Rajasthan High Court - Jaipur
Jaipur Vidhut Vitran Nigam Ltd And Anr vs State Of Rajasthan And Anr ... on 17 April, 2023
Author: Ashok Kumar Jain
Bench: Ashok Kumar Jain
[2023/RJJP/006884]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 305/2015
1. Jaipur Vidhut Vitran Nigam Ltd through Officer-In-Charge,
Executive Engineer, JVVNL, Rajgarh, Alwar
2. Naval Kishore Soni S/o Nathu Ram R/o Satyanarayan Ji Gali
Malkhera Bazar Rajgarh District Alwar
----Appellant
Versus
1. State Of Rajasthan, through PP
2. Mahesh Chand S/o Ganpat Ram, R/o Moonpur P.S. Rajgarh,
Dist. Alwar
----Respondent
Connected With
S.B. Criminal Appeal No. 808/2015
State Of Rajasthan, through PP
----Appellant
Versus
Mahesh Chand S/o Ganpat Ram, aged about 35 years, R/o
Moonpur P.S. Rajgarh, Alwar
----Respondent
For Appellant(s) : Mr. Shantanu Gupta for
Mr. Bipin Gupta
For Respondent(s) : Mr. B.L. Nasuna, Dy.GA
Mr. Mahesh Chand, in person
HON'BLE MR. JUSTICE ASHOK KUMAR JAIN
Order
Date of Reserve:- 27/03/2023
Date of Pronouncement:- 17/04/2023
Aforesaid two appeals, preferred under proviso to Section
372 Cr.P.C. and 378(4) Cr.P.C. respectively, arising out of order of
acquittal dated 23.12.2014 in Sessions Case No. 32/2014 titled as
State of Rajasthan Versus Mahesh Chand passed by learned
Additional Sessions Judge, Rajgarh, District Alwar whereby
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[2023/RJJP/006884] (2 of 10) [CRLA-305/2015]
respondent accused-Mahesh Chand was acquitted from charge
under Sections 332, 333 and 353 IPC.
The fact of the matter is that on 17.07.2008, Vigilance team
of Jaipur Vidhut Vitran Nigam Ltd. (JVVNL) visited the house of
non-consumer, Mahesh Chand S/o Ganpat, and found that illegal
taping was affixed, thus he was found to be indulged in electricity
theft. Consequently, search and seizure were conducted on the
spot; suddenly Mahesh Chand picked up a wooden stick and
attacked the departmental employee, Naval Kishore Soni with an
intention to cause life threatening injuries resulting into fracture of
his bone near eye. The doctor had opined that there was a chance
of brain hemorrhage which might result into death of employee.
On the basis of written complaint (Ex.P-5) an FIR bearing No.
239/2008 (Ex.P-6) was lodged and investigation was conducted.
Thereafter, charge-sheet was filed under Sections 332, 333 and
353 of IPC against present respondent-accused and same was
committed for trial before learned Additional Sessions Judge,
Rajgarh, District Alwar.
Learned Additional Sessions Judge had framed charges under
Sections 353, 332 and 333 IPC and during trial examined as many
as 17 witnesses produced by the prosecution and also exhibited
documents (Ex.P-1 to Ex.P-15). After examination of respondent
accused under section 313 Cr.P.C., the accused was permitted to
be examined as defence witness (DW-1) under section 315 of
Cr.P.C. After hearing the parties, learned trial court had acquitted
respondent-accused from charges framed against him.
