ram that the accused looted his ear-studs, is not fortified by the recovery because no test identification proceedings were held of the ear-studs allegedly recovered at the instance of the accused; and (v) That the cabin of the complainant caught fire accidentally and the complainant who was inimical to the appellants, misused the accidental incident to implicate the appellants falsely; 4. They thus urged that the accused deserve to be acquitted while giving them the benefit of doubt. They thus urged that the accused deserve to be acquitted while giving them the benefit of doubt. In the alternative, their submission was that the incident took place way back in the year 1994; the accused appellants have remained in custody for quite a significant period and ends of justice would be served by reducing the sentences awarded to the appellants to the period already undergone by them. As per them, it would be nothing short of travesty of justice, if the accused are sent back to prison after almost 26 years from the date of commission of the offence. 5. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by appellants' counsel. He urged that the appellants virtually acted with hooliganism while setting the cabin of the complainant (first informant) to fire. The object of the accused was to get the cabin vacated. As the complainant was not buckling to their evil design, the accused took the law in their hands, forcibly ousted the complainant from his shop/cabin and then, set it to fire. He submitted that the evidence of the complainant Kana Ram (PW-5) is duly corroborated by the testimony of independent witnesses Hukmaram (PW-1), Magaram (PW-2) and Kalu (PW-4). He further submitted that the ear-studs of the complainant were looted during the incident and were recovered at the instance of the accused Naga Ram. These ear-studs were identified by the complainant Kana Ram in the test identification proceedings and so also during his sworn testimony. Likewise, the watch of the complainant was also looted by the accused-persons during the course of the incident and it was also recovered by the Investigating Officer during investigation. The complainant Kana Ram identified the watch in his sworn testimony to be the one, which was looted by the accused. Thus, as per the learned Public Prosecutor, the evidence of the prosecution witnesses is wholly reliable and the trial court was absolutely justified in convicting and sentencing the appellants as above. He urged that considering the atrocious manner in which, the accused acted, there is no justification for acceeding to the prayer of learned defence counsel that the sentences awarded to the accused should be reduced. On these grounds, learned Public Prosecutor sought dismissal of the appeal. 6. He urged that considering the atrocious manner in which, the accused acted, there is no justification for acceeding to the prayer of learned defence counsel that the sentences awarded to the accused should be reduced. On these grounds, learned Public Prosecutor sought dismissal of the appeal. 6. I have given my thoughtful consideration to the arguments advanced at the Bar and have gone through the material available on record. 7. The first informant Kana Ram (PW-5) lodged the written report (Ex.P/2) on the day after the incident regarding the accused having set his cabin to fire. The incident took place in a village. The FIR came to be lodged at the police station Barmer and thus, the complainant must have been rightfully prevented from approaching the police station during this period. Therefore, I have no hesitation in holding that the slight delay occasioned in lodging of the FIR is duly explained. The complainant has attributed specific allegation against the accused that they were threatening him to vacate the shop and give up the plot when he resisted this endeavor of the accused, they took law into their own hands and committed the offences of affray, arson and looting. In my opinion, the prosecution has duly established the fact that the accused had a strong motive for committing the offence. The complainant had no apparent animosity with the accused, nor wasany such suggestion given to him in cross examination; rather the defence elicited an answer from the complainant that Jagmal used to operate a shop opposite to him and he was pressing hard that the shop of the complainant should be removed. Therefore, the motive to the commit offence has been duly fortified in the cross-examination of the complainant. The complainant categorically alleged in his testimony that the accused Jagmal, Hukmaram, Nagaram, Ambaram, Vishnaram and Bhikharam came to his shop. Jagmal pulled him out and then set fire to the cabin. Presence and active participation of all the accused in the offence is duly stated by the complainant as well as the independent witnesses referred to supra. When Jagmal was setting fire to the shop of the complainant Hukmaram along with Kesraram, Kaluram and Magaram came around and confronted the accused as to why they were torching the shop of the complainant on which, Jagmal threatened that if anyone intervened, they too would be beaten. When Jagmal was setting fire to the shop of the complainant Hukmaram along with Kesraram, Kaluram and Magaram came around and confronted the accused as to why they were torching the shop of the complainant on which, Jagmal threatened that if anyone intervened, they too would be beaten. Thereafter, all the six accused dragged the complainant into the school, where Nagaram took away his ear-studs, watch and the sum of Rs.800/- which he was carrying with him. Jagmal then tried to set the complainant to fire, but on intervention of the witnesses, he could somehow be saved. Nothing was elicited in the cross-examination of the witness, which can dilute the evidentiary worth of his statement. 