Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 1597 (RAJ)

State of Rajasthan v. Om Prakash

2022-05-17

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT : PUSHPENDRA SINGH BHATI, J. 1. This criminal appeal has been preferred by the appellant-State against the judgment dated 07.06.1993 passed by the learned Additional District and Sessions Judge, Chittorgarh in Sessions Case No. 118/85, whereby the respondents were acquitted of the offences under Section 307 read with Section 34 and Section 427 IPC. 2. Brief facts of this case, as placed by the learned Public Prosecutor appearing on behalf of the appellant-State, are that upon an information being received on 04.04.1984 regarding bank robbery in Bundi, orders for blockade (Nakabandi) were issued to the In-charge of all the Reserve Centres (Aarakshi Kendra) situated in Chittorgarh District. 3. The then SHO of the Kotwali, Chittorgarh on 05.04.1984 at about 06:30 a.m. received an information through wireless from the SHO, Dhamottar Police Station that a green coloured Jeep (without registration number), which was coming from the side of Pratapgarh towards Dhamottar Bus Stand was shown a gesture to stop by the police, but the driver of the same did not stop the said Jeep; thereafter, as per the information, the said Jeep proceeded towards Nimbahera. 3.1 Thereafter, the police team of Kotwali, Chittorgarh went to follow the said Jeep, and found that the said Jeep (being identified as the offending vehicle) was coming from the opposite side; whereupon the police team tried to stop the same, but despite that, the said Jeep was not stopped, and even the driver escalated the speed of the said Jeep, after seeing the police team, and with an intention to kill the members of the police team, the driver of the Jeep hit the police vehicle; thereafter the offending jeep went towards Nimbahera with high speed. As per the police team, there were four persons sitting in the offending Jeep, one of whom was carrying 12 Bore Rifle. 3.2 The police team again went to follow the offending Jeep, and they successfully found it; whereupon one of the person sitting in the said Jeep fire upon the police team with Rifle, with an intention to kill the members of the police team, which was retaliated by the police team by their 303 Bore Rifle. 3.2 The police team again went to follow the offending Jeep, and they successfully found it; whereupon one of the person sitting in the said Jeep fire upon the police team with Rifle, with an intention to kill the members of the police team, which was retaliated by the police team by their 303 Bore Rifle. 3.3 Thereafter, upon making efforts by the police team, accused-Om Prakash (driver of the offending Jeep) was taken into custody by the police; whereupon he mentioned the name of other accused-respondents Onkar Singh and Leharu as the co-passengers, and one other person (name of whom was not known to the accused-respondent Om Prakash), sitting in the offending vehicle on the date of the alleged incident in question. 3.4 Accused-respondent Om Prakash also informed the police that the said offending Jeep was being hired for the purpose of carrying opium and the present accused-respondents were carrying the said opium from Ratangarh to be taken to Madhya Pradesh; however, upon seeing the police, they left the jeep alongwith the opium in a jungle and ran away therefrom. The license of the aforementioned 12 Bore Rifle was found to have been issued in the name of accused-respondent Om Prakash. The said offending Jeep, Rifle alongwith its license, one empty and one live cartridges, after following the due procedure, were confiscated by the police, thereafter. 3.5 After reaching the Reserve Centre Kotwali, the concerned SHO registered an FIR (Ex.P.9) against the accused-respondents, and accordingly, the investigation commenced coupled with other formalities of sending the samples for FSL analysis and 12 Bore Rifle (offending Rifle) for ballistic analysis. After investigation, the police filed a charge-sheet against the accused-respondents before the learned trial court, whereupon the charges were framed against the accused-respondents for the offences under Section 307 read with Section 34 and Section 427 IPC. The accused-respondents upon denying the said charges, were made to stand the trial, and the trial accordingly commenced. 3.6 During the course of trial, the learned trial court examined the testimony of the witnesses produced before it, and thereafter, the learned trial court, after conclusion of the trial, vide the impugned judgment dated 07.06.1993, acquitted the accused-respondents of all the charges levelled against them. Hence, the present appeal has been preferred by the appellant-State against the said impugned judgment of acquittal. 4. Hence, the present appeal has been preferred by the appellant-State against the said impugned judgment of acquittal. 4. Learned Public Prosecutor for the appellant-State submits that the evidence placed on record, particularly in the form of testimony of the prosecution witnesses, clearly proves the fact that the accused-respondents, with a clear intention to kill the police team, hit the police vehicle and not only this, upon being followed by the police, the accused-respondents opened gun fire upon the police team. 4.1 As per learned Public Prosecutor, although in absence of any independent witness to the alleged incident in question, no such witness was produced before the learned trial court, but looking into the nature of crime and the attending facts and circumstances of the case, the testimony of the prosecution witnesses cannot be discarded, only on the count of them being the members of the police team, more particularly, when the ballistic report was positive, thereby supported the case of the prosecution. 