Rajasthan High Court - Jodhpur
Pramod Shrivastav & Anr vs State on 30 November, 2017
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 787 / 2015
1. Pramod Shrivastav S/o Shri Ram Chandra Shrivastav, R/o-
Kishnudaspur, P.S. Karipur, Distt. Sultanpur (Uttar Pradesh).
2. Sher Bahadur S/o Shri Indra Singh Jeet Singh Thakur, R/o-
Dhorhua, P.S. Haswar, Distt. Ambedakar Nagar (Uttar Pradesh).
(Presently lodged in Central Jail, Udaipur).
----Appellants
Versus
The State of Rajasthan.
----Respondent
_____________________________________________________
For Appellant(s) : Mr.Deepak Menaria.
For Respondent(s) : Mr.Rajesh Bhati, PP.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment 30/11/2017 The case at hand is yet another classic example of terror of accused having subdued the victims to such an extent that they did not muster courage to give direct evidence against the accused but yet the circumstances have proved strong enough so as to negate the ill effects created by the accused in the minds of the victims and have allowed the truth to prevail.
Facts in brief are that the S.H.O., P.S. Hiran Magri, Udaipur received an information regarding gun shots having been fired by some unknown persons near Krishi Mandi Savina, Udaipur. Acting upon the same, police team reached to the place of incident and apprehended two assailants who had been nabbed by the people present at the spot including Suresh Mehta, Nemi Kumar, Chandra (2 of 7) [CRLA-787/2015] Prakash etc. The two injured Pawan Chittora and Suresh Mehta who received fire arm injury at the hands of the two assailants, were taken to the American Hospital for treatment. Kailash Chandra, S.H.O. recorded the parcha bayan of Pawan at the hospital on 6.11.2012 at 8:05 PM. Pawan alleged in his statement that he was having a shop 'no.12' bearing the title 'Kesariya Bhanwarlal Ambalal' in Krishi Mandi Savina. At about 6:30 PM, he was standing at the neighbouring shop named 'Mahaveer Prasad Pawan Kumar Mehta' and was talking to Suresh Mehta. Shyamji Sindhi who collects sale proceeds of the traders, came around on a motorcycle for collecting money from Suresh Mehta. At that time, 2 assailants; one being tall with dark complexsion and the other one being of medium height came there and tried to snatch the money bag from Shyamji. Pawan tried to intervene and save Shyamji. The assailant who was said to be of medium height, fired a katta at Pawan which hit his abdomen. Meanwhile, the accused continued their efforts to snatch the money bag from Shyamji. Pawan raised a hue and cry on which Suresh Mehta, Chandra Prakash, Nemi Kumar came to the scene of occurrence. The assailant having the Katta fired another gunshot which hit on the abdomen of Shyamji. The assailants were overpowered by Suresh Mehta, Chandra Prakash, Nemi Kumar and some police personnel who had reached at the scene of occurrence. Pawan was taken to the American hospital for treatment. On the basis of this parcha bayan, an FIR No.542/2012 was registered at the P.S. Hiran Magri, Udaipur for the offences under Sections 307 and 397/34 IPC and (3 of 7) [CRLA-787/2015] Section 3(25) of the Arms Act and investigation commenced. After investigation, the appellants herein were charge-sheeted for these offences. The trial Court framed charges against the appellants for the offences under Sections 397/34 and 307/34 IPC and Section 3(25) of the Arms Act. The appellants pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses in support of its case. It is relevant to mention here that though the material prosecution witnesses viz., PW1 Pawan Chittora - the first informant, PW2 Shyamji, PW3 Lokesh Gawaria, PW4 Chandra Prakash and PW5 Nemi Kumar unequivocally gave evidence about the incident but strangely enough they refused to identify the accused appellants as the assailants even though the accused had been overpowered and apprehended at the spot right at the time of the incident. After initial round of the prosecution evidence being recorded, the trial Court questioned the accused under Section 313 Cr.P.C. The accused denied the prosecution allegations but did not choose to lead evidence in defence. At this stage, the Presiding Officer realised that the accused had also suffered injuries in a very same incident but by inadvertence, their injury reports could not be proved. On this, the evidence of the concerned doctor was recorded by exercising powers under Section 311 Cr.P.C. Apart from offering a bald denial, the accused did not offer any explanation whatsoever for the injuries suffered by them in the incident. The trial Court, proceeded to extract the admissible parts of evidence from the statements of the hostile prosecution witnesses and the admissions made by them in their (4 of 7) [CRLA-787/2015] cross examination and proceeded to convict and sentence the accused appellants as below vide the impugned judgment dated 1.8.2015 :-
Conviction Sentence
S.307 IPC 7 years' SI.
S.397/34 IPC 7 years' RI & fine of Rs.5000/- in default
6 months' SI.
