Rajasthan High Court - Jaipur
Jitesh Kumar Bansal S/O Shri Gopi Chand ... vs State Of Rajasthan on 29 August, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 135/2019
Jitesh Kumar Bansal S/o Shri Gopi Chand Bansal, R/o Balika
Vikdyalaya Ke Samne Station Road Mania Dist. Dholpur Raj.
----Victim/Appellant
Versus
1. State Of Rajasthan, Through PP
...Respondent
2. Vishvendra @ Bablu S/o Sh. Ramavtar B/c Gurjar, R/o Nagar Ps Basaidang Dist. Dholpur
----Accused/Respondent For Appellant(s) : Mr. Hemant Gupta, Advocate for Mr. Dhanna Ram, Advocate For Respondent(s) : Ms. Alka Bhatnagar, for the State HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Order 29/08/2019 Appellant has filed this appeal challenging the part of the judgment dated 12.2.2019, whereby respondent No.2 was acquitted of the charges framed against him.
Respondent No.2 along with his co-accused Ramkesh and Lalo had faced trial in FIR No.149 dated 6.4.2014 registered at Police Station Mania, District Dholpur under Section 460 Indian Penal Code, 1860 (hereinafter referred to as 'IPC').
As per prosecution story, accused had committed robbery in the house of the complainant and had committed the murder of his wife Baby.
After completion of investigation and necessary formalities, challan was presented against respondent No.2 and (Downloaded on 06/06/2021 at 06:43:17 PM) (2 of 5) [CRLAD-135/2019] his co-accused. Charges were framed against respondent No.2 under Sections 302, 302/34, 380 and 460 IPC.
Trial Court vide impugned judgment dated 12.2.2019, ordered the acquittal of respondent No.2 and conviction of co- accused Ramkesh and Lalo with regard to the charge framed against them. Hence, the complainant has filed the present appeal.
Learned counsel for the appellant has submitted that the evidence against all the accused was the same. Hence, trial Court has erred in ordering the acquittal of respondent No.2. Prosecution had been successful in establishing its case against respondent No.2. Recovery of stolen gold 'topas' was effected from the respondent No.2 during investigation.
Learned trial Court while ordering acquittal of respondent No.2 has taken in consideration the fact that material witnesses PW-2 Pradeep, PW-5 Shamsher Khan, PW-6 Pawan Kumar, PW-7 Ratangiri, PW-8 Rameshwar Giri, PW-10 Narendra, PW-11 Yashveer, PW-12 Amit Kumar, PW-13 Shriram Tyagi, PW-14 Hariom, PW-15 Bhagwan Singh, PW-19 Leeladhar and PW-28 Jaiprakash had not supported the prosecution case during trial.
As per PW-4 Jitesh (complainant), Shriram Tyagi, Bhagwan Singh and others had seen Ramkesh and three other persons running away from the roof of their house. However, Shriram Tyagi and Bhagwan Singh did not support the prosecution case during trial. Even the complainant had not named respondent No.2 as one of the persons who had been seen by other prosecution witnesses running away from the spot.
PW-3 Dinesh, brother of the complainant has stated that on inquiry, they came to know that Ramkesh, Lakhan, Lalo (Downloaded on 06/06/2021 at 06:43:17 PM) (3 of 5) [CRLAD-135/2019] and Vishvendra had committed the murder of his sister-in-law. The statement of PW-3 can be said to be hearsay.
PW-9 Laxminarayan is brother of the complainant. The said witness had deposed that he had seen respondent No.2 running away from the roof of the house of the deceased along with his co-accused.
FIR in the present case was lodged on 6.4.2014. Statement of PW-9 Laxminarayan (Exhibit D4) was recorded under Section 161 Cr.P.C. by the police on 9.4.2014. However, in the said statement names of the accused were not disclosed by the said witness. Rather, in the said statement it has been stated by PW-9 Laxminarayan that some unknown persons had committed the murder of Baby after looting articles from the house. PW-9 then named the respondent No.2 as well as other accused in his statement recorded on 13.4.2014 (Exhibit D5). There is no explanation as to why the names of the accused were not disclosed by PW-9 Laxminarayan before the police when the FIR was lodged or when his statement was recorded on 9.4.2014 after three days of the recording of the FIR. The said witness is the real brother of the complainant and in case he had actually seen the respondent No.2 running away from the spot, he would have told his brother about the said fact and name of respondent No.2 would have been incorporated in the FIR or in the statement of PW-9 recorded before the police on 9.4.2014. Hence, learned trial Court rightly held that no reliance could be placed on the testimony of PW-9.
It has been noticed by the trial Court that PW-30 Vinay Kumar Nagayach, SDM, Dholpur deposed in his cross-examination that the articles taken out from the packets did not have any (Downloaded on 06/06/2021 at 06:43:17 PM) (4 of 5) [CRLAD-135/2019] thread tied around it or any colour affixed on it. Hence, the prosecution version that there were identification marks on the recovered jewellery articles was belied. Hence, recovery of gold 'topas' effected from the respondent No.2 has been rightly held to be doubtful by the trial Court.
Thus, the reasons given by the trial Court while ordering acquittal of respondent No.2 are sound reasons. It would not be appropriate to give any opinion with regard to the conviction ordered by the trial Court with regard to the co-accused Ramkesh and Lalo as the appeal filed by appellants Ramkesh and Lalo challenging their conviction and sentence is pending.
Hon'ble the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, has held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
Similarly, in Mrinal Das & others v. The State of Tripura, 2011 (9) Supreme Court Cases 479, the Hon'ble Supreme Court, after looking into various judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for (Downloaded on 06/06/2021 at 06:43:17 PM) (5 of 5) [CRLAD-135/2019] presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed"
Hence, no ground for interference by this Court is made out.
Dismissed.
(GOVERDHAN BARDHAR),J (SABINA),J
Dheeraj/11
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