4.2 Learned Public Prosecutor further submits that the learned trial court, while passing the impugned judgment of acquittal, failed to appreciate the fact that despite showing the gesture, on two different occasions by two different police team, to stop, the driver (accused-respondent Om Prakash) did not stop the jeep, rather, with an intention to kill the police team, hit the police vehicle and drove the jeep with even much higher speed. The said act of the accused-respondents clearly prove their intention to kill the police team, and thus, on that count alone, the learned trial court ought to have convicted the accused-respondents. 4.3 Learned Public Prosecutor also submits that the one of the reasons assigned by the learned trial court, for acquittal of the accused respondents, was the inconsistencies in the testimony of the prosecution witnesses; such inconsistencies were minor in nature, and the magnitude of such inconsistencies was not such, which may have persuaded the learned trial court to acquit the accused-respondents. Such minor inconsistencies, as per the learned Public Prosecutor, were obvious, as it was quite natural, since the police was continuously following the jeep, and even if there was some confusion regarding the colour of the jeep, the fact of the matter is that the said offending Jeep was recovered by the police, and the accused-respondent Om Prakash made a clear admission of the alleged crime after being taken into custody by the police; he also informed the police about the involvement of the other two accused-respondents-Onkar Singh and Leharu in the alleged crime in question, amongst other depositions, as mentioned above. 4.4 Learned Public Prosecutor also submits that the aforesaid factual matrix, more particularly, the act of hitting the police jeep, firing upon the police team and reluctance of the accused-respondents to stop the offending Jeep, despite due gestures by the police teams, on two different occasions, clearly shows that the accused-respondents were bent upon to kill the police team, which was following them. Thus, as per learned Public Prosecutor such an ill-intention to kill and the conduct of the accused-respondents clearly makes out a case against them, for the alleged offences. 4.5 Learned Public Prosecutor also submits that the learned trial court also erred in holding that no offence under Section 307 was made out, as there was no injury caused to the members of the police team; whereas the act and conduct of the accused-respondents was self-explanatory to the effect that such an act was done by the accused-respondents with a clear intention to kill the members of the police team. 4.6 Learned Public Prosecutor further submits that the learned trial court further erred in drawing a conclusion that the accused-respondents fired only to save themselves from the police team, and not with an intention to kill the members of the police team (absence of the element of mens rea); such firing was done to restrain the police team from following the accused-respondents; such finding of the learned trial court, as per the learned Public Prosecutor, runs not only contrary to the record, but also the evidence placed on record before it. 4.7 Learned Public Prosecutor thus, submits that the learned trial court however, despite the aforementioned backdrop, without taking into due consideration the overall facts and circumstances of the case and without duly appreciating the evidence placed before it, acquitted the accused-respondents vide the impugned judgment, which cannot be sustained in the eye of law; thus, the impugned judgment deserves to be quashed and set aside by this Court. 5. On the other hand, Mr. Manish Shishodia, learned Senior Counsel assisted by Mr. Ajay Singh Rathore and Mr. Vineet Jain, learned Senior Counsel assisted by Mr. Rajiv Bishnoi, appearing on behalf of the accused-respondents, submit that even if the prosecution story is believed, it is an admitted position that the firing was done from both sides i.e. from the side of the accused-respondents as well as the police team. 5.1 Learned Senior Counsel further submit that it is also an admitted fact that both the sides, did not sustain even a single injury, and thus, the firing from the side of the accused respondents was not effective, thereby falsifying the version of the prosecution regarding the intention of the accused-respondents to kill the members of the police tea, and thus, the finding in relation to absence of mens rea was rightly drawn by the learned trial court; this is more so when, the prosecution has clearly failed to establish before the learned trial court that the said firing from the side of the accused-respondents was opened to kill the members of the police team and not to save themselves, thereby restraining the police team from following the accused-respondents; as per learned Senior Counsel, thus, there was no intention on the part of the accused-respondents even to cause injury to the police team. 5.2 As per learned Senior Counsel, this is more so when there were several inconsistencies in the testimony of the prosecution witnesses, regarding number of fire opened at the instance of the accused-respondents; not only this, the description of the jeep, particularly colour thereof, as given in the testimony of the prosecution witnesses, was also quite inconsistent. 