Rajasthan High Court - Jaipur
State vs Har Prasad on 30 June, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Criminal Appeal No. 278 / 1991
State
----Appellant
Versus
Har Prasad
----Respondent
_____________________________________________________ For Appellant(s) : Mr. B. N. Sandu For Respondent(s) : None present _____________________________________________________ HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 30/06/2017 Sahab Singh @ Saba son of Tate Singh, caste Jat, r/o. Bhagena, P.S. Sadabad, District Mathura (U.P.) and Har Prasad son of Ram Singh, caste Nai, r/o. Nagla Kishanlal, P.S. Imamatdaula, District Agra (U.P.), were acquitted by the Court of Special Judge, Dacoity Affected Cases, Bharatpur. The said court vide impugned judgment dated 30.5.1990 held that the prosecution has failed to prove its case against the above said accused. Aggrieved against the acquittal, State of Rajasthan preferred an application for leave to appeal. The same was granted on 4.12.1990 by a Division Bench of this court and hence, present appeal against acquittal was registered.
Dariyab Singh (PW.1) on 4.8.1989 at 11.00 PM presented written report (Ex.P.1) before Rameshwar Dayal (PW.8) who was then posted as SHO, Police Station Ucha Nagla, Camp Chiksana.
(2 of 9) [CRLA-278/1991] Rameshwar Dayal (PW.8) in court deposed that on 4.8.1989 at about 10.00 PM he received information that some anti-social elements are committing offence. Rameshwar Dayal (PW.8) constituted a police party which consisted of ASI Bhanwar Singh and other members of police staff. The said police party reached the place of occurrence at Village Nagla Khushal. On the said night at 11.00 PM, Daryav son of Chhote Jat (PW.1) presented a written report.
Written report (Ex.P.1) when translated into English reads as under:-
"To, SHO Sahab, Police Station Chiksana It is submitted that today on 4.8.1989 at about 8.15 PM, about 8-10 accused trespassed into my house and started committing dacoity. On raising noise, one of the accused person fired a shot from country-made pistol and gun, due to which Premwati w/o Shri Munshi Lal Jat suffered pallet injuries. My son Siyaram and my wife Smt. Kishan Pyari were also caused injuries by the accused with Dandas. Accused after committing dacoity went towards jungle. I shall present list of goods taken away by the accused later. Premwati has been sent for treatment to Bharatpur. The accused persons were seen by me and residents of the village in electric light. I can identify the accused if they are brought before me. I am presenting the report. Legal action be taken.
Sd/"
On the basis of above said written report (Ex.P.1), a formal FIR (Ex.P.9) was registered and investigation was carried. Investigating agency, under Section 173 Cr.P.C., submitted chargesheet against Sahab Singh @ Saba and Har Prasad. Investigating agency came to the conclusion that Sahab Singh @ Saba had committed offences punishable under Sections 395, (3 of 9) [CRLA-278/1991] 397, 452, 149/307 IPC, whereas accused Har Prasad is only responsible for offence under Section 412 IPC for having received stolen property from the accused Sahab Singh @ Saba. Upon presentation of challan, the trial Judge formulated charges for offences under Sections 452, 395 read with 397, 307 read with 149 IPC against Sahab Singh @ Saba s/o Tatey Singh. So far accused-respondent Har Prasad is concerned, the charge formulated against him reads as under:-
¼d½ eSa] vej flag xksnkjk in fo'ks"k U;k;k/kh'k ,rn~}kjk vki gjizlkn firk dk uke Jh jkeflag mQZ iksnhuk tkfr ukbZ fuoklh uxyk fd'kuyky] Fkkuk beker nkSyk vkxjk ¼;w0ih0½ ij fuEu vkjksi yxkrk gw¡ %& ¼[k½ fd vkius fnukad 04-08-1989 ls fnukad 17-10-1989 dh chp dh vof/k esa vfHk;qDr lkgc flag ls ,d lksus dh vaxwBh tks mlds }kjk nj;kc flag ds ?kj ls MdSrh esa ywVh xbZ Fkh] dks MdSrh dh ywV dh lEifRr gksuk tkudj vFkok ,slk tkuus dk fo'okl gksrs gq, cn;karh ls izkIr dj vius dCts esa j[kh vkSj ,rn~}kjk vkius Hkk0na0la0 dh /kkjk 412 ds v/khu n.Muh; vijk/k fd;k vkSj tks fd vijk/k esjs izlaKku esa gSA Sahab Singh @ Saba and Har Prasad denied the charges and claimed trial. Prosecution, to secure conviction of the accused, examined 11 witnesses.