Learned counsel for JVVNL and learned Public Prosecutor
submitted that as many as 17 witnesses were produced to prove (Downloaded on 11/11/2023 at 04:57:33 PM) [2023/RJJP/006884] (3 of 10) [CRLA-305/2015] the case of prosecution which included injured, eye-witnesses, official witnesses, investigating officer and medical officer along with radiologist but learned trial court without appreciation of evidence acquitted the respondent-accused. He further submitted that learned trial court failed in appreciating the fact that the incident was admitted by DW-1 himself in his cross-examination and same was supported by all witnesses produced by prosecution. He further submitted that prosecution witnesses in unequivocal terms had stated that respondent-accused assaulted and attacked the vigilance team so as to deter them from performing the official duty. He further referred the statement of injured along with other persons present on the spot to prove the fact that it was respondent-accused who attacked the injured and there was no quarrel or fight prior to that. He further submitted that trial court had failed in appreciating the evidence available on record which is perverse and not in accordance with law. It is further submitted that this is a fit case wherein interference in the order of acquittal is thoroughly warranted. He further submitted that a serious injury was caused to the injured and there was no justification offered by respondent-accused. It is submitted on behalf of JVVNL that after the discovery of theft, a case under the Electricity Act was registered and same was compounded by respondent-accused which clearly established the fact that respondent-accused had committed electricity theft and compounded the offences thereafter. Learned counsel for appellant while relying upon the judgment in case of Mohar & Anr. Versus State of UP (2002) 7 SCC 606, State of U.P. Versus Naresh & Anr. (2011) 4 SCC 324 and Kalabhai Hamirbhai Kachhot (Downloaded on 11/11/2023 at 04:57:33 PM) [2023/RJJP/006884] (4 of 10) [CRLA-305/2015] Versus State of Gujarat (2021) Online (SC 347) submitted that there was no reason to discredit the deposition of injured witness but learned trial Court had failed in appreciating the deposition of injured. He further submitted that respondent- accused had also registered a cross FIR in the matter but a negative FR was submitted which was finally accepted and a petition of respondent-accused under Section 482 Cr.P.C. was also dismissed on 11.05.2017, copy of which is submitted for perusal. At the end, he submitted to allow the appeal and convict and sentence respondent-accused adequately.
Aforesaid contentions were opposed by respondent accused himself as he was present in person but when asked for assistance of lawyer he had chosen not to seek assistance and further made a written submission. The main contention of respondent-accused was that the entire case was false as the vigilance team which consisted of police personnel had beaten respondent-accused and thereafter falsely framed respondent-accused in the matter. He further referred the discrepancies in the statements of witnesses and submitted that these statements were not reliable at all. It was further submitted that several proceedings/complaints were made by the respondent-accused raising the grievance against JVVNL and orders were passed against JVVNL. At last, he submitted that he was unnecessarily been targeted and framed by the police and therefore learned trial court had rightly acquitted him from the charges.
Heard learned counsel for appellant, learned Public Prosecutor and respondent-accused present in person. Also (Downloaded on 11/11/2023 at 04:57:33 PM) [2023/RJJP/006884] (5 of 10) [CRLA-305/2015] perused the material available on record and the judgments of the Hon'ble Supreme Court as cited by learned counsel for appellants.
There are two appeals, one is filed under proviso to Section 372 Cr.P.C. by JVVNL and injured in joint manner whereas another appeal is preferred by State under Section 378(4) Cr.P.C. wherein leave was granted on 04.09.2015. When we look at the criminal appeal No. 305/2015, appellant No.1 is JVVNL i.e. electricity provider company which does not fall in the definition of victim as provided under Section 2(wa) of Cr.P.C. Hence, appeal filed on behalf of JVVNL is not maintainable rather a leave to appeal under Section 378(4) Cr.P.C. is maintainable. In this appeal itself, appellant No. 2 is Naval Kishore who is injured and covered under definition of victim wherefrom his appeal under proviso to Section 372 Cr.P.C. is maintainable. Leave is already granted to State appeal, thus the same is treated as appeal.
Since State appeal is also there, which conducted prosecution before learned trial Court, therefore State appeal is preferred over the appeal of others as same order of acquittal is under challenge in both the appeals.
