Rajasthan High Court - Jaipur
Kunjo vs State Of Rajasthan Through Pp on 23 July, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No.199/2013
Kunjo S/o Samal, by caste Thakur, R/o Sunhera, P.S. Kama,
District Bharatpur (Raj.).
(Presently in Central Jail at Sewar, Bharatpur.)
----Accused-Appellant
Versus
State Of Rajasthan Through PP.
----Respondent
Connected With D.B. Criminal Appeal No. 342/2015 Chetram S/o Dal Chand B/c Brahmin R/o Sunhera, Police Station Kaman, District Bharatpur (Raj.).
(Accused confined in Central Jail Bharatpur.)
----Accused/Appellant Versus State Of Rajasthan Through P.P.
----Respondent In Criminal Appeal No.199/2013 For Appellant : Mr. Govind Prasad Rawat For State : Mr. Javed Choudhary, P.P. For Complainant : Mr. Ankit Khandelwal In Criminal Appeal No.342/2015 For Appellant : Mr. Rinesh Kumar Gupta with Mr. Anurag Pareek and Mr. Saurabh Pratap Singh For State : Mr. Javed Choudhary, P.P. HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment 23/07/2019 (Downloaded on 01/09/2019 at 08:37:03 PM) (2 of 8) [CRLA-199/2013] Vide this order above mentioned two appeals would be disposed of.
Complainant - Babu lodged FIR No.253 dated 1.6.2011 at Police Station Kama, District Bharatpur under Section 302/34 Indian Penal Code, 1860 (hereinafter referred to as 'IPC'.) Case of the complainant, in brief, was that on 1.6.2011, he had gone to attend engagement ceremony of Virendra S/o Bhikko. At about 3.00 p.m., Chetram and Kunjo came there armed with country-made 315 Bore Guns. Chetram fired at Ballo and as a result, he suffered firearm injury in his abdomen. Then, Chetram and Kunjo fired indiscriminately. On account of injuries suffered by him, Ballo died while he was being taken to the hospital.
After completion of investigation and necessary formalities, challan was presented against the appellants.
Charges were framed against the appellants under Section 302/34 IPC and 3/25 of the Arms Act. Appellants did not plead guilty and claimed trial.
During trial, prosecution examined 22 witnesses. Appellants when examined under Section 313 Cr.P.C., prayed that they were innocent and had been falsely involved in this case due to political rivalry. Appellants examined two witnesses in their defence.
Trial Court vide judgment/order dated 22.2.2013/23.2.2013 ordered the conviction and sentence of the appellants under Section 302/34 IPC. Appellants were acquitted qua charge framed against them under Section 3/25 of the Act.
Learned counsel for the appellants has submitted that initially all the prosecution witnesses, except PW-13 Antram, had supported the prosecution case and were declared hostile. (Downloaded on 01/09/2019 at 08:37:03 PM)
(3 of 8) [CRLA-199/2013] Thereafter, on an application moved by the prosecution under Section 311 Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.') PW-8 Yogesh, PW-9 Shersingh, PW-10 Babu, PW-11 Banwari and PW-12 Govind were recalled for examination. Thereafter, the said witnesses supported the prosecution story. The plea taken by the prosecution witnesses was that they had not supported the prosecution case during trial as Hemant, nephew of the complainant, had been kidnapped by the accused party. However, it was evident from Exhibit-D2 that the story put- forth by the complainant party that Hemant has been kidnapped by the accused party, was found false. In fact, at the time of engagement ceremony, lot of persons had gathered for celebrations. Some persons fired shots in the air to celebrate. Unfortunately, a shot had hit Ballo while Chetram was loading his gun. Thus, the appellants had no intention to commit the murder of Ballo nor they had any motive to commit the offence. Hence, appellants were liable to be acquitted. The motive put-forth by the prosecution was also not established on record. Complainant has stated that wife of Ballo had told him that Chetram had borrowed Rs.40,000/- from him and he was asking for its repayment. However, wife of deceased - Ballo has not been examined during trial to corroborate the said fact.
Learned State counsel has opposed the appeals. Present case relates to the murder of Ballo. Case rests on eye-witness account. As per prosecution story, Ballo had suffered firearm injury.
PW-15 Dr. Promod Bansal deposed that on 2.6.2011 he had conducted post-mortem examination on the dead body of deceased - Ballo. Deceased had suffered four firearm injuries. Out (Downloaded on 01/09/2019 at 08:37:03 PM) (4 of 8) [CRLA-199/2013] of them, two were entry wounds, whereas, two were exit wounds. He proved the post-mortem report Ex.P24.
During trial, initially complainant as well as other eye- witnesses did not support the prosecution story and were declared hostile. It was only PW-13 Antram who deposed that on the day of incident, he had gone to attend the engagement ceremony of Virendra S/o Bhikku. Chetram and Kunjo started firing. Initially, they were firing in the air, however, later Chetram fired at Ballo and as a result, the shot hit on the hand of Ballo. Ballo fell on the ground. The shot which had hit Ballo on his hand then entered his chest. Police was called to the spot.
Thereafter, during trial, an application was moved by the prosecution under Section 311 Cr.P.C. to recall PW-8 Yogesh, PW-9 Shersingh, PW-10 Babu, PW-11 Banwari and PW-12 Govind.
PW-8 Yogesh and PW-9 Shersingh are the brothers of the deceased - Ballo, whereas, PW-12 Govind is son of deceased - Ballo.