Dariyav (PW.1) is the complainant. He deposed that on the day of occurrence, he was sitting at the house of his neighbour Munshi. His son Siyaram and wife Kishan Pyari were present in his house. He heard noise of firing of shot in the house. He remained in the house of Munshi. Later he came in the street and saw that 8-9 persons had gone inside his house. Two persons stood outside the door. The said dacoits were armed with Danda, country-made pistol and gun. Electric light of his house was on. He saw the faces of the accused. Some accused were wearing Tahmad, Bushirt. Accused were aged 25 to 30 years. Two accused were wearing (4 of 9) [CRLA-278/1991] Dhoti, Kurta. Remaining were wearing Bushirt, Pant. The witness deposed that the said dacoits took away gold ornaments and cash. Dariyav (PW.1) specifically stated that accused Sahab Singh from roof of the house had fired shot from country-made pistol and thereafter he came down stairs and took away articles stolen from his house. The witness further stated that two months later he came to Bharatpur court to identify the case property. He identified gold ring (Article-1) and pair of gold Kundal (Article-2) as the articles stolen from his house.
Siyaram (PW.2) was injured in the occurrence and is son of Dariyav (PW.1).
Kishan Pyari (PW.3) is injured wife of Dariyav (PW.1). Shiv Devi (PW.4) is also eye-witness to the occurrence. Dr. Ajay Kapoor (PW.5) on 5.8.1989 had medico-legally examined Kishan Pyari (PW.3) w/o Dariyav Singh (PW.1) and Siyaram (PW.2) s/o Dariyav Singh (PW.1).
ASI Ram Saran (PW.6) has stated that on receipt of written report (Ex.P.1), he registered the formal FIR (Ex.P.9).
We will deal with the testimony of Natthi Singh (PW.7) at subsequent stage alongwith testimony of Rameshwar Dayal (PW.8), Investigating Officer.
Bhagwan Das Agrawal (PW.9) was posted as Additional Munsiff-cum-Judicial Magistrate No.2, Bharatpur and in his presence, witnesses had identified Sahab Singh @ Saba as the one who had committed offence.
Dr. Bhopal Singh (PW.10) had medico-legally examined Smt. (5 of 9) [CRLA-278/1991] Prem w/o Munshi Ram Jat.
Harphool Singh (PW.11) being posted as Additional Munsiff- cum-Judicial Magistrate No.1, Bharatpur, had conducted identification proceedings of the stolen property recovered by the investigating agency.
We need not deal with the evidence regarding the occurrence as during pendency of the appeal, Sahab Singh @ Saba, principal accused, had expired and on 12.4.1993 a Division Bench of this court had ordered abatement of appeal qua Sahab Singh @ Saba. The order dated 12.4.1993 passed by the Division Bench of this court, reads as under:-
"Learned Additional Public Prosecutor submits that respondent No.1 Sahab Singh has expired and as such the appeal has abated so far Sahab Singh is concerned.
Respondent No.2 is represented by a counsel Shri B.M. Sharma, hence the service is complete.
The appeal against the respondent No.1, Sahab Singh is, therefore dismissed as having abated.
Office shall proceed further against the respondent No.2, Har Prashad as he is already being represented by an Advocate. "
Hence, we have been left only with the case of accused respondent Har Prasad who admittedly, on the day of occurrence was not present at the scene of occurrence and was charged under Section 412 IPC for having dishonestly received, property stolen during the course of dacoity.
To connect Har Prasad with the offence, case of the prosecution rests upon disclosure statement (Ex.P.18) made by Sahab Singh @ Saba accused.
Rameshwar Dayal (PW.8) in his examination-in-chief deposed that on 5.10.1989 he arrested Sahab Singh @ Saba.
(6 of 9) [CRLA-278/1991] Thereafter police remand was taken. In court, Rameshwal Dayal (PW.8) deposed that on 17.10.1989 accused Sahab Singh during the period of remand alongwith Natthi Singh (PW.7) and Harchand (not examined) was taken to his house from where he got recovered a pair of gold Kundal (Article-2). It is further deposed by the Investigating Officer Rameshwar Dayal (PW.8) that in his village accused made a disclosure that he had handed over gold ring (Article-1) stolen at the time of dacoity, to accused Har Prasad. Thereafter Rameshwar Dayal (PW.8) being Investigating Officer alongwith Harchand (not examined) and Natthi Singh (PW.7) had gone to the village of accused Har Prasad there Har Prasad got recovered gold ring from a tin box and same was recovered vide memo (Ex.P.11).
