Rajasthan High Court - Jodhpur
State vs Ujjawal Alias Kalu Kaushik And Anr on 25 October, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:43416-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 612/2003
State of Rajasthan
----Appellant
Versus
1. Ujjawal alias Kalu Kaushik S/o Suresh Kaushik, resident of
Chandra-Shekhar Aazad Nagar, Bhilwara.
2. Mohanlal S/o Bhura Lal, b/c Bhambhi, R/o 3-H-46, Chandra
Shekhar Aazad Nagar, Bhilwara.
----Respondent/Accused
For Appellant(s) : Mr.N.K.Gurjar, G.A.-cum-AAG assisted
by Mr.Yogendra Singh Charan, Adv.
For Respondent(s) : Mr.R.S.Chundawat, Adv.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN Judgment Judgment Reserved on : 12.09.2024 Judgment Pronounced on : 25.10.2024 <><><> [Per Hon'ble Mr. Justice Munnuri Laxman] :
1) The present appeal assails the judgment of acquittal dated 23.09.2002 passed by the learned Additional Sessions Judge No.1, Bhilwara on the file of Sessions Case No.30/2001, therein and thereby, the respondents-Ujjawal @ Kalu and Mohan Lal were acquitted of the charges under Sections 302, 323, 324, 120-B of IPC and under Section 302/34, 323, 324/34, 120-B of IPC respectively.
2) The present appeal is at the instance of the State. (Downloaded on 25/10/2024 at 10:01:02 PM) [2024:RJ-JD:43416-DB] (2 of 10) [CRLA-612/2003]
3) For the convenience, accused-Ujjawal @ Kalu is referred as A-1 and accused-Mohan Lal is referred as A-2, who are the respondents in the present appeal.
4) The case of the prosecution is that Mohsin Khan (PW-2) and Sandeep Mehta (PW-9) were friends. On 31.03.2001, Sandeep Mehta parked his cycle near the Dairy Booth of Chandra Shekhar Aazad Nagar of Bhilwara. At 7 pm when they came back to the place of parking, they found that the cycle was punctured with nails. The complainant-Mohsin Khan (PW-2) suspected the role of Ujjawal @ Kalu (A-1) and Narayan Gurjar (absconder), who were sitting by the side of the cycle. In this regard, there was an exchange of heated words and a fight broke out. They allegedly assaulted. Meanwhile, Sazid (deceased), Sakir (PW-7), who is brother of the deceased, and Abhishek (PW-10) were passing through the place of incident and other persons Aslam (PW-3) and one Rajan were also passing through the place of incident. On seeing A-1 and Narayan assaulting Mohsin Khan and Sandeep Mehta, Sazid allegedly tried to interfere. In the meanwhile, A-1 allegedly went to his home and brought knife and stabbed Sazid (deceased) beneath the ribs. A-2, who was holding sword in his hand, also caused the sword injury to the deceased. Immediately, Sakir (PW-7) with the help of Rajan shifted the deceased to hospital on the motorcycle of Rajan. Mohsin Khan (PW-2), who also suffered injuries in the incident, lodged the report under Exhibit-P/5. Basing on the Exhibit-P/5, the FIR No.107/2001 was registered at Police Station Pratap Nagar, Bhilwara under Exhibit- P/20 for offence under Sections 147, 148, 149, 323, 307 of IPC. (Downloaded on 25/10/2024 at 10:01:02 PM) [2024:RJ-JD:43416-DB] (3 of 10) [CRLA-612/2003]
5) The statement of the deceased was recorded. The deceased while undergoing treatment succumbed to the injuries in the midnight of 11/12.04.2001. After the deceased died, the offences were altered to Section 302, 323, 324, 120-B of IPC. Subsequently, inquest was held on the dead body and the scene of offence was examined. The postmortem was conducted. Basing on the statement of the deceased, A-1 and A-2 were arrested. On the disclosure statement of A-1 under Exhibit-P/24, knife was seized from his house under Exhibit-P/12 and on the basis of disclosure statement of A-2 under Exhibit-P/27, sword under Exhibit-P/8 was recovered. The police also seized the shirt of the deceased under Exhibit-P/6. Subsequently, accused were remanded to judicial custody. The sword and knife seized from A-1 were sent to the Forensic Science Laboratory. Subsequently, a chargesheet was filed against A-1 and A-2 for the offences under Sections 302, 323, 341, 324, 120-B of IPC and accused Narayan was declared as absconder. On committal, the Sessions Judge has taken the cognizance against A-1 and A-2 for the offences under Sections 302, 323, 324, 120-B of IPC read with Section 34 of IPC. Charges were also framed for the said offences against both the accused.
6) The prosecution in support of its case examined at all 25 witnesses and exhibited documents Exhibit-P/1 to P/31. In defence, accused did not examine oral evidence but exhibited documents Exhibit-D/1 to D/3.
7) The trial court on appreciation of evidence on record found that no offence is made out against both the accused. Consequently, they were acquitted of the said charges. Hence, the present appeal by the State.
