Rajasthan High Court - Jaipur
Deena@Deendayal And Ors vs State Of Rajasthan Through Pp on 13 December, 2017
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
(1) D. B. Criminal Appeal No. 816 / 2014
1. Deena @ Deendayal son of Gore Lal, by-caste Kushwah,
resident of Zheel, Police Station, Basedi, District Dholpur
(Rajasthan).
2. Kallu @ Kamal Singh son of Shyam Lal, by-caste Kushwah,
resident of Zheel, Police Station Basedi, District Dholpur
(Rajasthan).
3. Mahaveer son of Chhiddu, by-caste Kushwah, resident of Gadhi
Kirana, Police Station Kanchanpur, District Dholpur (Rajasthan).
(At present they have confined in Central Jail, Sewar, Bharatpur.)
----Appellant appellants
Versus
The State of Rajasthan through P.P.
----Non Petitioner
Connected With
(2) D. B. Criminal Appeal No. 784 / 2014
1. Guddan S/o Manohar Singh, by caste Kushwah, R/o Basaiya,
Police Station Kheragarh, District Agra (U.P.).
2. Rajkumar S/o Kumar Singh, by caste Kushwan, R/o Vill. Jheel,
Police Station Basedi, Distt. Dholpur.
(At present they have confined in District Jail Dholpur.)
----Appellant-Appellants
Versus
State of Rajasthan through P.P.
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Rajneesh Gupta for accused-appellant
Deena @ Deendayal.
For Appellants: Mr. Yogesh Singhal for accused-appellants
Guddan, Rajkumar, Kallu @ Kamal Singh and
Mahaveer.
For Respondent(s) : Mr. R.S. Raghav, Public Prosecutor.
_____________________________________________________ HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE KAILASH CHANDRA SHARMA Judgment (2 of 17) [ CRLA-816/2014] 13/12/2017 (Per Hon'ble Mr. Justice Mohammad Rafiq) These two appeals are directed against common judgment of conviction dated 02.06.2014 and order of sentence dated 03.06.2014 passed by the Court of Special Judge (Dacoity Affected Area), Dholpur (for short 'the trial court') whereby the trial court, while acquitting accused persons namely Chitra Singh; Ramroop; Nathi; Padma @ Padam Singh and Rajendra of the charge under Section 216A IPC, has convicted and sentenced the accused-appellants namely Deena @ Deendayal; Kallu @ Kamal Singh; Mahaveer; Guddan and Rajkumar in the manner as indicated below:
Name of Accused- Section Sentence
appellant
1. Deena @ Deendayal 148 IPC Three years' rigorous imprisonment
2. Kallu @ Kamal Singh and fine of Rs. 1,000/-, in default of
3. Mahaveer payment of fine to undergo one
4. Guddan month's additional imprisonment.
5. Rajkumar
1. Guddan 302 IPC Life imprisonment and fine of Rs.
1,000/-, in default of payment of fine
to undergo one month's additional
imprisonment.
1. Deena @ Deendayal 302 read Life imprisonment and fine of Rs.
2. Kallu @ Kamal Singh with 149 1,000/-, in default of payment of fine
3. Mahaveer IPC to undergo one month's additional
4. Rajkumar imprisonment.
1. Deena @ Deendayal 395 IPC Life imprisonment and fine of Rs.
2. Kallu @ Kamal Singh 1,000/-, in default of payment of fine
3. Mahaveer to undergo one month's additional
4. Guddan imprisonment.
5. Rajkumar
1. Deena @ Deendayal 396 IPC Life imprisonment and fine of Rs.
2. Kallu @ Kamal Singh 1,000/-, in default of payment of fine
3. Mahaveer to undergo one month's additional
4. Guddan imprisonment.
5. Rajkumar
All the sentences were ordered to run concurrently.
