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2021 DIGILAW 469 (RAJ)

Bajrang Meghwal @ Bajju v. State of Rajasthan

2021-02-23

DEVENDRA KACHHAWAHA, SANDEEP MEHTA

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ORDER Mehta, J. - Heard learned counsel representing the applicants appellants, learned Public Prosecutor and the learned counsel representing the complainant. Perused the impugned Judgment as well as the record. 2. These two applications for suspension of sentences have been preferred on behalf of the appellants applicants who have been convicted and sentenced as below vide Judgment dated 10.12.2019 passed by the learned Additional Sessions Judge, Bhadra, District Hanumangarh in Sessions Case No.20/2015 (CIS No.20/2015): Bajrang: Offences Sentences Fine Fine Default sentences Section 147 IPC 2 Years? R.I. Rs.500/- 1 Months? S.I. Section 148 IPC 3 Years? R.I. Rs.1000/- 2 Months? S.I. Section 341 IPC 1 Months? R.I. Rs.500/- 5 Days? S.I. Section 302 IPC Life Imprisonment Rs.5,000/- 2 Years? S.I. Prabhati, Date Ram, Bittu, Rajendra @ Ghamiya Offences Sentences Fine Fine Default sentences Section 147 IPC 2 Years? R.I. Rs.500/- 1 Months? S.I. Section 148 IPC 3 Years? R.I. Rs.1000/- 2 Months? S.I. Section 341 IPC 1 Months? R.I. Rs.500/- 5 Days? S.I. Section 302/149 IPC Life Imprisonment Rs.5,000/- 2 Years? S.I. Section 3/25 of the Arms Act 3 Years? R.I. Rs.1,000/- 1 Month?s S.I. Section 27 of the Arms Act 3 Years? R.I. Rs.1,000/- 1 Month?s S.I. 3. Learned Public Prosecutor was given ample opportunity for filing reply to the applications for suspension of sentences but he has chosen not to do so. 4. Shri Moti Singh, learned counsel representing the complainant has filed an affidavit regarding the previous criminal conduct of the accused. A counter affidavit of Bhim Singh (brother of the accused appellant Bajrang Singh) has been filed wherein, it has been narrated that the accused appellant Bajrang Singh has been acquitted in most of the criminal cases registered against him till date. 5. Brief facts relevant and essential for decision of the two applications for suspension of sentences are narrated herein below: 6. The complainant Mahesh (PW-1) lodged a written report (Ex.P/1) to the SHO, Police Station Bhirani, District Hanumangarh at 03.15 pm. on 27.01.2015 at the Community Health Center, Hisar alleging inter alia that on the very same day at about 12.15 pm., his father Ramswaroop was proceeding from their home towards the bus stand. He had reached near the Government School Jhansal, where Bajrang Meghwal, Chandrabhan, Prabhati, Dataram, Bittu and Ghamiya, all armed with pistols/firearms, were waiting from before. They surrounded his father Ramswaroop and started firing at him. He had reached near the Government School Jhansal, where Bajrang Meghwal, Chandrabhan, Prabhati, Dataram, Bittu and Ghamiya, all armed with pistols/firearms, were waiting from before. They surrounded his father Ramswaroop and started firing at him. Data Ram fired his weapon and the resultant gunshot hit his father on the head. Bajrang fired from his weapon which hit on the abdomen of his father. On hearing the commotion, the informant, his brother Rajendra, Kuldeep and other people rushed to the spot. On seeing them, the accused persons escaped in the nearby lanes. He and his brothers checked his father on which, Bajrang exhorted that he would kill all. His father was taken to the Chhani Bari Hospital. The doctor at Chhani Bari referred him to the Hisar Hospital for treatment. While they were on the way, his father passed away. His father had been attacked by Bajrang and others with firearms due to which, he expired. On the basis of this report, an FIR No.10/2015 (Ex.P/2) came to be registered at the Police Station Bhirani, District Hanumangarh for the offences under Sections 302, 147, 148, 149 and 341 IPC. After investigation, a charge-sheet was filed against the accused Prabhati, Data Ram, Bittu and Rajendra @ Ghamiya for the offences under Sections 302, 341, 147, 148, 149 and 120B of the IPC and Sections 3/25 and 27 of the Indian Arms Act and against the accused Bajrang and Lal Chand for the offences under Sections 302, 147, 148, 149, 120 and 109 of the IPC in the Court of the Judicial Magistrate, Bhadra, District Hanumangarh from where, the case was committed to the Court of the Additional Sessions Judge, Bhadra, District Hanumangarh for trial. Initially, after hearing the arguments, charges were framed against the accused persons in terms of the charge-sheet. The matter was remanded to the trial court for fresh consideration in a revisional order passed by the High Court whereafter, charges were modified qua the accused Bajrang and Lal Chand. After culmination of trial, the learned trial court, convicted and sentenced the accused persons as above. 