S.3(25) of Arms Act 1 year's SI & fine of Rs.500/- in default 15 days' SI.
No pertinent direction was given by the trial Court regarding the manner in which the sentences would operate i.e. whether concurrently or consecutively. Being aggrieved of their conviction vide judgment dated 1.8.2015 the accused appellants have preferred the instant appeal.
Learned counsel Shri Deepak Menaria vehemently urged that the conviction of the appellants as recorded by the trial Court for the offences under Sections 307 and 397 IPC is absolutely illegal and unjustified. He contended that as all material prosecution witnesses turned hostile at the trial and did not identify the appellants as the assailants, there remains no evidence worth the name on the record of the case so as to hold the appellants guilty of the offences. In the alternative, he contended that the appellants were arrested on the very day of incident i.e. 6.11.2012 and are in custody since then. They have suffered imprisonment of almost 5 years. Thus, he urged that in case, the Court is not satisfied with the arguments on merits, the sentences awarded to the accused should be suitably reduced.
(5 of 7) [CRLA-787/2015] Per contra, learned P.P. vehemently opposed the submissions advanced by the appellants' counsel. He contended that in their attempt to loot the money bag held by Shyamji, the appellants indulged in a virtual terrorist like activity by mercilessly firing gun shots at the innocent businessmen in the broad day light in a busy area like Krishi Mandi. When the attempt of looting was resisted, the accused persons fired gun shots hitting two persons in the process and causing them life threatening injuries in the process. Thus, he implored the Court to reject the appeal.
I have given my thoughtful consideration to the arguments advanced at the Bar and have gone through the impugned judgment as well as the original record.
True it is that the material prosecution witnesses viz., PW1 Pawan Chittora - the first informant, PW2 Shyamji, PW3 Lokesh Gawaria, PW4 Chandra Prakash and PW5 Nemi Kumar did not support the prosecution story on numerous aspects and were declared hostile. Apparently the said conduct of the witnesses appears to be the outcome of the fear created in their minds by the evil aura of the accused persons. PW8 Bhagwan Lal, ASI categorically stated that he recovered a pistol and empty cartridges from the possession of Pramod Srivastava and a magazine from the possession of Sher Bahadur. No significant cross examination was done from this witness. Thus the recovery of the fire arm and ammunition stand duly proved. The witness PW11 Kailash Chandra, S.H.O., P.S. Hiran Magri stated that he received an information that gun shots had been fired at Krishi (6 of 7) [CRLA-787/2015] Mandi, Savina on which he reached the spot and saw two persons (i.e. Pramod and Shyamji) lying down in bleeding condition. They were taken to the hospital. The local public had nabbed the assailants who were arrested at the spot and fire arm & ammunition etc. were recovered from them. No material cross examination was made from the witness on this material aspect. The witness was recalled and the injury reports of both the accused were got proved from him as well as doctor PW12 Dr.Anupam Johari. When the accused were examined under Section 313 Cr.P.C., they did not offer any kind of explanation for the injuries found existing on their person at the time of their arrest.
Despite the material prosecution witnesses having turned hostile at the trial, a few facts are virtually admitted and amply proved from the evidence available on record (1) that the assailants tried to loot the money bag being held by Shyamji, (2) that upon resistance being offered, one of the two assailants fired gun shots hitting two persons namely, the first victim and Shyamji in the process, (3) that the accused assailants (appellants) were apprehended right at the spot and were found having injuries on their persons which they failed to explain, (4) that a pistol with empty cartridges was recovered from the accused Pramod Srivastava and a magazine was recovered from the accused Sher Bahadur.
(7 of 7) [CRLA-787/2015] In view of these facts, I am of the firm opinion that even though the material prosecution witnesses faltered on the aspect of identification of the accused in their evidence but still there is sufficient material and evidence providing proof beyond all manner of doubt so as to satisfy the Court that the appellants were indeed the assailants who fired gun shots upon the two injured in their dare devil like attempt to loot the money bag from Shyamji. The gun shots were fired in the process of attempted looting and as such, the accused persons were rightly convicted by the trial Court for the offences under Sections 307 and 397/34 IPC and Section 3/25 of the Arms Act. The accused indulged in heinous and a virtually terrorist like activities of firing gun shots and injuring innocent businessmen with the intention of looting and as such, no leniency is warranted in the sentences awarded to the accused as well. As a matter of fact, this Court feels that the sentences awarded by the trial Court are rather on the lenient side.
Consequently, finding no shortcoming or infirmity either factual or legal, in the impugned judgment dated 1.8.2015 passed by the learned Additional Sessions Judge No.1, Udaipur, this appeal is hereby rejected as being devoid of any merit. However, it is clarified that the sentences awarded to the appellants for different offences shall run concurrently.
Record be returned forthwith.
(SANDEEP MEHTA)J. S.Phophaliya/-