(3 of 17) [ CRLA-816/2014] Briefly stated the facts of the case are that Netrapal (P.W.12), complainant/informant submitted a written report (Exhibit P-10) to S.H.O., Police Station Kolari, District Dholpur at 9.30 P.M. on 21.02.2006 inter alia stating therein that on that day at about 6.00 P.M., the complainant and one Girraj son of Hakim Singh Gurjar resident of Rasulpur were going from their village to Anda Manpur Village to meet Gabbar Singh Gurjar on motor cycle of Ashok Jatav. While returning back to their village, when they reached near Piphera at about 8.00 P.M., they found that some vehicles were standing parked there and there was a situation of traffic jam. When they stopped their motor cycle, suddenly five miscreants, who all were armed with weapons, started giving beating to them. One of the miscreants, whom the informant/complainant identified as Guddan, opened fire which hit chest of Girraj on account of which Girraj died on spot. Then Guddan with others ran away from the place of incident. The complainant further alleged that he could identify the accused, if brought before him. On the basis of aforesaid written report, the police registered regular FIR No. 18/2006 (Exhibit P-11) for offences under Sections 143, 323, 341, 302 IPC. On completion of trial, the police filed charge sheet against accused Deena @ Deendayal for offence under Sections 147, 148, 149, 302, 395, 396, 323, 341 IPC and Section 11 RDA Act; against accused Chitra Singh, Ramroop for offence under Section 216A IPC; against accused Guddan; Rajkumar, Kallu @ Kamal Singh, Mahaveer, Bhiky for offences under Sections 147, 148, 149, 302, 395, 396 (4 of 17) [ CRLA-816/2014] IPC and Section 11 R.D. Act and against Nathi, Rajendra and Padma for offence under Section 216A IPC before the Court of Magistrate having jurisdiction. However, investigation against others were kept pending under Section 173 (8) Cr.P.C. The case being exclusively triable by the Court of Sessions, it was committed to the Court of Sessions, Dholpur wherefrom it was made over to the Court of Special Judge (Dacoity Affected Area), Dholpur for trial. The trial court framed charges against accused- appellants Deena @ Deendayal; Kallu @ Kamal Singh, Mahaveer, Rajkumar for offence under Sections 148, 302 read with 149, 395 and 396; against accused-appellant Guddan for offence under Sections 148, 302, 395 and 396 IPC; against accused Ramroop, Chitra Singh; Nathi, Rajendra, Padma for offence under Section 216A IPC read with Section 11 of Rajasthan Dacoity Affected Area Act, which they denied and claimed to be tried. The prosecution to secure conviction of the accused persons produced 25 witnesses and exhibited 37 documents. Thereafter, the accused persons including present accused-appellants were examined under Section 313 Cr.P.C. wherein they pleaded innocence. In defence no witness was produced but four documents were got exhibited. Upon conclusion of trial, the trial court vide impugned judgment of conviction and impugned order of sentence, while acquitting accused namely Ramroop, Chitra Singh; Nathi, Rajendra, Padma, convicted and sentenced present accused- appellants in the manner as indicated above. Hence, these two appeals.
