Rajasthan High Court - Jaipur
Hariom@Laxmi Kant vs State Of Rajasthan Through Pp on 21 August, 2019
Author: Goverdhan Bardhar
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 1050/2014
Hariom@ Laxmi Kant Son of Chhotelal, by caste Meena, Resident
of Chimni, Police Station Kumher, District Bharatpur (Raj.)
(At present in Central Jail Sewar, Bharatpur)
----Accused/Appellant
Versus
State of Rajasthan Through PP
----Respondent
For Appellant(s) : Mr. S.S. Sunda, Advocate For Respondent(s) : Mr. Javed Choudhary for the State HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR JUDGMENT 21/08/2019 Goverdhan Bardhar,J Challenge in the instant criminal appeal has been made by the appellant to the judgment of conviction and sentence dated 16.10.2011 passed by the Court of learned Additional Sessions Judge No.1, Bayana (Bharatpur) [for short 'the learned trial Court'] in Sessions Case No.35/2014 (20/13), State of Rajasthan vs. Hariom @ Laxmi Kant, whereby the learned trial Court has convicted and sentenced the accused-appellant as under:-
U/s.302/34 IPC:
Life imprisonment and fine of Rs.10,000/-, in default of payment of fine to further undergo one year simple imprisonment.(Downloaded on 06/06/2021 at 05:58:56 PM)
(2 of 11) [CRLA-1050/2014]
U/s.394 IPC:
Ten years rigorous imprisonment and
fine of Rs.10,000/-, in default of payment of fine to further undergo one year simple imprisonment.
U/s.429/34 IPC:
One year simple imprisonment and fine of Rs.1,000/-, in default of payment of fine to further undergo two months simple imprisonment. U/s.120-B IPC:
Life imprisonment and fine of Rs.10,000/-, in default of payment of fine to further undergo one year simple imprisonment.
All the sentences were ordered to run concurrently.
Facts of the case in nutshell are that PW-4 Sukkan submitted a written report (Ex.p1) to the SHO, Police Station Ucchain (Bharatpur) to the effect that on 17/18.12.2012 in the night at about 11:30 p.m., he along with his wife Raviya and children were sleeping in village Adhiyari. The goats were tied in 'patore'. After hearing the voice of bleating of goats, he woke up and saw that 4-5 unknown thieves were indulging in untying the goats. On making hue and cry, 2-3 thieves ran away and in the meanwhile out of the two, one opened fire which hit on the chest of his wife. He along-with villagers took his wife to Ucchain hospital where she was declared dead.
On the basis of aforesaid written report (Ex.P1) an FIR No.267/2012 (Ex.P2) was (Downloaded on 06/06/2021 at 05:58:56 PM) (3 of 11) [CRLA-1050/2014] registered at Police Station Ucchain, District Bharatpur for the offences under Sections 380, 511 and 302 IPC. The police after investigation submitted charge-sheet against the accused appellant and co-accused Naima @ Naimchand for the offences under Sections 393, 302, 429 and 120B IPC in the Court concerned and investigation against co-accused Dayaram and Shamsu was kept pending under Section 173(8) Cr.P.C.
Learned trial court framed charges against the accused appellant for the offences under Sections 120-B, 302, 302/34, 394 and 429/34 IPC. The accused appellant denied the charges and claimed trial. The prosecution in support of its case recorded statements of twenty witnesses and twenty six documents were got exhibited. Thereafter, the accused/appellant was examined under Section 313 Cr.P.C. In defence the accused appellant did not examine any witness but two documents were got exhibited. The appellant aggrieved and dissatisfied with the impugned judgment/order of conviction and sentence passed by learned trial court dated 16.10.2014 has preferred this criminal appeal.
Learned counsel for the accused appellant has argued that learned trial Court has committed serious error of law as well as of facts in convicting and sentencing the accused-
appellant for the offences under Section 302/34, (Downloaded on 06/06/2021 at 05:58:56 PM) (4 of 11) [CRLA-1050/2014] 394, 429/34 and 120-B IPC. The prosecution has failed to prove the guilt of the accused- appellant beyond all reasonable doubt. The witnesses of the prosecution have suppressed the genesis of the occurrence and have not corroborated the story of the prosecution. Therefore, the prosecution witnesses cannot be treated as credible and reliable witnesses. The learned trial Court failed to consider that the alleged incident had taken place at about 11:30 p.m. in the dark. The complainant failed to give any description of accused-persons regarding their age, clothes wore by them at the time of incident and their physique. There are contradictions in the testimony of PW4 Sukkan. The learned trial Court failed to consider the statement of PW11 Shiv Kumar who deposed that before conducting test identification parade, the accused-appellant was shown at the police station. In such circumstances the identification parade conducted by the police loses its significance. The learned trial Court failed to consider the statement of PW8 Brijendra Tiwari. During investigation this witness was called to identify the accused persons but he refused to identify the accused, which is evident from the identification parade (Ex.P2). Similar statement was also given by PW9 Khyaliram.