8. As stated above, the evidence of the complainant is duly corroborated in material particulars by the evidence of Hukmaram (PW-1), Magaram (PW-2) and Kalu (PW-4). The complainant categorically alleged that his watch, ear-studs and Rs.800/- were snatched away by the accused. During the course of investigation, the Investigating Officer recovered these articles in furtherance of the informations provided by the accused under Section 27 of the Evidence Act. The ear-studs of the complainant were put up for test identification and the complainant correctly identified the same to be his own. The ear-studs were also got exhibited in the sworn testimony of the complainant, who identified the same to be his own. Therefore, the complainant's allegation that the accused set fire to his shop and looted his valuables, is well established from his evidence, the evidence of the independent witnesses, the recoveries effected by the Investigating Officer and evidence of Medical Officer Dr. M.M. Purohit (PW-8), who noticed two injuries on the person of the complainant when he was medically examined. The Investigating Officer Kherajram (PW-9) duly proved the relevant steps of investigation including recovery of the looted articles of the complainant. The fact that the complainant's cabin was set to fire is duly fortified from the site inspection memo (Ex.P/3) which indicates the presence of signs of burns. 9. In this background, I am of the firm opinion that the trial court was absolutely justified in holding the appellants guilty of the offence. The fact that the complainant's cabin was set to fire is duly fortified from the site inspection memo (Ex.P/3) which indicates the presence of signs of burns. 9. In this background, I am of the firm opinion that the trial court was absolutely justified in holding the appellants guilty of the offence. The contention of the learned defence counsel that two accused who were named by the complainant in his testimony, were not charge-sheeted and thus, the accused appellants also deserve to be acquitted, is noted just to be rejected because the concept of falsus in uno, falsus in omnibus does not hold good in criminal jurisprudence of our country. The evidence of the two defence witnesses Panaram (DW-1) and Kesraram (DW-2), is ex-facie far from convincing because Panaram alleged that Kanaram himself set fire to his cabin. A pertinent suggestion in this regard was made to the complainant, Kanaram who categorically denied the same. Kesraram (DW-2) had supported the prosecution case during the course of investigation and he simply stated that he did not give any such statement(Ex.D1) to the police. Thus, the statement of Kesraram is in the negative form and does not help the defence in any manner whatsoever. 10. As an upshot of the above discussion, I am of the firm opinion that the trial court was absolutely justified in convicting the appellants as above by the impugned judgment which does not suffer from any infirmity whatsoever. 11. Now coming to the contention of Shri Shah that the accused deserve leniency on the aspect of sentence. True it is, that more than 26 years have passed since the offence was committed but still, this Court has to remain conscious of the fact that the victim also has been deprived of justice due to this long pendency of the appeal. Therefore, the case cannot be looked at only from the side of suffering, which the accused might have faced due to long pendency of the appeal but the victim's point of view also has to be kept in mind. Therefore, the case cannot be looked at only from the side of suffering, which the accused might have faced due to long pendency of the appeal but the victim's point of view also has to be kept in mind. Therefore, for balancing the equities and ensuring that neither the accused nor the victim are denied justice because of the delay occasioned in decision of the appeal, I am of the opinion that the ends of justice will be served by reducing the sentences awarded to the accused appellants by the trial court from the term of seven years on each count to one year's R.I. on each count. At the same time, the fine imposed by the trial court on the accused for each charge deserves to be enhanced to Rs.20,000/-. Thus, the reduced sentences would read as below:- Conviction for offence under Sections Sentences 392/34 I.P.C. One year's R.I. and a fine of Rs.20,000/- 327/34 I.P.C. One year's R.I. and a fine of Rs.20,000/- 436/34 I.P.C. One year's R.I. and a fine of Rs.20,000/- All the sentences are ordered to run concurrently. 12. The bail bonds of the accused are cancelled. They shall be taken back to custody to serve out the remaining sentences. The accused are given two months' time from today to deposit the fine, which shall be paid to victim Kanaram by way of compensation under Section 357 Cr.P.C. In case, the fine is not deposited within two months, the accused shall be requested to serve six months' default sentence on each count. 13. The appeal is partly allowed as above. 14. Record of the trial court be sent back forthwith.