(5 of 17) [ CRLA-816/2014] Mr. Yogesh Singh, learned counsel appearing on behalf of accused-appellants Guddan, Rajkumar, Kallu @ Kamal Singh and Mahaveer argued that the impugned judgment dated 02.06.2014 and order of sentence dated 03.06.2014 passed by the learned trial court are absolutely illegal, perverse on law and facts as also against the criminal jurisprudence. The accused- appellants are innocent persons, who have been falsely implicated in the present Case. The learned trial court has convicted and sentenced the accused-appellants on the basis of surmises and conjectures. Learned trial court has not considered the evidence available on record in proper manner. It is argued that prosecution has not proved it's case beyond reasonable doubt against the accused appellants. But, learned trial court has passed the order of conviction and sentence in a casual manner, even testimony of the witnesses has not been taken into consideration in true manner. Therefore, learned trial court has committed gross illegality in passing the judgment of conviction and order of sentence against them. Learned counsel argued that Babulal (P.W.2), who is star witness of the prosecution, Hakim Singh (P.W.4), Shripati (P.W.11), Laxman (P.W.15) and Rajendra (P.W.16) have been declared hostile by the prosecution and not supported the prosecution story. It is argued that entire case of the prosecution is that accused-appellant Guddan has opened two fire arm shots on the chest of the deceased by which he died on the spot. But neither any fire arm was recovered, nor learned trial court has discussed in it's finding in this regard. Thus, all the (6 of 17) [ CRLA-816/2014] offences are not proved beyond the reasonable doubts against the accused-appellants. It is argued that a bare look of the entire case of the prosecution would reveal that only two witness are required to be examined by the Court who are Netrapal Singh (P.W.12) and Ramniwas (P.W.18). However after conjoint reading of statements of both these witnesses, it is clearly proved that contradictory statements were given by them during the trial. Ramniwas (P.W.18) has not stated in his statement that when incident took place whether Netrapal was present or not. Thus, presence of the Netrapal (P.W.12) is doubtful on the spot during incident. Therefore, conviction cannot be awarded on the basis of the statement of Netrapal. The prosecution has not proved beyond reasonable doubt the fact of committing of dacoity by the accused-appellants, therefore, conviction and sentence of the accused-appellants cannot be sustained. It is submitted that name of the accused-appellant Rajkumar does not figure in the FIR. Neither accused-appellants were identified in the identification parade by the witnesses during investigation, nor any looted article were recovered at the instance of the accused- appellants. Even he has not been identified by the witness in the court during their examination. Therefore, he is also entitled to be acquitted by this Court on this sole ground. Learned counsel argued that it has emerged in the testimony of the witnesses that it was dark at that time at the place where incident had taken place. Time of the accident was at about 9.00 P.M. Moreover, no witness had said in his/her statement that light of any of the (7 of 17) [ CRLA-816/2014] vehicle on spot was lit which could make any of the accused visible during the incident. Thus, it is manifest that there is no possibility to identify the miscreants by the witnesses without light at the spot. Even some of the witnesses are saying that miscreants were wearing mask on their face. Thus, testimony of the witnesses is not credible and reliable. It is argued that Ramniwas (P.W.18) has stated that he did not know number of the motorcycle of Girraj. Aforesaid motorcycle was taken away by him at his Village Raseedpur which is 7 km. far away from there but Netrapal (P.W.12) has stated that he went on motorcycle of Girraj thus both the statements are conflicting with each other. Thus, story of the prosecution cannot be relied entirely against the accused-appellant and does not prove guilt of the accused- appellants beyond reasonable doubt. It is argued that Babulal (P.W.2) has turned hostile, however, he has stated that miscreants were wearing mask on their faces when incident took place. Whereas other witness Netrapal is saying that he has identified the miscreants during the incident. Thus, both the statements are contradictory and presence of the Netrapal at the place of occurrence is doubtful during the incident. Learned counsel in support of his arguments relied upon the judgments of the Supreme Court in Iqbal & Another Vs. State of Uttar Pradesh, (2015) 6 SCC 623; Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, 2011 Cr.L.R. (SC) 367; Nallabothu Ramulu alias Seetharamaiah & Others Vs. State of Andhra (8 of 17) [ CRLA-816/2014] Pradesh, (2014) 12 SCC 261 and State of Uttar Pradesh Vs. Satveer and Others, (2015) 9 SCC 44.