On the other hand, the learned Public Prosecutor has supported the impugned judgment (Downloaded on 06/06/2021 at 05:58:56 PM) (5 of 11) [CRLA-1050/2014] and submitted that the impugned judgment calls for no interference. The learned Public Prosecutor has prayed for dismissal of the appeal.
Having heard the learned counsel for the parties, we have perused the impugned judgment and examined the record.
Autopsy (Ex.P14) on the dead body of Raviya (now deceased) was conducted on 18.12.2012 at 11:05 AM by the Medical Board in which Dr. Pushpendra Singh Jat was one of the member. The opinion given by PW10 Dr.Pushmendra Singh Jat about the cause of death of deceased Raviya is reproduced for ready reference as under:-
"1. All injuries are anti-mortem in nature.
2. Time since death is within 24 hours since the time of postmortem.
3. time of death is due to hemorrhagic shock leading to heart failure."
PW10 Dr. Pushpendra Singh Jat deposed that on 18.12.2012 he was posted as medical officer at Community Health Centre, Ucchain. On that day, on the application of police he conducted the autopsy (Ex.P14) on the dead body of deceased Raviya. The dead body was identified by Sukkan (PW4) and Sakoor (PW3). PW-10 deposed that there was a hole in front of chest which was 3 cm. Left to stomach in 3 rd inter castal space. Lower level of Scapula was 1.5 of diameter on left side. The cause of death of deceased Raviya was due to hemorrhagic shock leading to heart failure. (Downloaded on 06/06/2021 at 05:58:56 PM)
(6 of 11) [CRLA-1050/2014] PW4 Sukkan in examination-in-chief reiterated the averments made in the written report(Ex.P1). This witness deposed that the report (Ex.P1) was got written by the villagers and now he does not remember who wrote the report (EX.P1). It was dark and so he could not see that out of two thieves, who had opened fire on the person of Raviya but in torch light he identified one of the thief. PW4 deposed that in the police statement (Ex.D1) he could not mention his observation about the face of one of the thief.
PW1 Suresh Chand deposed that police seized one bullet vide seizure memo (Ex.P1) & prepared site plan(Ex.P2) and panchnama (Ex.P3). PW1 further deposed that Sukkan(PW4) did not say anything as to who had opened fire.
PW2 Ashok Kumar deposed that he knew Raviya. On hearing the sound of bullet they came out of their home. They saw Raviya lying was on the road. PW2 further deposed that he did not see the thieves.
PW3 Shakoor elder brother of complainant PW4 Sukkan deposed that at that time he was residing in Uchhain. At about 12:00 p.m. his brother reached Uchhain. When he reached the hospital, he found dead body of Raviya in the hospital. PW3 deposed that Sukkan (PW4) is illiterate and he got the report written from some other person in his presence.
PW5-Prem Prakash Sharma, deposed that in the presence of Pooran (PW6) a bullet was removed from the stomach of a male goat which was seized vide seizure memo (Downloaded on 06/06/2021 at 05:58:56 PM) (7 of 11) [CRLA-1050/2014] Ex.P1. The statement of this witness is corroborated by PW6- Pooran Chand.
PW7 Bhanu Prakash is witness of Panchnama (Ex.P3). He was told by Sukkan (PW4) that his wife had died by receiving bullet /fire shot. The dead body was covered with the cloth and he did not see any hole in the cloth. PW7 did not support the prosecution story and turned hostile.
PW8 Brijendra Tiwari, neighbour of PW4 Sukkan deposed that house of Raviya (now deceased) was 300 meter from his house. PW8 deposed that he did not see the injuries of Raviya (now deceased). Before he reached at the spot, the culprits had run away from the place of occurrence. He did not see the culprits. He did not hear the sound of fire. PW8 did not support the prosecution story and turned hostile.
PW9 Khyaliram, villager of PW4 Sukkan deposed that he did not see the thieves at the spot. He did not see injuries on the person of Raviya (now deceased). He did not see any thief untying goats. PW9 did not support the prosecution story and turned hostile.
PW11- Shiv Kumar, neighbour of PW4 Sukkan, is witness of test identification parade (Ex.P15). He deposed that before test identification he did not know Hariom (accused appellant) and before conducting test identification parade, the police showed him Hariom in the jail. PW11 deposed that he could not identify any person at the spot. He deposed that he could not see the faces of the thieves. Before proceeding to jail, the police personnel showed Hariom (Downloaded on 06/06/2021 at 05:58:56 PM) (8 of 11) [CRLA-1050/2014] (accused appellant) to him. Sukkan (PW4) did not go along- with him to the police station.