5.3 Learned Senior Counsel further submits that Vijay Singh PW-6, PW-7 Lal Singh and PW-8 Moinuddin - who at the relevant time, members of the police team - did not depose about firing on the police Jeep. 5.3 Learned Senior Counsel further submits that Vijay Singh PW-6, PW-7 Lal Singh and PW-8 Moinuddin - who at the relevant time, members of the police team - did not depose about firing on the police Jeep. Learned Senior Counsel also submits that as per the prosecution case, the place where the offending Jeep overturned, and whereupon the accused-respondent Om Prakash opened fire, while running away, resultantly the same kept the signs of pellets at a tree; but no panchnama of the tree in regard thereto was prepared. 5.4 Learned Senior Counsel also submits that as regards accused-respondents Onkar Singh and Leharu are concerned, they were implicated solely on the basis of the information of accused-respondent Om Prakash and thus, in absence of any independent witness in regard to their involvement in the crime in question, there culpability was not proved. 6. Heard learned counsel for the parties as well as perused the record of the case. 7. This Court finds that as per the prosecution case, the Jeep in which the police team was sitting was subjected to open fire by the accused-respondents, but there is not a single injury caused to any of the members of either of the parties; even there are no traces of such firing on the police jeep. Further, as per the testimony of Majid Mohammad PW-2, the police jeep was hit by the jeep of the accused-respondents, and at that time also, the fire was opened by the accused-respondents on the police jeep; but the same was not substantiated by the other prosecution witnesses. The factum of no injury having been sustained by any of the parties clearly points towards absence of any intention to kill on the part of the accused-respondents, as had there been any such intention, some members must have sustained injuries, either simple or grievous or injuries dangerous to life; even the possibility of some casualty also cannot be ruled out, looking to the nature of the alleged incident in question. 8. 8. Furthermore, the fact that at the time of the alleged incident, the sand was blowing from the road, on count of both the jeeps being driven at a very high speed as also the factum of distance between the two vehicles, make it clear that the alleged firing was done, not with an intention to kill the members of the police team, but the same was done with the object of restraining the police team from following the jeep of the accused-respondents. Moreover, the factum of absence of any independent witness to the alleged incident, adds to the inconsistencies, which have already been observed by the learned trial court in the impugned judgment. 9. Looking to the overall testimony of the prosecution witnesses, it is clear that the accused-respondents Onkar Singh and Leharu were entangled in this case, only on the sole testimony and information of the accused-respondent Om Prakash; this is more so when, they were not caught on the spot, but were arrested later on at some different place; other than the testimony of the accused-respondent Om Prakash, there is not an iota of evidence against the accused-respondents Onkar Singh and Leharu; the implication of the said accused-respondents only on the basis of the information and testimony of co-accused Om Prakash is hit by the provisions of Section 162 Cr.P.C. and thus, arraignment of the said accused respondents, in the manner done, could not have been sustained in the eye of law, as rightly held by the learned trial court. 10. Furthermore, the inconsistencies observed by the learned trial court in the impugned judgment are not minor in nature. Such inconsistencies, including the one relating to the colour of the jeep and other description thereof, lack of clear identification of the accused-respondents by the concerned prosecution witnesses, casts a shadow of doubt upon the prosecution case. This is more so when, the jeep, being followed by the police team, was never within their continuous vision; even as per the record, the jeep went out of sight several times; such an event of the jeep being in vision of the police team and thereafter, went out of sight, and again coming within the vision, followed by the same went out of sight again, also casts a serious doubt on the prosecution story. 11. 11. This Court also observes that the ballistic report is also of no consequence to the case of the prosecution, as the offending Rifle in question and the three empty cartons/cartridges recovered by the police, were not sealed by the police on the spot, nor there was any mark of seal thereon; such a gross failure on the part of the police is also hit by the provisions of law. The prosecution also failed to prove, beyond reasonable doubts, before the learned trial court that the aforementioned Rifle and cartons/cartridges were the same, as were sent for FSL analysis. 12. The aforementioned backdrop, in the opinion of this Court, clearly indicates that the prosecution has failed to prove the charges against the accused-respondents, beyond reasonable doubts. 13. In view of the above, this Court does not find any legal infirmity in the impugned judgment of acquittal passed by the learned trial court in favour of the accused-respondents, so as to warrant any interference by this Court. 14. Consequently, the present appeal is dismissed. All pending applications stand disposed of. Record of the learned court below be sent back forthwith.