Mr. Rajneesh Gupta, learned counsel appearing on behalf of accused-appellant Deena @ Deendayal argued that the learned trial court has committed serious irregularity and material illegality while convicting and sentencing the accused appellants, as such the impugned judgment of conviction and order of sentence are liable to be quashed and set aside by this Court. The impugned judgment and order passed by the learned trial court are against the facts available on record and legal principles. The learned trial court has framed the charges against the accused- appellants erroneously which has resulted into serious prejudice to the accused-appellants. It is argued that Babu Lal (P.W.2) is said to be the eye witness to the incident, who has not supported the case of prosecution and has not identified the accused involved in the incident but the learned trial court has wrongly convicted and sentenced the accused-appellants. Hakim Singh (P.W.4), Sripat (P.W.11), Laxman (P.W.15) and Rajendra (P.W.16) were also declared hostile, therefore, whole story of the prosecution is doubtful, as such impugned judgment of conviction and order of sentence are liable to be quashed and set aside. The prosecution witnesses Nemi Chand (P.W.6) and Rajvir Singh (P.W.7) have not supported the 'fard japti' and only stated about arrest of Deen Dayal. The prosecution witness Netrapal (P.W.12), author of FIR, has not identified the accused Mahaveer in the court premises as also Jail. The identification parade was not conducted in the jail (9 of 17) [ CRLA-816/2014] premises before the concerned Magistrate which aspect of the matter has not been considered by the learned trial court while convicting accused-appellants, as such the impugned judgment of conviction and order of sentence are liable to be quashed and set aside. In Exhibit P-10, there are certain corrections/interpolations, which creates doubt about the story of the prosecution. There are major contradictions in the statements of Netrapal (P.W.17) and Ramniwas (P.W.18) about motorcycle on which deceased Girraj went to the incident. In fact, no robbery was committed at the place of incident and at that time it is very difficult to identify a person. It is doubtful that Netrapal was present at the place of incident. Ramniwas (P.W.18) specifically submitted that there were four persons who stopped the vehicle and snatched Rs. 150 and Rs. 200 from him and Rajendra and also an earring and purse of a woman who was sitting in the Marshal. The prosecution witness Hakim Singh (P.W.4) submitted that he could not identify the accused as it was night at the time of incident and there was no light and submitted that he identified the accused on the basis of face and was declared hostile. There are major contradictions in the testimony of prosecution witnesses and the prosecution has failed to prove the guilt of accused-appellants beyond reasonable doubt. In these circumstances, the conviction recorded by the learned trial court against the accused-appellants deserves to be set aside by this Court. Learned counsel alternatively argued that if the conviction of the accused-appellants is upheld, then the sentence awarded by the learned trial court is too exorbitant and (10 of 17) [ CRLA-816/2014] therefore, the impugned order of conviction and sentence is liable to be quashed and set aside. The identification parade has not been fairly conducted by the prosecution in the present case as accused were shown in the police station. Co-accused in the present case, namely Ramroop, Chitra Singh, Nathi, Rajendra and Padma have been acquitted of the charge under Section 216A IPC and the offence against the accused-appellants is under Section 302/149 IPC. However, No offence is made out against the accused-appellants under Sections 395 and 396 IPC. The conviction of the appellants is based on the surmises and conjectures and the sentenced passed by the learned trial court is too exorbitant.
Mr. R.S. Raghav learned Public Prosecutor opposed the appeals and took us through the statements of prosecution witnesses and exhibits as also findings recorded by the trial court reference to which shall be made by us at appropriate place hereinafter. Learned Pubic Prosecutor further argued that accused-appellants are members of dacoity gang inasmuch as they are history sheeters. It is stated that total 14 criminal cases were registered against accused-appellant Guddan alone in the State of Uttar Pradesh, many of which were dacoity cases. There are 8 criminal cases registered against accused-appellants Guddan and Rajkumar together in different Police Stations of Uttar Pradesh. In the State of Rajasthan, 17 criminal cases have been registered against the accused-appellants Guddan and Rajkumar together. Apart from this, there is one more criminal case each (11 of 17) [ CRLA-816/2014] against accused-appellants Guddan and Rajkumar registered in the State of Rajasthan. It is, therefore, prayed that appeals may be dismissed and conviction and sentence of the accused- appellants may be affirmed by this Court.
We have given our anxious consideration to rival submissions and carefully examined the material on record.
In this case, out of total six witnesses, who were cited as eye witnesses by the prosecution, four witnesses namely Babu Lal (P.W.2); Hakam Singh (P.W.4); Laxman (P.W.15) and Rajendra (P.W.16) have turned hostile but the informant Netrapal (P.W.12) and another eye witness namely Ram Niwas (P.W.18) have supported the case of the prosecution. Merely because they happened to be related to the deceased cannot be a reason to discard their testimony. However, their testimony would certainly require careful scrutiny before they are relied to sustain conviction of the accused-appellants.
