Rajasthan High Court - Jaipur
State Of Rajasthan vs Amzad Khan And Ors on 19 August, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 105/2015
Kesar Dev S/o Shri Chuna Ram, aged about 35 years, B/c
Jat, R/o Meelon Ki Dhanitan Meeran, Police Station
Nechawa, District Sikar (Rajasthan).
(Presently lodged in District Jail at Sikar)
----Appellant
Versus
State Of Rajasthan Through P.P.
----Respondent
Connected With D.B. Criminal Appeal No. 637/2015 State Of Rajasthan
----Appellant Versus
1. Amzad Khan S/o Samandar Khan, aged about 25 years, B/c Kayamkhani, R/o Nimod, Police Station Molasar, District Nagaur.
2. Moolchand S/o Medharam, aged about 26 years, B/c Jat, R/o Bijarnio Ki Dhani Tan Sigrawat, Police Station Losal, District Sikar.
3. Hari Singh S/o Sukharam, aged about 31 years, B/c Jat, R/o Bijarnio Ki Dhani Tan Sigrawat, Police Station Losal, District Sikar.
4. Poranmal S/o Pannaram, aged about 30 years, B/c Jat, R/o Bijarnio Ki Dhani Tan Sigrawat, Police Station Losal, District Sikar.
5. Harphool Singh, aged about 27 years, S/o Ramchandra, B/c Jat, R/o Dhani Khud By pass raod, Gokulpura, Police Station Sadar, Sikar.
6. Ramniwas S/o Mohanlal, aged about 27 years, B/c Jat, R/o Gokulpura, Police Station Sadar, Sikar.
7. Mahendra Singh S/o Hariram, aged about 25 years, B/c Jat, R/o Chandpura, Police Station Sadar, Sikar, District Sikar.
8. Suresh Kumar S/o Pokharmal, aged about 26 years, B/c Jat, R/o Gokulpura, Police Station Sadar, Sikar. (Downloaded on 28/08/2019 at 10:20:00 PM)
(2 of 12) [CRLA-105/2015]
----Respondents
D.B. Criminal Appeal No. 105/2015
For Appellant : Mr. Suresh Sahni with
Mr. R.M. Sharma
For Respondent : Mr. Javed Chaudhary for the State
D.B. Criminal Appeal No. 637/2015
For Appellant : Mr. Javed Chaudhary for the State
For Respondents : Mr. Vijay Poonia with
Mr. Anil Kumar
Mr. Ajay Singh Tanwar for
Mr. Ashvin Garg
HON'BLE MRS. JUSTICE SABINA
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Judgment
19/08/2019
Vide this order above mentioned two appeals would be disposed of.
FIR No. 68 dated 5.9.2005 was registered at Police Station Nechhwa, District Sikar under Section 147, 148, 149, 323, 307, 302, 458 of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and Section 3/25 of the Arms Act, 1959 (hereinafter referred to as the 'Act') on a report lodged by complainant Heera Lal.
Prosecution story in brief was that on 4.9.2005, complainant was sleeping in his house alongwith his other family members, i.e., his father Narayanram, mother Jivanee Devi sister Jyana Devi. At about 1.30 a.m., some persons started knocking at the gate of the house of the complainant. (Downloaded on 28/08/2019 at 10:20:00 PM)
(3 of 12) [CRLA-105/2015] When the father of the complainant inquired as to who was outside, Kesar Dev replied that they had to commit murder. Kesar Dev, alongwith twenty other persons, jumped over the wall and entered the house of the complainant and started inflicted injuries to them with the help of sticks, farsi, swords, iron rods and guns. Ramdev Singh grandfather of the complainant, Teju Devi grandmother of the complainant and Tulcharam came there to rescue the complainant party. Kesar Dev fired from his 12 bore gun and as a result Teju Devi and Ramdev suffered firearm injuries. Narayanram, Tulcharam, Bhanwar Singh, Jyana Devi, Jivanee Devi and Mukesh also suffered injuries. Teju Devi died at the spot, whereas, Ramdev Singh died during treatment, on account of injuries suffered by them.
