Rajasthan High Court - Jaipur
Hasan Mohd@Vikram vs State Of Rajasthan Through Pp on 22 October, 2019
Bench: Sabina, Goverdhan Bardhar
(1 of 13)
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 591/2014
Bijendra S/o Shri Deepchand, B/c Jat, R/o Near Naredi Bus
Stand, Police Station Tatarpur, District Alwar.
At present in District Jail, Alwar.
----Appellant
Versus
State Of Rajasthan Through P.P.
----Respondent
Connected With D.B. Criminal Appeal No. 578/2014 Hasan Mohd. @ Vikram S/o Fazruddin, B/c Mev R/o Jehrana, Tehsil Punhana, District Mewat Nuhu Haryana. (At present confined in District Jail, Alwar)
----Appellant Versus State Of Rajasthan Through P.P.
----Respondent D.B. Criminal Appeal No. 591/2014 For Appellant : Mr. Harendra Singh Sinsinwar with Mr. Rajesh Chaudhary For Respondent : Ms. Rekha Madnani for the State For Complainant : Mr. Samarth Sharma D.B. Criminal Appeal No. 578/2014 For Appellant : Mr. R.K. Mathur Sr. Adv. with Mr. Manu Agarwal Mr. Govind Vaishnav For Respondent : Ms. Rekha Madnani for the State For Complainant : Mr. Samarth Sharma HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment / Order 22/10/2019 (Downloaded on 07/06/2021 at 12:22:46 AM) (2 of 13) [CRLA-591/2014] Vide this order above mentioned two appeals would be disposed of.
Appellants have filed the above mentioned appeals challenging their conviction and sentence as ordered by the Trial Court vide judgment/order dated 11.04.2014.
Appellants were convicted and sentenced as under:-
Appellant - Bijendra U/s 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC'):- to undergo life imprisonment and to pay a fine of Rs.2,000/- and in default of payment of fine, he shall further undergo additional six months simple imprisonment.
U/s 3/181 of the Motor Vehicles Act, 1988:- to pay a fine of Rs.500/- and in default thereof to undergo one month additional simple imprisonment.
Appellant - Hasan Mohd. @ Vikram U/s 302/34 IPC:- to undergo life imprisonment and to pay a fine of Rs.2,000/- and in default of payment of fine, he shall further undergo additional six months simple imprisonment.
Accused - Kudiyaram U/s 5/180 of the Motor Vehicles Act, 1988:- to pay a fine of Rs.1,000/- and in default thereof to undergo two months additional simple imprisonment.
Prosecution story was set in motion on the basis of the report Exhibit P-9 lodged by the complainant Sher Singh. On the basis of the report Exhibit P-9, formal FIR No.252 dated 6.8.2012 was registered at Police Station Khairtal, District Alwar under Section 302 IPC. Prosecution story as per the FIR, in brief, is that on 5.8.2012 at about 7/7.30 p.m., Sanjay Kumar son of (Downloaded on 07/06/2021 at 12:22:46 AM) (3 of 13) [CRLA-591/2014] the complainant along with his uncle Mohar Singh's son and Purushottam had gone to his (Purushottam) in-laws house on their motorcycles. Purushottam wanted to bring back his daughter Tinu from his in-laws house. Pravesh was sitting on the pillion seat of the motorcycle driven by Purushottam. All the three reached the house of Deepchand and requested that they wanted to take Tinu daughter of Purushottam with them.
However, Deepchand refused to allow Tinu to accompany her father. Some dispute arose at the spot. Son of Mev was also present at the spot. At about 8/8.15 p.m., Purushottam and others started for their house. Bijendra son of Deepchand along with four other persons followed on their dumper and tried to hit the motorcycles of Purushottam and Sanjay. Purushottam and Pravesh, however, managed to escape, but Sanjay remained unsuccessful in escaping and as a result, he was apprehended by the accused and was done to death. Complainant received the information from Purushottam and Pravesh about the incident. They tried to look around for Sanjay, but could not locate him. Mobile-phone of Sanjay was switched-off. At about 6.00 a.m. on 6.8.2012, complainant received information from the police that the dead body of Sanjay was lying near Shiv Brick-klin.
After completion of investigation and necessary formalities, challan was presented against the appellants and their co- accused Kudiyaram.
Charges were framed against appellant Bijendra under Section 302/34 IPC and Section 3/181 of the Motor Vehicles Act, 1988 and against appellant Hasan, charge was framed under (Downloaded on 07/06/2021 at 12:22:46 AM) (4 of 13) [CRLA-591/2014] Section 302/34 IPC and against accused Kudiyaram, charge was framed under Section 5/180 of the Motor Vehicles Act, 1988.
Accused did not plead guilty to the charges framed against them and claimed trial.
In order to prove its case, prosecution examined twenty witnesses, during trial. Accused when examined under Section 313 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), stated that they were innocent and had been falsely involved in the case.