Netrapal (P.W.12) in the written report (Exhibit P-10) submitted to the police at 9.30 P.M. on 21.02.2006 alleged that he and Girraj had gone to village Anda Manpur to meet Gabbar Singh Gurjar on motor cycle of Ashok Yadav. Thereafter, they were coming towards Badi. While the motor cycle being driven by informant Netrapal, Girraj was sitting as pillion rider. They were going towards Sepau Road via Basai Nawab. Suddenly, after some distance from village Piphera towards Sapau in the night around 8.00 P.M., they noticed that 2-3 tractors were parked on the road which led to the situation of traffic jam. When they reached there (12 of 17) [ CRLA-816/2014] on their motor cycle, five miscreants were present there. He could identify one of them, i.e. Guddan. Then accused started beating both the informant and his companion Girraj. Then Guddan opened fire at the chest of Girraj, as a result of which he died on spot. Thereafter, Guddan and his other companions fled away from there. Informant Netrapal appearing as P.W.12 has repeated allegations made in the written report. In his court statement also, Netrapal (P.W.12) has stated that three of the accused came to him and started beating them. They took a sum of Rs. 200/- from his pocket and also looted certain cash from his companion Girraj and they were also simultaneously beating them. When the accused enquired about caste of this witness, he told that he was Jatav by caste. Thereafter, he was asked to step aside. Then they started beating Girraj, who was requesting them with folded hands to spare him. But one of the accused opened fire at him. Family members of Girraj came there on a tractor. This witness in the court identified Guddan as the one who opened fire at Girraj and also identified co-accused Raj Kumar, Deena and Kallu, who were present in the Court, as companions of Guddan. He also alleged that Kallu and Deena both were present with the accused- appellant Guddan, who opened fire at the deceased. This witness also stated that he went to Central Jail for identification of accused on 10.04.2006 and he in the presence of Judicial Magistrate correctly identified Deena, memo of which proceeding was Exhibit P-7. Thereafter, he again went to jail on 29.05.2007 and in the presence of Judicial Magistrate identified accused Kallu, memo of (13 of 17) [ CRLA-816/2014] which proceeding was Exhibit P-21. This witness was subjected to intensive cross-examination and remained firm in so far as allegations against the accused-appellants are concerned. The fact that he instead of directly going to police chowki went to house of deceased Girraj cannot be a reason to hold that he was not present at the scene of occurrence. The kind of terror, which the accused had yielded in the area, fully explains that Netrapal (P.W.12) went to house of the deceased to bring his family members along with him for lodging first information report. A question was also put to this witness that since it was dark night and therefore, whether he could identify the accused, but he clarified that he could identify the accused in the lights of tractors and motor cycles. The deceased Girraj sustained two fire arm injuries on his chest one of which, according to this witness, was fired by Raj Kumar and another by Guddan. First fire was opened by Guddan, who did so from distance of 3-4 feets whereas Raj Kumar opened fire from point blank. This witness also stated that he went to the house of the deceased because he was highly perturbed and he could not notice police chowki while going to house of the deceased.
Ram Niwas (P.W.18) has also corroborated statement of Netrapal (P.W.12). He has stated that on 21.02.2006, he was going with Rajendra from town Badi in Mahindra Marshal jeep to village Sakhwara. They found traffic jam near the place of incident. Apart from other vehicles, certain motor cycles were also halted there. Suddenly, four miscreants stopped their (14 of 17) [ CRLA-816/2014] vehicle. They snatched a sum of Rs. 150/- from this witness and Rs. 2,00/- from Rajendra. They also snatched ear rings and purse of women travelling in the jeep. These miscreants were Kallu, Deena, Mahaveer and Vikky. Then, they called their leaders. Their leaders were Raj Kumar and Guddan. Guddan hit him by but of gun and commanded him to sit by road side. Suddenly a motor cycle came there. Accused intercepted that motor cycle as well. Exchange of some hot words took place between motor cycle riders and the accused. Raj Kumar and Guddan opened fire at the deceased. Gabbar Singh (P.W.3) corroborated the fact that his brother-in-law Girraj along with Netrapal had come to meet him on 21.02.2006 and they left around 1.30 P.M. Dr. Satish Garg (P.W.8) has categorically stated that the deceased sustained two gun shot injuries and both had wound of entry and exit. Injury no. 1 was in the size of 2.4 x 2 cm. in oval shape on the left side of IV intercostal space with tattooing present. It's existing wound was in the size of 2 x 1.8 c.m. on left side VI intercostal space. Injury no. 2 was in the size of 0.8 x 0.6 c.m. in oval shape at suprasternal area with tattooing present and it was an entry wound. Exit wound of this was in the size of 2 x 0.8 c.m. on left side of III entry coastal space of back. Pericardium was lacerated and upper chamber of heart was also lacerated. Cause of death was due to rupture of heart leading to hemorrhagic shock as a result of gun shot injuries, which were ante mortem in nature.