After completion of investigation and necessary formalities, challan was initially presented against five accused namely Kesar Dev, Amzad Khan, Moolchand, Hari Singh and Pooranmal.
Charges were framed against the said accused under Section 458, 148, 149, 323, 325, 326, 307 and 302 IPC. Statements of six witnesses were recorded and thereafter challan was presented against other accused. Challan was also presented against accused Mahendra Singh and Suresh Kumar. Thereafter, challan was also presented against accused Harphool and Ramniwas.
Charges were again framed against all the accused under Section 148, 149, 458, 323, 325, 326, 307 and 302 IPC. Charges were also framed against accused Kesar Dev under Section 3/25 and 3/27 of the Act, whereas, against (Downloaded on 28/08/2019 at 10:20:00 PM) (4 of 12) [CRLA-105/2015] accused Hari Singh charge was also framed against him under Section 3/25 of the Act.
Accused did not plead guilty and claimed trial. In order to prove its case, prosecution examined thirty one witnesses. Accused when examined under Section 313 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), prayed that they were innocent. Accused did not examine any witness in their defence.
Trial Court vide judgment/order dated 19.01.2015 ordered the conviction and sentence of accused Kesar Dev under Section 302, 148, 307/149, 323, 325/149, 458 IPC. Other accused were acquitted of the charges framed against them. Hence, accused Kesar Dev has filed appeal challenging his conviction and sentence as ordered by the Trial Court, whereas, State has filed an appeal challenging the acquittal of the other accused by the Trial Court vide the impugned judgment.
Learned counsel for the accused have submitted that all the material/injured witnesses have not supported the prosecution case, during trial. The injured witnesses had deposed that they had named accused Kesar Dev as having fired from his gun at the deceased as per talk heard by them in the village. So far as the other accused, except Kesar Dev are concerned, they were not identified by the injured witnesses during trial. Complainant could not be examined after reframing of charges as he was not available. Complainant had gone to Afghanistan. Hence, the statement of complainant Heera Lal recorded prior to reframing of charges could not be read in evidence in view of Section 33 of (Downloaded on 28/08/2019 at 10:20:00 PM) (5 of 12) [CRLA-105/2015] the Evidence Act, 1872. Moreover, application was moved by the prosecution before the Trial Court for recording of additional evidence under Section 391 Cr.P.C. and the same was disposed of by this court vide order dated 20.11.2017 with an observation that the State was required to approach the Trial Court at the first instance. Trial Court has dismissed the application moved by the State vide order dated 24.01.2019 under Section 33 of the Evidence Act. It has been observed by the trial court that the accused were not to be blamed for the non-appearance of witness Heera Lal as he had not been kept out of the way by the accused. Although, it was the prosecution story, that Kesar Dev had fired at the deceased, but no gun was recovered from him during investigation. Rather, gun was recovered at the instance of accused Hari Singh. So far as Kesar Dev is concerned, Dhariya was recovered at his instance vide Exhibit P-53. Learned counsel has further submitted that as per the postmortem reports, the cause of death of the deceased was on account of pellet injuries suffered by them. As per PW-6 B.L. Chaudhary, radiologist, pellets were seen in the x-ray reports of the dead bodies. However, as per PW-5 Dr. Mohammad Farookh who had conducted postmortem examination on the dead bodies of the deceased, no pellets were recovered from the dead bodies, despite no exit wound. So far as witnesses Nemichand and Sultan are concerned, their presence at the spot has been denied by the injured witnesses.
Learned state counsel has deposed that the prosecution had been successful in proving its case. PW-10 Nemichand (Downloaded on 28/08/2019 at 10:20:00 PM) (6 of 12) [CRLA-105/2015] and PW-11 Sultan have identified by the accused during trial. Injured witnesses have also deposed that Kesar Dev had fired at the deceased from his gun.
Present case relates to murder of Teju Devi and Ramdev. Occurrence had taken place on the night intervening 4.9.2005 and 5.9.2005. Seven persons had suffered injuries in the incident. Thus, the case of the prosecution was based on eye- witness account.