Learned trial Court while referring the statements of PW-2 in para 8 of the judgment noted several discrepancies in his statement; thereafter recorded analysis of PW-1 in para 9, PW-10 in para 10, PW-4 in para 11, PW-5 in para 12, PW-6 in para 13. Thereafter from para 14 onwards, in para 17, statements of other witnesses were explained. In para Nos. 18 and 19, medical evidence was reproduced. In para 20, remaining witnesses including IO (PW-14) were discussed and in para 21, respondent accused was acquitted.
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[2023/RJJP/006884] (6 of 10) [CRLA-305/2015] The definition of judgment according to Merriam Dictionary is "the process of forming and opinion or evaluation by discovering and comparing." In common parlance, judgment is normally an opinion formed after careful consideration of evidence and facts after application of law. The basic part of judgment is analysis of deposition of witness viz-a-viz each and every fact as brought before the court (systematic analysis and evaluation of evidence). The manner of judgment herein indicated that an enough deposition of witness(es) was referred but same was not analyzed in proper manner. The fact of the matter is that the reasons for acquittal or dis-believing the testimony of witnesses are not clear from the bare perusal of the judgment. Thus, it is very difficult to know the reasons of acquittal and ground to disbelieve the statement of witnesses.
In case of Mohar & Anr. Versus State of UP (supra) the Hon'ble Apex Court laid down that the testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and had seen the occurrence by himself. Convincing evidence would be required to dis-credit injured witnesses and every discrepancy in the statement of witness cannot be treated as fact. It was also laid down in the case of State of U.P. Versus Naresh & Anr. (supra) that credibility of testimony of injured witnesses must be given due weightage and his presence cannot be doubted. In this judgment, the Hon'ble Apex Court while reiterating principles relating to appreciation of evidence in para 18 to 25, 30-31 has distinguished contradictions, inconsistencies, exaggeration and (Downloaded on 11/11/2023 at 04:57:33 PM) [2023/RJJP/006884] (7 of 10) [CRLA-305/2015] embellishment and laid down when they are material. Thus, it is clear that normal discrepancies are bound to occur in depositions of witnesses due to normal error of observation, error of memory due to lapse of time or mental condition such as shock or horror at the time of occurrence. Similarly in the case of Kalabhai Hamirbhai Kachhot Versus State of Gujarat (supra), the Hon'ble Supreme Court relied upon judgments of Mohar (supra) and Naresh (supra) has laid down that mere marginal variations in the statement of witnesses can be dubbed as pronouncement as the same may be elaborations of the statement made by the witness earlier.
Herein when we look at written complaint (Ex-P-5) then the injured was named as Naval Kishore whereas assailant was named as Mahesh Chand, except these two individuals present at the spot, the names of persons participating in raiding were also mentioned. Later on during investigation, similar type of statements under section 161 Cr.P.C. were recorded and some of them were exhibited in defence. The injured was examined as PW- 2 who clearly named present respondent-accused and specifically stated that Mahesh attacked on his eye with wooden stick due to which his eye got injured. He specifically exhibited his medical as Ex-P1. During the course of examination, nowhere it was asked whether this injury was caused by somebody else rather it was reported that this injury was inflicted by Mahesh only. Again, when we look at PW-1 (Nand Kishore) he again referred the name of Mahesh who attacked the injured and further no discrepancy was found in his cross examination. Similar was the statement of PW-3 (Kailash Chand) who again named present respondent-accused. (Downloaded on 11/11/2023 at 04:57:33 PM)
[2023/RJJP/006884] (8 of 10) [CRLA-305/2015] Even PW-4 (Ramesh), PW-5 (Ashok), PW-6 (Lala Ram), PW-8 (Subhash Chand), PW-9 (Manohar Lal), PW-10 (Tajvir Singh), PW- 11 (Charan Singh), PW-16 (Anil Kumar) and PW-17 (Jairam) had named the present respondent-accused Mahesh and clearly stated that Mahesh had attacked with a wooden stick. The cross examination on this point is not enough to contradict aforesaid identification of accused who inflicted injury on injured Naval Kishore. In defence, DW-1 Mahesh Chand was examined and he admitted the incident of 17-07-2008.