(15 of 17) [ CRLA-816/2014] Deena was correctly identified by Netrapal (P.W.12) as also by Rajendra (P.W.16) and Hakim (P.W.4) in the Court, but Rajendra and Hakim turned hostile, which is another aspect of the matter. Memo of identification parade of Deena was Exhibit P-7. Memo of another identification parade of Kallu @ Kamal Singh was Exhibit P-21, who was correctly identified by Netrapal (P.W.12). Arrest memo of accused Deena (Exhibit P-16) indicated that he was kept muffled face. Similarly arrest memo of Kallu (Exhibit P-
33) also indicates that he was kept muffled face. Rajendra Yadav (P.W.17) has proved the fact that accused were kept with covered face. When we carefully examine statement of Netrapal (P.W.12) informant, we find that he had named Guddan, Raj Kumar as those who opened fire twice at the deceased by two separate fire arms and he has also proved test identification of Deena both before the Judicial Magistrate and in the Court also. Apart from Deena, he identified Kallu in the Court with regard to whom also a test identification parade was conducted. Apart from him, Rajendra (P.W.16) and Hakim (P.W.4) also identified Deena, but they turned hostile in the Court. Moreover, Kallu has been identified by Netrapal in test identification parade, who was also identified by him in the Court. Test identification parade was not conducted with regard to Raj Kumar and Mahaveer because they were arrested relatively earlier. While Deena was arrested on 01.04.2006 vide Exhibit P-16, Kallu was arrested on 24.05.2007 vide Exhibit P-33, Raj Kumar was arrested on 03.12.2007 vide Exhibit P-34, but the same cannot be said about Mahaveer, who (16 of 17) [ CRLA-816/2014] was arrested on 23.05.2007 vide Exhibit P-32 and his test identification parade was also not conducted. Mahaveer has also not been identified by the informant Netrapal (P.W.12), though he has identified Raj Kumar correctly on specific allegation that he apart from Guddan also opened fire on the deceased. A case is therefore, made out for extending benefit of doubt in favour of Mahaveer, however guilt of accused-appellants namely Guddan; Rajkumar; Deena @ Deendayal and Kallu @ Kamal has been proved by required standard beyond reasonable doubt.
In view of above discussion, Criminal Appeal No. 816/2014 qua accused-appellants Deena @ Deendayal and Kallu @ Kamal Singh is dismissed and their conviction and sentence as awarded by the trial court is affirmed. However, the aforesaid appeal qua accused-appellant Mahaveer is allowed and he is acquitted of the charges under Sections 148, 302 read with Section 149, 395 and 396 IPC. He is in jail and be set at liberty forthwith, if not required to be detained in any other case. Criminal Appeal No. 784/2014 filed by accused-appellants Guddan and Rajkumar is dismissed and their conviction and sentenc as awarded by the trial court is affirmed.
Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant Mahaveer is directed to forthwith furnish a personal bond in the sum of Rs.20,000/-, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special (17 of 17) [ CRLA-816/2014] 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.
Registry is directed to place a copy of this judgment on record of connected appeal.
(KAILASH CHANDRA SHARMA)J. (MOHAMMAD RAFIQ)J. Manoj