PW-1 Narayanram is one of the injured. He deposed in his examination-in-chief that Kesar Dev had fired at Ramdev Singh, Teju Devi and Tulcharam. He failed to identify the other accused during trial apart from accused Kesar Dev. However, in his cross-examination, he deposed that it was dark at the time of the incident. Hence, he could not say for sure as to who had used the gun at the time of the incident. He also stated that there was no light at the place of the incident and due to this reason, he could not identify the accused. The occurrence had occurred in the house and the gate of the house was closed.
Thus, the statement of PW-1 fails to advance the prosecution case as he had deposed that it was dark at the time of the incident and he could not identify the assailants and he could not say for sure as to who had fired from the gun.
PW-3 injured Jivanee Devi deposed that on the day of the incident Kesar Dev alongwith other persons had come to their house. Kesar Dev was armed with a gun and had fired from the gun at Ramdev Singh, Teju Devi and Tulcharam. She did not identify the other accused present in the court. In her (Downloaded on 28/08/2019 at 10:20:00 PM) (7 of 12) [CRLA-105/2015] cross-examination, she deposed that the accused had come to the spot in their vehicles and had parked the same in front of the gate and the lights of the vehicles had been switched off. Gate of the house was closed. It was dark at the place of the incident. She had stated that Kesar Dev had fired from the gun on the strength of talk in the village.
Thus, the statement of PW-3 fails to advance the prosecution story as she had failed to identify the accused apart from accused Kesar Dev. Even with regard to Kesar Dev her statement can be said to be hearsay as it was based on talk heard by her in the village. Moreover, this witness had deposed that it was dark at the place of incident.
PW-4 injured Jyana Devi also deposed in her examination-in-chief that she could not identify the other accused apart from Kesar Dev. In her examination-in-chief, she deposed that Kesar Dev was armed with a gun at the time of the incident. Ramdev Singh and Teju Devi had died on account of gun shot injuries. In her cross-examination, she deposed that it was a dark night and there was no light at the place of the incident. Her statement was recorded by the police after about fifteen days. She had not seen Kesar Dev firing from the gun at the time of the incident.
Thus, the statement of PW-4 Jyana Devi also fails to advance the prosecution case as she deposed in her cross- examination that she had not seen accused Kesar Dev firing from the gun and failed to identify the other accused. Hence, her statement cannot be said to be hearsay qua accused Kesar Dev.
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(8 of 12) [CRLA-105/2015] PW-13 injured Tulcharam has deposed that gun had been fired by Kesar Dev at the time of the incident. He failed to identify the other accused during trial. However, in his cross-examination, he deposed that the occurrence took place, but it had not taken place in his presence. He admitted that there was a boundary wall around the house of Narayanram and the same was about eight feet high. He admitted it as correct that nothing was visible inside the house on account of the boundary wall. Nemichand and Sultan were not present at the place of the incident. He further stated that there were cordial relations between him and Kesar Dev. He stated that he had suffered gun shot in the house but since it was dark he could not tell as to who had fired the shot. On account of talk at the spot after the incident, he had stated that the gun shot had been fired by Kesar Dev.
Thus, the statement of PW-13 also be said to be hearsay and fails to advance the prosecution story. The said witness has stated that on account of darkness, he could not tell as to who had used the gun.
PW-18 injured Mukesh Kumar deposed that Kesar Dev was armed with a gun and had fired at them. As a result, Ramdev, Teju Devi and Tulcharam had suffered injuries. He identified accused Kesar Dev in his examination-in-chief, during trial, but failed to identify the other accused. In his cross-examination, he deposed that it was dark at the place of the incident. Hence, he could not tell for sure as to who had fired the shot. He had made a statement before the police that Kesar Dev had fired from the gun on the strength (Downloaded on 28/08/2019 at 10:20:00 PM) (9 of 12) [CRLA-105/2015] of talk heard by them from the villagers. Nemichand and Sultan were not present at the spot. He had not seen Kesar Dev firing from the gun as it was dark at the time of the incident.
Thus, the statement of PW-18 also fails to advance the prosecution story as his statement can be described as hearsay. Moreover, he has specifically admitted in his cross- examination that he had not seen Kesar Dev firing from the gun.