We have perused disclosure statement (Ex.P.18). The said disclosure statement is not attested by Harchand (not examined) or Natthi Singh (PW.7) who were present alongwith accused Sahab Singh @ Saba at his house when he was taken there by Rameshwar Dayal (PW.8) for affecting recovery of gold Kundal. However, we find that Exhibit-P.19, recovery memo of gold ring from the house of accused-respondent Har Prasad, is attested by Natthi Singh (PW.7) and Harchand (not examined).
Harphool Singh (PW.11) has stated that gold ring recovered was mixed with two similar gold rings and the stolen article (gold ring) was rightly identified by Siyaram (PW.2), Dariyav (PW.1) and Smt. Kishan Pyari (PW.3). The trial Judge noted the arguments raised by the defence that provisions of Section 100(4) Cr.PC. were not complied with. No person from Uttar Pradesh or from (7 of 9) [CRLA-278/1991] near vicinity or locality of the accused-respondent Har Prasad was associated with the recovery proceedings. The trial court noted that Harchand, attesting witness to recovery memo (Ex.P.19) was not examined by the prosecution. The trial Judge noted that Natthi Singh (PW.7) admitted that they have not informed the local police of Uttar Pradesh when they had gone to affect recovery from the house of Har Prasad. Natthi Singh (PW.7) stated that when they had gone to the house of Har Prasad, they had not contacted the local police station or police post in the vicinity. The court noted that Natthi Singh (PW.7) admitted that at the time when recovery was affected from the house of Har Prasad, 10-12 local persons had gathered there. The court noted that when SHO told them to append signature, the people had left the spot. The court had noted that no such statement was made by Rameshwar Dayal (PW.8). Thus, the trial court assumed the same to be a material contradiction in the testimony of the witnesses. The court further held that the prosecution has led no evidence to the effect that Har Prasad knew that the gold ring recovered from him, was a stolen property.
Paras-42 and 43 of the impugned judgment reads as under:-
42. blds lkFk&2 ;g Hkh mYys[kuh; gS fd tgka rd gjizlkn dk iz'u gS] mlds fo:) ek= ;gh vk{ksi fd;k x;k gS fd mlds dCts ls iz-vk- 1 vaxwBh cjken gqbZ ftldk fd bl MdSrh esa ywVh tkuk gh lkfcr ugha gSA blds mijkar] ;fn rdZ ds fy, mlds dCts ls ,slh vaxwBh cjken gksuk ekuh tkos rc Hkh ,slh dksbZ ifjfLFkfr izdV ugha gqbZ ftlls ;g fo'okl fd;k tk lds fd gj izlkn us bl vaxwBh dks MdSrh esa ywVh gqbZ gksus dk Kku gksrs gq, vFkok ,slk gksus ds vk/kkj gksrs gq, o tku cw>dj vius dCts esa j[khA bl laca/k esa 1986 Mcyw- ,y- ,u- ¼;w0lh0½ 626 Hkaoj jke fo- jkt- jkT; dk
m)j.k lqlaxr gSA 43- blh ds lkFk&2 fodYi esa ;fn rdZ ds fy, cjken 'kqnk lEifRr {kf.kd rkSj ij vfHk;qDrksa ls cjkenxh dh tkuk ekuh tkrh gks rc Hkh] bl lEifRr dk mDr MdSrh dh lEifRr gksuk vfHk;kstu lkfcr djus esa (8 of 9) [CRLA-278/1991] iw.kZr;k vlQy jgk gSA The trial court further noted that Siyaram (PW.2) and Kishan Pyari (PW.3) in their statements recorded under Section 161 Cr.P.C. have not specified that the gold ring was stolen from their house. The court further noted that for carrying identification proceedings of gold ring, proper procedure, as required by law, was not followed. The trial court after analyzing the evidence of the witnesses threadbare, came to the conclusion that the prosecution witnesses have failed to prove that the alleged gold ring recovered belonged to the witnesses.