(Downloaded on 25/10/2024 at 10:01:02 PM) [2024:RJ-JD:43416-DB] (4 of 10) [CRLA-612/2003]
8) Heard learned Additional Government Counsel-cum-AAG appearing for the State and learned counsel appearing for the respondents.
9) The learned Additional Government Counsel-cum-AAG has vehemently submitted that the trial court has discarded the direct eyewitness account i.e. PW-7 Sakir, whose evidence is sterling in nature and his presence at scene of offence was also referred in the FIR. His evidence was discarded only for the reason of his relation with the deceased. According to him, when the presence of PW-7 Sakir is proved beyond doubt, his evidence ought to have been relied upon by the learned trial court to convict the accused.
10) The arguments of learned Additional Government Counsel is also that when there is a direct evidence of eyewitness account, some lapses on the part of the prosecution and investigation in bringing on record the FSL report relating to knife and sword of A- 1 should not have been taken as a doubting circumstance to the sterling nature of evidence of PW-7 Sakir. The evidence of PW-7 without aid of FSL Report, which could be the additional circumstance to support the case of the prosecution, could have been made foundation for the conviction of A-1 and A-2. According to learned Additional Government Counsel, acquittal is based on the lapses without considering the eyewitness account, is unsustainable. He prayed to reverse the acquittal of the accused into conviction.
11) The learned counsel appearing for the respondents- accused has submitted that the First Information Report lodged by PW-2 Mohsin Khan clearly shows that the deceased-Sazid, PW-7 Sakir and PW-10 Abhishek were together passing through the (Downloaded on 25/10/2024 at 10:01:02 PM) [2024:RJ-JD:43416-DB] (5 of 10) [CRLA-612/2003] place of incident. While passing through, they allegedly found that there was scuffle between PW-2 Mohsin Khan and PW-9 Sandeep Mehta with the accused. In the said scuffle, they were allegedly assaulting PW-2 and PW-9 and the deceased tried to interfere. In such assault, A-1 went to his house and allegedly brought the knife and stabbed the deceased. Whereas, the substantive evidence of PW-7 Sakir shows that they were not with the deceased when the deceased tried to make interference in the incident. According to PW-7 Sakir, he and PW-10 Abhishek were sitting together at a juice shop and two persons allegedly came to them and informed the incident. They rushed immediately to the scene of offence and found A-1 was stabbing the deceased with the knife and A-2 was also found stabbing with the sword and the other accused were attacking the deceased. There is a contradiction between the First Information Report and the substantive evidence of PW-7 Sakir. PW-2 Mohsin Khan, who lodged the written report, did not support the case of the prosecution. In fact, he was injured in the incident. The entire genesis of the incident was on account of some quarrel in between PW-2 Mohsin Khan and PW-9 Sandeep Mehta one side and the accused on other side. Such crucial witnesses have not supported the prosecution case.
12) The learned counsel for the respondents-accused also submitted that the deceased died after 12 days of the incident. According to the postmortem report, only one stab injury was found on the body of the deceased, which was beneath the ribs and the same was causative factor for the death of the deceased. There is another injury of laceration, which is caused with the (Downloaded on 25/10/2024 at 10:01:02 PM) [2024:RJ-JD:43416-DB] (6 of 10) [CRLA-612/2003] blunt object. The claim of PW-7 Sakir that A-2 also attacked the deceased with sword and such statement creates a doubt over the actual presence of A-2 at the place of incident. PW-7 and P-10 went to place of incident on information and the witnesses could not able to say the distance between the place where they were sitting and the place of incident so that there was probability of the witnesses reaching the place of incident on information about quarrel between the deceased and the accused. The injury found on the body of the deceased was only one injury, which could have been caused before PW-7 Sakir could be reached to the place of incident.
13) The further contention of learned counsel for the respondents-accused is that according to PW-23 Shaukat Ali, the Investigating Officer, he recorded the statement of deceased when he was in hospital and basing on such statement only, the accused were arrested. However, the prosecution neither exhibited the statement of the deceased under Section 161 Cr.P.C. nor was able to prove the same. The concealment of such important piece of evidence creates doubt over the case set up by the prosecution.
14) The learned counsel for the respondents also submitted that the police claimed to have seized the shirt of the deceased under Exhibit-P/6. According to PW-7 Sakir, he does not know the details where-from the shirt was seized. He claimed to have stated that he signed Exhibit-P/6 in hospital, whereas the report Exhibit- P/6 is not clear where the seizure was effected. However, a close scrutiny of such a seizure memo shows that the seizure was effected on the production of shirt by PW-2 Mohsin Khan but he has not supported the production of such shirt. The witnesses to (Downloaded on 25/10/2024 at 10:01:02 PM) [2024:RJ-JD:43416-DB] (7 of 10) [CRLA-612/2003] the seizure are also not able to support the case of the prosecution with regard to actual place of seizure. The knife recovered at the instance of A-1 was sent to the Forensic Science Laboratory along with shirt of the deceased but the FSL report has not produced. Such a report could have been one of the additional circumstance, which could have corroborated the testimony of PW-7 Sakir, whose evidence was not found to be sterling in character. The trial court also discarded the evidence of of PW-7 in the absence of such a corroborative evidence. Such findings of the trial court cannot be interfered in the appeal on the ground that there is possibility of other view basing on such evidence. According to learned counsel for the respondents, the evidence relied upon by the prosecution has not been clearly established the involvement of the accused in crime. Therefore, according to him, the appeal is liable to be dismissed.