7. Shri J.S. Choudhary, learned Senior Counsel assisted by Shri Pradeep Choudhary, Advocate representing the accused appellants Prabhati, Date Ram, Bittu, Rajendra @ Ghamiya and Shri Vineet Jain, learned counsel representing the accused appellant Bajrang Meghwal, advanced detailed arguments craving indulgence of bail to the appellants during pendency of the appeal. 7. Shri J.S. Choudhary, learned Senior Counsel assisted by Shri Pradeep Choudhary, Advocate representing the accused appellants Prabhati, Date Ram, Bittu, Rajendra @ Ghamiya and Shri Vineet Jain, learned counsel representing the accused appellant Bajrang Meghwal, advanced detailed arguments craving indulgence of bail to the appellants during pendency of the appeal. Shri Choudhary urged that the entire prosecution case is false and fabricated. As a matter of fact, the alleged eye-witnesses Mahesh (PW-1), Kuldeep (PW-2) and Kaur Singh (PW-6) were not present at the spot. They are all close relatives of the deceased and were cooked up as eye-witnesses in order to falsely rope in the accused appellants because of long standing enmity whereas, none of the accused persons was present at the spot. In this regard, firstly, the Court's attention was drawn to the Rojnamcha Entry (Ex.P/103A) which was entered at the Police Station Bhirani on 27.01.2015 at 12.40 pm. wherein it is recorded that a telephonic information was received that Date Ram Valmiki resident of Jhansal had fired gunshots at Ramswaroop Master (brother of the person who made the call). On the basis of this Rojnamcha Entry, it was urged that the allegations set out in the written report and the evidence of the alleged eye-witnesses, are totally falsified. The attention of this Court was also drawn to the statement of the Medical Officer (PW-5) Dr. Rajendra Bhanwaria who attended to Ramswaroop at the Primary Health Center, Chhani Bari on 27.01.2015 when he was brought there in an injured condition. The doctor admitted in his cross-examination that when he examined the injured, he was shouting that he had been shot but he was not naming anyone for the assault. The injured also told the doctor that none of his family members was accompanying him. On the strength of this admission of the Medical Officer, learned counsel Shri Choudhary and Shri Jain urged that had there been an iota of truth in the statement of the alleged eye-witnesses Mahesh, Kuldeep and Kaur Singh that the incident took place in their viewing and that it was they who carried Ramswaroop to the hospital, then he would not have told the Medical Officer that none of his family members was accompanying him. They also urged that names of the assailants would have been immediately divulged to the police authorities when telephonic information was given and would also have been given out to the Medical Officer if there was even an iota of truth in the prosecution case that the incident was witnesses by the informant and his companions. Shri Choudhary and Shri Jain also submitted that the evidence of the material prosecution witnesses Mahesh, Kuldeep and Kaur Singh is contradicted by the medical testimony. They urged that in the written report (Ex.P/1), Mahesh categorically mentioned that the gunshot fired by Bajrang hit Ramswaroop on the abdomen. Similar allegation was levelled in the statements of all the three eye-witnesses recorded under Section 161 Cr.P.C. But, when deposing on oath, these so-called eye-witnesses modulated their testimony to match the same with the postmortem report wherein, the entry wound was noticed to be existing on the back of the deceased whereas, the exit wound was found on the abdomen. Attention of the Court was also drawn to the evidence of the Investigating Officer (PW-28) Phoolchand Sharma who admitted in his cross-examination that after conducting investigation, he reached to a conclusion that presence of Bajrang and Lal Chand was not found established at the spot and that is why, they were charge-sheeted for the offence under Section 302 IPC read with Sections 109 and 120B of the IPC. No firearm was recovered from the accused appellant Bajrang during investigation. Shri J.S. Choudhary, learned Senior Counsel drew the Court's attention to the evidence of the Medical Officer (PW-5) Dr. Rajendra Bhanwaria and urged that the lacerated wound noticed on the head of the deceased was not opined to be caused by firearm and thus, the role attributed by the prosecution witnesses to the accused Date Ram is falsified. They also submitted that all the appellants other than Date Ram, were on bail during trial and did not misuse the liberty so granted to them. On these submissions, Shri Choudhary and Shri Jain urged that it is a fit case for extending indulgence of bail to the applicants-appellants during pendency of the appeal. 8. Per contra, learned Public Prosecutor and Shri Moti Singh and Shri S.S. Gour learned counsel representing the complainant, vehemently and fervently opposed the submissions advanced by the appellants' counsel. They urged that the appellant Bajrang has significant criminal history. 