PW-19 injured Bhanwarlal did not support the prosecution case with other accused, except Kesar Dev, in his examination-in-chief with regard to the incident. In his cross- examination, he deposed that he had not disclosed the name of Kesar Dev in his statement Exihibit P-69 recorded under Section 161 Cr.P.C. He admitted that Kesar Dev had not fired at his uncle and others. They did not have any dispute with Kesar Dev. He further stated that it was dark at the spot and due to this reason he could not identify the assailants. There was no light in the chowk. The gate of the house was closed at the time of the incident. It was an iron gate. Since, it was dark at the time of the incident, he could not tell for sure as to who had fired the shot. Before his statement was recorded by the police, there was a talk in the village that Kesar Dev had fired from the gun and due to this reason he had stated in his statement that the gun had been fired by Kesar Dev. He had not seen Kesar Dev firing from his gun. Nemichand was not present at the spot. There was a 7/8 feet high boundary wall around the house of Narayanram.
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(10 of 12) [CRLA-105/2015] Thus, the statement of PW-19 also fails to advance the prosecution case as the said witness has categorically deposed that Kesar Dev had not fired from the gun. He had also admitted that it was the dark at the time of the incident. The door of the house and the iron gate of the house was closed. It was also admitted that there was 7/8 feet high boundary wall around the house of Narayanram and also stated that Nemichand was not present at the spot.
PW-10 Nemichand (again examined as PW-21) and PW- 11 Sultan (again examined as PW-20) are the alleged independent witnesses examined by the prosecution in support of its case. The said witnesses had identified all the accused during trial and had stated that they had inflicted injuries to the complainant party. They had also stated that accused Kesar Dev had fired from 12 bore gun. However, both the said witnesses have deposed that they had not reached the spot but had hidden behind the fence and witnessed the incident.
PW-Nemichand has deposed that he had witnessed the incident in the light of the vehicles of the accused. However, injured witness PW-3 Jivanee Devi had deposed that the accused had switched off the lights of the vehicles. As per the injured witnesses, gate of the house of Narayanram was closed and nothing was visible in the house as there was boundary wall around the house of Narayanram. Apparently, witnesses Nemichand and Sultan could not have seen what was going inside the house beyond the boundary wall, moreso, when it was a dark night. Since, it was a dark night and there was no light available at the spot, no reliance can (Downloaded on 28/08/2019 at 10:20:00 PM) (11 of 12) [CRLA-105/2015] be placed on testimony of prosecution witnesses Nemichand and Sultan especially when the injured witnesses have failed to establish the prosecution case with regard to the involvement of the accused in the incident-in-question. Some of the injured witnesses have also deposed that witnesses Nemichand and Sultan were not present at the spot.
Prosecution has examined Doctors to established the postmortem reports of the deceased as well as the injury reports of the injured. As per Exhibit P-53 Dhariya was recovered from accused Kesar Dev and as per Exhibit P-111 gun was recovered at the instance of accused Hari Singh. Since, in the present case, material witnesses, i.e., the injured witnesses had failed to establish the prosecution case with regard to the involvement of the accused in the crime, Trial Court has erred in ordering the conviction and sentence of accused Kesar Dev. Rather, in the present case, all the accused were liable to be acquitted of the charges framed against them.
It is a settled preposition of law that the prosecution is required to prove its case against the accused beyond the shadow of reasonable doubt by leading cogent and convincing evidence. An accused is presumed to be innocent till proved guilty. However, in the present case, prosecution case is rendered doubtful as the statement of the injured witnesses fail to advance the prosecution case with regard to the involvement of the accused in the incident-in-question. Hence, accused Kesar Dev is also liable to be acquitted by giving him benefit of doubt.
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(12 of 12) [CRLA-105/2015] Accordingly, D.B. Criminal Appeal No. 105/2015 is allowed. Accused Kesar Dev 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 Kesar Dev S/o Shri Chuna Ram 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.
Consequently, D.B. Criminal Appeal No. 637/2015 is dismissed.
(GOVERDHAN BARDHAR),J (SABINA),J
Mohita /26-27
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