Herein aforesaid statement referred clearly indicated that it was Mahesh who attacked with wooden stick resulting into injury near the eye of PW-2, Naval Kishore. Naval Kishore was examined by PW-15 (Dr. R.D. Meena) who prepared the injury report (Ex.P-
1) and his/her opinion was kept reserved with respect to injury Nos.1 to 3 but after x-ray which was conducted under the supervision of PW-12 (Dr. Ravi Mathur), one of the injuries i.e. injury No.3 was found to be a fracture of nasal bone and opined as grievous.
Herein when we perused the aforesaid statement along with the statement of Investigating Officer (PW-14), one thing is quite clear that only present respondent-accused was named as assailant or attacker and except present respondent-accused, no other individual had attacked Naval Kishore though most of the witnesses including injured referred that one injury was caused from wooden stick near eye resulting into a fracture of nasal bone. The fact of the matter is that injured along with eye-witnesses had clearly deposed in favor of prosecution but learned trial Court failed to appreciate the fact and discredited the entire statement (Downloaded on 11/11/2023 at 04:57:33 PM) [2023/RJJP/006884] (9 of 10) [CRLA-305/2015] without prudent analysis, therefore, the conclusion drawn by learned trial Court suffers from serious infirmities which can be termed as perversity. If any conclusion is drawn against depositions of witnesses, same is not permissible. Herein interfering in the order of acquittal cannot be treated as a situation wherein we as appellate Court can substitute our opinion on the opinion expressed by the learned trial Court. The question before us is that whether the analysis and evaluation of the evidence made by learned trial Court conforms to legal standards or not but herein on the face of it, it appears that the order suffers from proper reasoning and it lacks the grounds on which the conclusion of acquittal was recorded by the learned trial Court. In wake of a reasonable assessment of evidence on merits by this Court, we are duty bound to interfere into the findings as recorded by learned trial Court, as the findings are perverse and not in accordance with evidence of prosecution as produced in the matter. Here in this case, it was deposed by the witnesses of the prosecution that a Vigilance team, consisting of injured and witnesses were there for action against electricity theft and also to fill up the VCR, exhibited during trial. Since the injury as admitted and attributed upon respondent-accused is only one injury i.e. grievous injury, proved in ocular evidence of injured and other eye witnesses, therefore learned trial Court has failed in recording conviction of respondent-accused under Section 333 IPC. Herein, there is no defence as regard to present respondent-accused is concerned and in absence of defence as regard to involvement is concerned, the contentions raised by defence cannot be accepted. (Downloaded on 11/11/2023 at 04:57:33 PM)
[2023/RJJP/006884] (10 of 10) [CRLA-305/2015] Thus, the order of acquittal with regard to offence under Section 333 IPC is liable to be interfered by this Court.
Hence, appeal preferred by State of Rajasthan is allowed to the extent that order of acquittal dated 23.12.2014 under Section 333 IPC passed by learned trial Court is hereby set aside and respondent-accused Mahesh Chand s/o Ganpat Ram, R/o Moonpur P.S. Rajgarh, Alwar is held guilty under Section 333 IPC.
S.b. Criminal Appeal No. 305/2015 is filed in duplicate and the matter has already been considered, therefore, this appeal is disposed off and merged with S.B. Criminal Appeal No. 808/2015.
Misc. Applications, if any, shall stand disposed of. Today, during pronouncement of judgment, respondent- accused is not present in person. Issue warrant of arrest to secure presence of respondent accused-Mahesh Chand for hearing and order on question of sentence.
(ASHOK KUMAR JAIN),J PREETI VALECHA /42-43 (Downloaded on 11/11/2023 at 04:57:33 PM) Powered by TCPDF (www.tcpdf.org)