8. Per contra, learned Public Prosecutor and Shri Moti Singh and Shri S.S. Gour learned counsel representing the complainant, vehemently and fervently opposed the submissions advanced by the appellants' counsel. They urged that the appellant Bajrang has significant criminal history. The complainant and the accused parties were daggers-drawn with each other and numerous criminal cases had been instituted inter-se between them. One Prabhudayal son of Lalchand was murdered in the year 2014 and during his cremation, Bajrang had sworn that Prabhudayal was his brother and that he would take revenge for his murder. For this offensive attitude, the accused persons were bound-down under Section 107-116 Cr.P.C. Learned counsel Shri Moti Singh drew the Court's attention to the proceedings registered against the accused party under Section 107-116 Cr.P.C. in the years 2013-2014. He urged that inspite of being bound-down to maintain peace and be of good behaviour, the accused formed an unlawful assembly in order to wreak vengeance; waylaid the unsuspecting victim Ramswaroop while he was proceeding to the bus stand. He was surrounded and indiscriminate gunshots were fired at him which hit his head and abdomen and proved fatal. He thus urged that if the accused are enlarged on bail during pendency of the appeal, there is every likelihood that the violence would be repeated and life of the members of the complainant party would be put to imminent risk. He therefore urged that the appellants do not deserve indulgence of bail during pendency of the appeal. 9. A pertinent query was put to Shri Moti Singh as to whether any incident of violence was reported between the accused party and the complainant party after the accused had been granted bail in the present case during trial to which, Shri Moti Singh candidly conceded that no such incident of violence was in his knowledge. 10. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned Judgment and the record. 11. Suffice it to say that a pertinent case was set up in the FIR and in the evidence of the three eye-witnesses Mahesh (PW-1), Kuldeep (PW-2) and Kaur Singh (PW-6), that the victim Shri Ramswaroop was proceeding towards the bus stand. He had reached near the Government school when the accused waylaid him. All the accused were allegedly armed with firearms. He had reached near the Government school when the accused waylaid him. All the accused were allegedly armed with firearms. Specific allegation was levelled in the FIR that the accused Bajrang fired a gunshot from his weapon which hit on the abdomen of the deceased. This portion in the FIR was specifically put to the witness Mahesh (PW-1) in his cross-examination because when postmortem was carried out, the Medical Board noticed in the postmortem (Ex.P/20) that the firearm wound on the abdominal area was the exit wound whereas, the entry wound was on the back. While giving testimony in the Court, all the three eye-witnesses modulated their evidence and stated that Bajrang fired gunshot at his father and the bullet exited from his abdomen. This modulation was apparently made so as to match the Medical Jurist's opinion. 12. As has been noted above, a telephonic information regarding the incident was received at the Police Station Bhirani on 07.01.2015 at 12.40 pm. wherein, it was mentioned that Data Ram @ Date Ram had fired at Ramswaroop, brother of the informant. In this telephonic information which was recorded in the Rojnamcha Entry (Ex.P103A), there is no reference to the name of any other assailant. The evidence of the Medical Officer (PW-5) may be fruitfully referred to at this stage. In cross-examination, the Medical Jurist categorically stated that he did not ask the name of the person who had brought Ramswaroop to the hospital in an injured condition. Ramswaroop was speaking at that time. He was shouting that he had been shot at but was not naming anyone as his assailant. Ramswaroop told the doctor that no one from his family was accompanying him. This version of the Medical Officer, does create a doubt on the prosecution story that Ramswaroop was actually taken to the Hospital by his family members viz. the three eye-witnesses Mahesh (PW-1), Kuldeep (PW-2) and Kaur Singh (PW-6). Three injuries were noticed by the Medical Board when the postmortem was carried out on the dead body of Ramswaroop. Injury No.1 was a circular lacerated wound on the left lumber vertebra region with inverted margins and blackening. This was an entry wound caused by a firearm. The exit wound was noticed on the right mid costal margin, the edges whereof were everted. Injury No.1 was a circular lacerated wound on the left lumber vertebra region with inverted margins and blackening. This was an entry wound caused by a firearm. The exit