15) We have considered the rival submissions advanced before us and carefully perused the material available on record.
16) As seen from the entire case of the prosecution, apart from PW-7, the prosecution also claimed the presence of other eyewitnesses, particularly PW-2 Mohsin Khan, who is the person responsible for the genesis of the incident, PW-3 Aslam, PW-10 Abhishek and one Rajan. The other eyewitnesses except PW-7 Sakir have not supported the prosecution case. The initial FIR under Exhibit-P/5 shows that PW-7 Sakir, PW-10 Abhishek were with the deceased from the beginning. Whereas, the substantive evidence of PW-7 Sakir before this Court shows that they were not with the deceased when the incident commenced upon intervention of deceased with the quarrel among PW-2 Mohsin (Downloaded on 25/10/2024 at 10:01:02 PM) [2024:RJ-JD:43416-DB] (8 of 10) [CRLA-612/2003] Khan, PW-9 Sandeep Mehta and the accused. He reached the place of incident on the information furnished by two persons when he along with PW-10 Abhishek were sitting at the juice shop, which is not at a visible distance. On information, he rushed to the scene and found that A-1 was stabbing the deceased with the knife and A-2 was also stabbing with the sword. Looking at the PMA report only one injury with the sharp-edged weapon was found on the body of the deceased, which is causative factor for the death of the deceased. There is no sword injury on the body of the deceased as claimed by PW-7 Sakir. However, there is a lacerated injury, which could not be possible with the sword when the stabbing was done with the sword according to PW-7. The contradiction in between First Information Report and the substantive evidence of PW-7, and absence of any sword injury on the body of the deceased renders the evidence of PW-7 not of sterling character. Apart from that, PW-7 Sakiar is close relative i.e. brother of the deceased. This makes his evidence requires more care and caution while placing reliance. There is no doubt that evidence of relative witness cannot be discarded solely on the ground that he was close relative. However, if such evidence is of not sterling character and there are circumstances, which raises doubt over the presence of such witness from his evidence, then definitely such an evidence alone cannot be safe to place reliance in the absence of any corroborative materials.
17) The evidence of PW-23 Shaukat Ali shows that he recorded the statement of the deceased in hospital, which could be the best piece of evidence, which falls under Section 32 of the Indian Evidence Act, which could have been one of the corroborating (Downloaded on 25/10/2024 at 10:01:02 PM) [2024:RJ-JD:43416-DB] (9 of 10) [CRLA-612/2003] circumstances to the sole eyewitness account of PW-7 Sakir but the prosecution neither exhibited the statement of the deceased nor was able to prove the same.
18) There was other material which could have helped the prosecution to corroborate the eyewitness account i.e. the seizure of knife from A-1. The evidence of the Investigating Officer shows that the knife of A-1 was seized, which contained blood stains. The shirt of the deceased and knife were sent to the Forensic Science Laboratory. However, the prosecution failed to bring the FSL report on record. It appears that causal approach has been done by the Investigating Agency and the prosecuting agency. Apart from that, the Presiding Judge also failed to have control over the trial. When the prosecution evidence was mistracking and certain important evidence, which could have helped the court to come at just decision, had not been brought on record, the role of the judge could have been more participatory in order to bring the relevant piece of evidence on record in order to render effective judgment, which would help the parties before them. This role has been derelicted by the Sessions Judge also, while recording the evidence. On account of such approach of the prosecution, Investigating Agency and the role of judge, the important piece of evidence, which could have been helpful for the prosecution to fortifies case by placing corroborative circumstances to the eyewitness account, due to such lapses, the accused got the benefit of acquittal. Even, in the appeal also, no efforts have been made to bring such an evidence before the Court, which could have overturned the findings of the trial court and could have helped only one plausible view with regard to guilt of the accused. (Downloaded on 25/10/2024 at 10:01:02 PM)
[2024:RJ-JD:43416-DB] (10 of 10) [CRLA-612/2003] In the absence of such a corroborative evidence, the sole testimony of PW-7 Sakir, whose evidence was of not sterling character and suffered from contradictions and creating some doubt over his actual time of reach to the place of incident, requires corroborative piece of evidence. If such evidence is not there, basing on the evidence of PW-7 alone, two plausible views are possible. The view taken by the trial court is also plausible. The other view of involvement of the accused could be plausible. In dealing with the appeal against acquittal, where the view taken by the trial court is also plausible from the evidence on record, merely because the other view is plausible, this Court cannot interfere in the impugned judgment of acquittal.
19) In the result, the criminal appeal being devoid of merit is hereby dismissed.
(MUNNURI LAXMAN),J (DR.PUSHPENDRA SINGH BHATI),J. NK/-
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