The trial court after discussing the evidence, returned following findings:-
52. bl voLFkk esa] tc mDr foosfpr lk{; ls iz-vk- 1 o 2 dk mDr MdSrh dh ?kVuk esa ywVk tkuk lafnX/k gS vkSj mlds lkFk&2 ;fn mudh ywV dh x;h gks rks fQj Lo;a eq0 izseorh ftlds }kjk ih-M- 2 fl;kjke us iz-vk- 1 vaxwBh lu~ 1975ls gh iguus dk dFku fd;k Fkk vkSj ;g lk{;
nj;ko ,oa fd'ku I;kjh dh lk{; ls iwjh rjg [kf.Mr gksrh gS vkSj ;fn Hkql0 izseorh ds laca/k esa ,slh lk{; Lohdkj dh tkrh gks rks mlh ds vaxwBh ds laca/k esa lokZf/kd egRoiw.kZ lk{kh gksus vkSj blds vfrfjDr ,sls tsojkr cukus okys lqukj dks Hkh izLrqr ugha djus ,oa uk gh bl laca/k esa ,sls tsojkr ds rkSy] mudh cukoV ,oa muds fdlh lqHknsd fpUg dks iwoZ ds dFkuksa esa izdV djus rFkk uk gh muds ywVs tkus dk iwoZ esa dFku djus ls] ,sls tsojkr dh iz- ih- 5 o ih- 6 esa fdlh Hkh vk/kkj ij ,sls rhuksa vfHk;kstu lkf{k;ksa }kjk lgh 'kuk[r djus dh lk{; rfud Hkh fo'okl mRiUu ugha djrhA ,sls lkf{k;ksa ds fy, ,slh oLrqvksa dks igpkuus ds fy, dksbZ vk/kkj gh ugha Fkk bl voLFkk esa os bu nksuksa oLrqvksa dks mlh voLFkk esa igpku ldrs Fks tcfd dk;Zokgh 'kuk[rxh ls iwoZ bu rhuksa lkf{k;ksa ds fy, bu nksuksa oLrqvksa dks ns[kus ds vfrfjDr lkFk feyk;h tkus okyh oLrqvksa dks Hkh ns[kus dk volj fn;k x;kA blh fu"d"kZ ij igqapus esa mDr foosfpr ifjfLFkfr;ka Lo;a lgk;d gSA 53- ifj.kker% iz-vk- 1 o iz-vk- 2 mDr MdSrh dh ?kVuk esa ywVh tkuk vkSj mudk nj;ko o fd'ku I;kjh dk gh gksuk vkSj muds }kjk mudh mDr dk;Zokgh 'kuk[rxh esa lgh igpku dh tkuk iwjh rjg lafnX/k ,oa vfo'oluh; gksuk ik;k tkrk gSA ,sls lk{kh oLrqvksa dks izkIr djus ds mn~ns'; ls izsfjr gksrs gS vkSj bl voLFkk esa vuqla/kku vf/kdkjh dh lykg ds vuqlkj os ,slh feF;k lk{; nsus dks Hkh iszfjr gksrs gSa tSlk fd mDr foosfpr vfHk;kstu lkf{k;ksa dh lk{; ds ekeys esa Hkh Lo;a fl) gSA We also find that there are material contradictions in the (9 of 9) [CRLA-278/1991] testimony of Natthi Singh (PW.7) and Rameshwar Dayal (PW.8) so far recovery of gold ring from the house of Har Prasad accused- respondent is concerned.
The view formulated by the trial court to record acquittal of accused-respondent Har Prasad is one view which is possible on the facts of the case and same cannot be termed perverse. The trial Judge has given detailed reasons to disbelieve the recovery of gold ring from the house of accused-respondent Har Prasad, furthermore the trial Judge had doubted the identification proceedings of gold ring. The trial court had gone to the extent of holding that the gold ring never belonged to the prosecution witnesses. After 28 years of the occurrence, for offence under Section 412 IPC, we find no justifiable reasons to disturb the findings recorded by the trial Judge to acquit the accused- respondent Har Prasad of offence under Section 412 IPC. Merely because another view is possible, we will not cause interference. The prosecution as rightly said by the trial Court has failed to prove that accused-respondent Har Prasad knew that gold ring was a property stolen during the course of dacoity.
Consequently, there is no merit in the present State appeal filed against acquittal of accused-respondent Har Prasad and the same is dismissed. As stated earlier, on 12.4.1993 appeal preferred against acquittal of principal accused Sahab Singh @ Saba has already been dismissed having abated. (VIJAY KUMAR VYAS)J. (KANWALJIT SINGH AHLUWALIA)J. Govind/