PW12 Amir Chand deposed that accused appellant was arrested vide arrest memo (Ex.P16).
PW13 Dr. Jitendra Kumar deposed that he had removed one bullet from the stomach of a male goat.
PW14 Devi Singh deposed that the police did not prepare site-plan in front of him. PW14 did not support the prosecution story and turned hostile.
PW15 Lekhraj deposed that on 14.02.2012 he was posted as Constable in Police Station Uchhain. On that date Hariom was arrested vide arrest memo Ex.P16. Lathi was recovered vide recovery memo Ex.P20. PW16 Unees Khan is also witness of recovery memo Ex.P20. PW15 and PW16 are also witnesses of site plan of recovery place Ex.P19.
PW18 Surendra Singh Yadav deposed that on 20.02.2013 he was posted as Sub Divisional Officer, Roopwas. The proceedings in connection with test identification parade were conducted from Brijendra Tiwari, Shivkumar and Sukkan. Sukkan had identified the accused appellant.
PW20 Bhojaram Jat deposed that on 18.12.2012 he was posted as SHO Police Station, Uchhain. PW20 deposed that Sukkan (PW4) submitted the written report (Ex.P1) before him. He recorded the statements of the witnesses under section 161 Cr.P.C. and recovered the articles. After investigation he submitted charge-sheet against the accused appellant.
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(9 of 11) [CRLA-1050/2014] The case was registered on the basis of written report (Ex.P1) submitted by complainant Sukkan (PW4) at Police Station Uchhain. In the written report (Ex.P1) it was alleged that unknown persons had tried to commit theft of goats by making attempt to untie and take away the goats. It was further alleged that the complainant had raised hue and cry. Upon this, 2-3 thieves ran away and one thief out of the two opened fire; which hit on the chest of Raviya (wife of complainant).
Complainant Sukkan was examined as PW4. PW4 deposed that one person opened fire which hit on the chest of Raviya (wife of complainant) due to which she died and the thieves ran away in the dark. PW4 further deposed that Ex.P10 is test identification parade report which was conducted at Bayana and he also identified accused Hariom in the Court. In cross-examination PW4 admitted that he submitted the written report (Ex.P1) which was got prepared by the villagers. He further deposed that due to the dark, he could not see who had opened fire but he could identify one of the accused. PW4 in cross-examination admitted that due to the darkness he could not see who had opened fire. Ex.P19 is recovery memo whereby at the instance of accused appellant stick (lathi) was recovered.
PW11-Shiv Kumar is witness of test identification parade report (Ex.P15). He deposed that he could not see the face of the accused. He admitted that prior to test identification parade, he saw Hariom in the police station. (Downloaded on 06/06/2021 at 05:58:56 PM)
(10 of 11) [CRLA-1050/2014] PW7 Bhanu Prakash and PW9-Khyali Ram could not identify the persons who had opened fire.
The prosecution case rests on the identification of the accused in the test identification parade and in the court by PW4 Sukkan- the complainant.
Since it was dark at the place of incident, the identification of appellant by the complainant is rendered doubtful without any corroboration. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime like recovery of articles which are the subject matter of the offence and the alleged weapons used in the commission of the offences. In the instant case, there is no evidence on record to show that accused was brought in a veiled condition to the Court to eliminate the possibility of the witness having seen the accused prior to the test identification parade.
The learned trial court based the verdict of conviction solely on the testimony of PW4-Sukkan and the identification of the accused appellant in the test identification parade. As discussed earlier, in the absence of any other evidence strengthening the prosecution case, conviction cannot be based solely on the identification of the accused regarding complicity of the appellant in the commission of offence and his identification by PW4 Shakkun. The prosecution has failed to prove the guilt of the accused appellant beyond reasonable doubt and in our view the conviction of the accused appellant for the aforesaid offences cannot be sustained and is liable to be set aside. Moreover, (Downloaded on 06/06/2021 at 05:58:56 PM) (11 of 11) [CRLA-1050/2014] no incriminating material was placed by the prosecution to connect the accused appellant with the crime. We are therefore, not persuaded to uphold the judgment impugned.
The appeal preferred by the appellant is allowed. The conviction of the appellant as ordered by the trial court is quashed and set aside. The appellant is acquitted of the charges framed against him. Appellant who is in custody, be set at liberty forthwith, if not required in any other case.
In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Hariom@ Laxmi Kant Son of Chhotelal is directed to furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount, before the Registrar(Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
(GOVERDHAN BARDHAR),J (SABINA),J
NK Sharma/48
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