Complainant - Babu while appearing in the witness-box as PW-10, after his recall, deposed that on the day of incident, first shot was fired by Kunjo but the same did not hit Ballo. Thereafter, Chetram fired shot which hit Ballo on his hand and thereafter, it entered in his chest. The other eye-witnesses have corroborated the statement of PW-10 Babu.
So far as PW-13 Antram is concerned, his statement under Section 161 Cr.P.C. was recorded on 5.6.2011 (Ex.D1). The said witness in his cross-examination deposed that when they had informed the incident to the Police, the Police official had said that report be made in writing. Then he had written the report in his own hand. However, the said witness had not mentioned in the (Downloaded on 01/09/2019 at 08:37:04 PM) (5 of 8) [CRLA-199/2013] report that he had also witnessed the occurrence nor his statement was immediately recorded under Section 161 Cr.P.C.
So far as other eye-witnesses, who are none other than the brothers and son of the deceased are concerned, they had not initially supported the prosecution story during trial and had been declared hostile. The said eye-witnesses were recalled under Section 311 Cr.P.C.
Order passed by the trial Court while allowing the application moved by the prosecution under Section 311 Cr.P.C. is dated 29.6.2012. A perusal of the said order reveals that plea was taken by the complainant party that they had turned hostile as Hemant, nephew of the complainant, had been kidnapped by the accused. However, as per Ex.D2, FIR No.132 dated 3.3.2012 was registered at Police Station Kama, District Bharatpur under Sections 364, 367 and 120-B IPC at the instance of Babu. However, when the said FIR was investigated, then negative final report bearing No.108/2012 dated 7.7.2012 was submitted and it was found that Hemant had not been abducted by any person.
Thus, the prosecution witnesses had initially turned hostile and had thereafter, alleged that shots had been fired by appellants with a view to commit murder of deceased - Ballo. Since, the brothers and son of the deceased - Ballo had initially not supported the prosecution story, their statements recorded after the recall are rendered doubtful especially when they had lodged another FIR on the basis of false allegations with regard to kidnapping/abduction of Hemant by the accused.
With regard to motive, complainant has deposed that wife of deceased Ballo had told him that Chetram had borrowed Rs.40,000/- from Ballo and was not returning the said amount and (Downloaded on 01/09/2019 at 08:37:04 PM) (6 of 8) [CRLA-199/2013] due to this reason, he had committed murder of Ballo. However, wife of Ballo has not been examined to substantiate the said fact.
PW.12 Govind S/o Ballo deposed that Chetram had borrowed money from his father but had failed to return the same. The said witness has not specified the amount borrowed by Chetram from his father. In his cross-examination, he deposed that no writing was executed when money was lent by his father to Chetram. An entry had been made in the diary but the same was not handed over to the police.
Ex.P19 is the statement of Govind recorded under Section 161 Cr.P.C., wherein, he had stated that he did not know as to why Chetram and Kunjo had murdered his father.
Thus, the motive has been later falsely introduced by the prosecution witnesses after they were recalled for their examination with a view to strengthen their allegations and the same is rendered doubtful.
PW-22 Ramprasad, Investigating Officer, deposed that during his investigation, it transpired that the shot had been fired while the country-made gun was being reloaded. He also stated that during investigation, it transpired that at the time of engagement ceremony, firing was being done in the air as part of celebrations. At the spot, witnesses had not told him as to from where shot had fired and from what distance the shot had been fired.
Thus, from the evidence on record, it transpires that on 1.6.2011 engagement ceremony of Virendra S/o Bhikku was being performed. Appellants as well as the complainant party were present there. With a view to celebrate, shots were being fired in the air. It appears that the shot which was fired by the appellant (Downloaded on 01/09/2019 at 08:37:04 PM) (7 of 8) [CRLA-199/2013] Chetram, unfortunately hit Ballo and as a result, he died. It can be said that Chetram had no intention to commit murder of Ballo as the prosecution has failed to establish on record any motive with Chetram to have committed murder of Ballo. Since, Chetram had fired shot, he had the knowledge that in case, it hit somebody, it could cause death. Hence, the present case would fall under the ambit of Section 304 part-II IPC and not within the ambit of Section 302 IPC. Thus, appellant Chetram is guilty of offence punishable under Section 304 part-II IPC and is convicted thereunder.
So far as appellant Kunjo is concerned, the shot fired by him had not hit anybody. Hence, appellant Kunjo is liable to be acquitted.
Accordingly, D.B. Criminal Appeal No.199/2013 is allowed and appellant - Kunjo is acquitted of the charge framed against him. Judgment/order of the trial Court dated 22.2.2013 qua appellant Kunjo are set aside. Appellant - Kunjo, 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 namely Kunjo S/o Samal 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.
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(8 of 8) [CRLA-199/2013] So far as, appellant Chetram is concerned, he is acquitted of the charge framed against him under Section 302 IPC and is convicted qua offence punishable under Section 304 part II IPC. Appellant - Chetram is sentenced to undergo imprisonment for 5 years and pay a fine of Rs.25,000/- and in case of default of payment of fine, appellant - Chetram shall further undergo rigorous imprisonment for six months.
D.B. Criminal Appeal No.342/2015 stands disposed of accordingly.
(GOVERDHAN BARDHAR)J. (SABINA)J.
Dheeraj/20&21
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