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2024 DIGILAW 799 (RAJ)

Tamachi v. State of Rajasthan

2024-05-15

DINESH MEHTA, RAJENDRA PRAKASH SONI

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ORDER : 1. The present criminal appeal under section 374(2) of Cr.P.C. has been filed challenging the judgment dated 13.11.1997, whereby the learned Sessions Judge, Barmer convicted and sentenced the appellants as under: Accused Offence U/s Sentence Fine Tamachi 302 read with section 114 IPC Life imprisonment Rs. 100/- in default of payment of fine to further undergo 15 days RI 3/25 of Arms Act 1 Year Rs. 100/- in default of payment of fine to further undergo 15 days RI Channu @ Chanesar 302 read with section 114 IPC Life imprisonment Rs. 100/- in default of payment of fine to further undergo 15 days RI 2. At the outset, Mr. Bishnoi, learned Public Prosecutor on the basis of factual report dated 07.05.2024 informed that the appellant No. 2 - Channu @ Chanesar has since passed away. 3. Hence, the present appeal qua appellant No. 2 - Channu @ Chanesar stands abated. 4. The facts in brief, which are relevant for the present purposes are that on 05.07.1995 an FIR came to be registered pursuant to an information/written complaint given by Bhagataram - brother of the deceased (Narnaram), in which he stated that he and his brother were cleaning their field, when they heard sound of firing and proceeded towards the sound and found that persons namely Tamachi, Channu @ Chanesar and Luna were engaged in hunting. On being questioned and cautioned by Narnaram and him, those persons got agitated and the appellants Tamachi and Channu @ Chanesar instigated the principal accused - Luna to fire. The principal accused opened fire at the deceased, who died instantaneously. 5. The learned trial court convicted the accused Luna for the offence under Section 302 IPC, whereas the appellant no. 1 Tamachi was convicted for the offences under section 302 read with section114 of IPC and section 3/25 of Arms Act. 6. Challenging the appellant's conviction for the offence punishable under section 3/25 of Arms Act, Mr. Kumbhat learned counsel for the appellant argued that the recovery memo (Exhibit-P/27) was prepared in the presence of two witnesses namely Bhoma and Arjan and both of them did not appear in the witness box and therefore, the recovery of the gun was not proved by the prosecution. 7. Mr. Kumbhat learned counsel for the appellant argued that the recovery memo (Exhibit-P/27) was prepared in the presence of two witnesses namely Bhoma and Arjan and both of them did not appear in the witness box and therefore, the recovery of the gun was not proved by the prosecution. 7. Mr. Kumbhat, leaned counsel for the appellant also argued that even as per the prosecution case, the principal accused Luna so also appellant was having gun in his hand and therefore, the probability that the present appellant would instigate the co-accused Luna to fire on the deceased is negligible. He added that had the present appellant had any intention to kill the deceased, nothing stopped or prevented him from firing himself, as he admittedly had a gun in his hand for which he stands convicted for the offence under Section 3/25 of the Arms Act. 8. Learned counsel for the complainant and learned Public Prosecutor vehemently opposed the submissions made by the learned counsel for the appellant and contended that testimony of the eyewitness Bhagataram (PW-8) is enough to convict the appellant, as said witness (PW-8) in his statement had clearly deposed that it was the appellant, who instigated the principal accused Luna to fire at the deceased and since such evidence has remained un-controverted, the appellant's conviction deserves to be upheld. 9. Learned Public Prosecutor further contended that simply because the witnesses of recovery memo have not appeared in the witness box, it cannot be said that the recovery was not proved, particularly when the investigating officer has deposed that the appellant himself had given information about the gun and the same was recovered at the instance or information given by the appellant under section 27 of Indian Evidence Act. Therefore, the appeal deserves to be dismissed. 10. Heard learned counsel for the parties and perused the record including the statement of eyewitness Bagataram. 11. So far as the conviction of the appellant under section 3/25 of Arms Act is concerned, we are of the view that in absence of witnesses of recovery namely Bhoma and Arjan in the witness box, it cannot be said that the recovery has been aptly proved. Simply because the investigating officer has stated in his statement that gun has been recovered at the instance of the appellant from his conscious possession, the recovery cannot be said to have been proved. 12. Simply because the investigating officer has stated in his statement that gun has been recovered at the instance of the appellant from his conscious possession, the recovery cannot be said to have been proved. 12. In view of the discussion made hereinabove, we are of the view that the prosecution has failed to prove the offence under section 3/25 of Arms Act beyond reasonable doubt and therefore, we acquit the appellant no. 1 - Tamachi qua offence under section 3/25 of Arms Act. 13. That apart, the gun which was recovered from the appellant pursuant to information under section 27 of the Indian Evidence Act (Exhibit-P/26) is not the weapon of offence. It is the admitted case of the prosecution that the gunshot was fired by Luna Ram from his gun and even while giving information also the appellant had told that the gun which he took with him for the purpose of hunting has been concealed by him. Hence, the fact that the recovery of the gun from the appellant has been proved or not hardly has any bearing so far as the case of the appellant is concerned. 14. It is pertinent to note that PW-8, Bhagataram in his court statement clearly stated and reiterated the story set up by the prosecution that the appellant instigated the principal accused Luna to fire at the deceased. It is to be noted that the eyewitness has also stated and accepted the fact that the present appellant was also having a gun in his hands. 15. Such being the position, we are of the view that had the appellant any intention to kill the deceased, he would rather himself open fire and in the event of extreme annoyance or state of agitation he would at least try to shoot in order to instigate the principal accused Luna to open fire, particularly when he himself had a gun in his hands. 16. The case of the prosecution so also statement of the eyewitness (PW-8) suffers from over implication. Bhagataram is brother of the deceased and hence, the possibility that he has tried to rope in the present appellant under the cloak of instigation in the present set of facts cannot be overruled. There is no other evidence pointing towards appellant's active involvement in this case. 17. Bhagataram is brother of the deceased and hence, the possibility that he has tried to rope in the present appellant under the cloak of instigation in the present set of facts cannot be overruled. There is no other evidence pointing towards appellant's active involvement in this case. 17. That apart, the incident is of year 1995; principal accused who was convicted for murder so also co-accused Channu have since passed away and their appeals have abated. Hence, we are inclined to give benefit of doubt to the appellant for offence under section 302 read with section114 of Indian Penal Code, 1860. 18. As a result of the discussion foregoing, the appeal filed by the appellant Tamachi is allowed; his conviction and sentence for the offences under section 302 read with Section114 of IPC and section 3/25 of Arms Act is set aside and he is acquitted of all the charges. 19. However, in view the provisions of Section 437A of the Code of Criminal Procedure, the appellant no. 1 Tamachi is directed to forthwith furnish a personal bond in the sum of Rs. 50,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon'ble Apex Court. 20. In view of the aforesaid, the appeal stands allowed.