wound was noticed on the right mid costal margin, the edges whereof were everted. Pertinent deposition was made by the Medical Officer that the injury Nos.1 and 2 were respectively the entry and exit wounds caused by a gunshot. Injury No.3 was a lacerated wound admeasuring 1X2 cms. bone deep on the left frontal area of the scalp. The Medical Jurist did not state that this injury was caused by a gunshot. As per the FIR and the investigational statements of the three alleged eye-witnesses Mahesh (PW-1), Kuldeep (PW-2) and Kaur Singh (PW-6), the gunshot fired by the appellant Bajrang allegedly hit on the abdomen of the deceased. However, this version was modulated in the sworn testimony and it was stated that the gunshot fired by Bajrang hit on the back of Ramswaroop and came out from the front. Thus, apparently there was an attempt to modulate the testimony so as corroborate with the medical evidence. The Investigating Officer (PW-28) Phoolchand Sharma admitted in his cross-examination that after conducting investigation, he did not find the presence of the accused Bajrang at the spot and he was charge-sheeted as being the conspirator. Regarding the contention of the complainant's counsel that the accused Bajrang has significant criminal antecedents, suffice it to say that a counter affidavit has been filed on behalf of the said accused wherein, it is categorically mentioned that out of the total of nine criminal cases registered against the appellant Bajrang, he has been acquitted/exonerated in five of them. Three convictions have been recorded against the appellant Bajrang including the present one. Only one case was registered against Bajrang after the present one which relates to an incident of crowd disturbance. The trial court modified the charge against the accused appellant Bajrang whereafter, he was granted bail by this Court vide order dated 23.09.2016 passed in S.B. Criminal Misc. Second Bail Application No.6837/2016. There is no allegation of the prosecution that after being enlarged on bail in the present case, the appellant Bajrang indulged in any criminal activity with any of the members of the complainant party. Second Bail Application No.6837/2016. There is no allegation of the prosecution that after being enlarged on bail in the present case, the appellant Bajrang indulged in any criminal activity with any of the members of the complainant party. So far as the accused Data Ram is concerned, the allegation against him is of firing a gunshot which hit the head of the victim Ramswaroop. However, this allegation is not corroborated by the medical evidence. All the accused persons other than Data Ram were on bail during the course of trial and there is no allegation that they misused the liberty of bail so granted to them. It may be stated here that the appellant Date Ram @ Data Ram was arrested in this case on 31.01.2015 and since then, he is in custody. No charge for the offence under the Indian Arms Act was framed against the accused Bajrang. 13. In this view of the matter and having regard to the overall facts and circumstances as available on record, we are of the opinion that the appellants have available to them strong and justifiable grounds so as to assail the impugned Judgment of conviction. Hearing of the appeal is likely to consume time. 14. Making it clear that any of the observations made in this order shall not be treated prejudicing the merits of the case when the appeals are finally heard and decided, we are inclined to accept these applications for suspension of sentences and enlarge the appellants on bail during pendency of the appeal. 15. Accordingly, the applications for suspension of sentences filed under Section 389 Cr.P.C. are allowed and it is ordered that the sentences awarded by the Additional Sessions Judge, Bhadra, District Hanumangarh, vide judgment dated 10.12.2019 in Sessions Case No.20/2015 (CIS No.20/2015) against the appellants-applicants (1) Bajrang Meghwal @ Bajju, (2) Prabhati, (3) Date Ram, (4) Bittu and (5) Rajendra @ Ghamiya, shall remain suspended till final disposal of the aforesaid appeal and they shall be released on bail, provided each of them executes a personal bond in the sum of Rs. 1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for their appearance in this court on 23.03.2021 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- 1. 1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for their appearance in this court on 23.03.2021 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:- 1. That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided. 2. That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court. 3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court. The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant(s) was/were tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail. A copy of this order be placed in each file.