Learned counsel for the appellants have submitted that the prosecution had miserably failed to prove its case. PW-6 Pravesh and PW-8 Purushottam while appearing in the witness-box had not deposed as per the version of the FIR, but had given a new story. Rather from the statements of PW-6 and PW-8, it was evident that the accused had no motive to commit the murder of Sanjay Kumar. It was Purushottam, who had gone to bring back his daughter Tinu and dispute had also arisen between Purushottam and appellant Hasan in his in-laws house. PW-6 and PW-8 had not disclosed with regard to the presence of PW-3 Imran with appellant Bijendra. So far as PW-3 Imran is concerned, he has been introduced as an eye-witness at a later stage. Statement of PW-3 was recorded under Section 161 Cr.P.C. on 20.09.2012, whereas, the incident had allegedly occurred on 5.8.2012. So far as PW-7 Rajendra and PW-9 Sanjay Kumar are concerned, they have introduced a new version which does not find corroboration from the statements of PW-6 Pravesh and PW-8 Purushottam.
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(5 of 13) [CRLA-591/2014] Learned state counsel who is assisted by the counsel for the complainant has opposed the appeals.
Learned counsel for the complainant has submitted that deceased Sanjay was cousin brother of Purushottam. Deceased Sanjay was having a grievance against the accused as the wife of Purushottam was having illicit relations with appellant Hasan. So far as appellant Bijendra is concerned, he is the brother of the wife of Purushottam. Both the appellants in connivance with each other had committed the murder of Sanjay by hitting dumper against the motorcycle driven by Sanjay Kumar. As per the Mechanical Test Examination Report of the dumper driven by Bijendra, there were recent scratch marks on the front (driver side) of the vehicle and the front light on the left side was also broken.
Present case relates to murder of Sanjay Kumar. Exhibit P-7 is the postmortem examination report of the deceased. The said report has been proved by PW-13 Dr. Udai Bhan. A perusal of Exhibit P-7 reveals that the cause of death of the deceased was haemorrhagic shock due to excessive haemorrhage caused by laceration of liver.
Let us examine the statements of material witnessess examined by the prosecution to establish the involvment of the appellants in the crime to come to a conclusion as to whether appellants had committed the crime or not.
Complainant-Sher Singh while appearing in the witness- box as PW-5 has deposed as per the contents of the FIR.
PW-3 Imran has been examined by the prosecution as an eye-witness of the incident. The said witness deposed that on (Downloaded on 07/06/2021 at 12:22:46 AM) (6 of 13) [CRLA-591/2014] 5.8.2012 at about 8.00 p.m., he was present at Mataur along with Bijendra. In the meantime, Bijendra received a phone-call that a dispute had occurred in his house and Bijendra stated that he would reach home after sometime. Then they reached the house of Bijendra, but did not find anybody present there. Bijendra made inquiry from his family members as to what had happened. It was informed by his family members that some persons on two motorcycles had come and had beaten them. Bijendra looked around, but could not find the said persons. After sometime, one person came on a motorcycle towards the crossing. On seeing the said person, Bijendra struck his vehicle against the said person. After sometime, Bijendra came back. The person who had suffered the impact must have died. His statement Exhibit P-8 was recorded in the court.
Statement of PW-3 Imran under Section 161 Cr.P.C. was recorded on 20.09.2012 and his statement under Section 164 Cr.P.C. was recorded on 28.09.2012. Thus, there is unexplained delay in recording the statement of PW-3 Imran by the investigating agency. Occurrence had occurred on 5.8.2012, whereas, the statement of PW-3, for the first time, was recorded by the police on 20.09.2012. It has been projected by the prosecution that PW-3 was working under appellant Bijendra and had been employed by the owner (accused Kudiyaram) of the vehicle at the instance of PW-11 Kasam. However, PW-11 Kasam while appearing in the witness-box has not supported the prosecution case, during trial. Accused Kudiyaram has also stated in his statement under Section 313 Cr.P.C. that PW-3 Imran had never been employed by him. Moreover, it is the case (Downloaded on 07/06/2021 at 12:22:46 AM) (7 of 13) [CRLA-591/2014] of PW-3 that he had only been working with the dumper for about 5/6 days and had never met the owner Kudiyaram. He stated that his wages had been settled by Kasam. So far as the statement of PW-3 is concerned, same fails to inspire confidence. Firstly, statement of PW-3 was recorded after unexplained delay by the police and secondly, the said statement does not find any corroboration from the statements of PW-6 Pravesh and PW-8 Purushottam. As per PW-6 and PW-8 they had met Bijendra, who had come in a dumper and PW-6 and PW-8 had left the spot, whereas, Sanjay had stayed with Bijendra. PW-6 and PW-8 have not deposed to the effect that apart from Bijendra some other person was also present in the dumper when they had left the spot. It appears that PW-3 Imran has been introduced as a witness at a later stage by the prosecution to strengthen its case against the accused.
PW-8 Purushottam has deposed that on 5.8.2012 at about 7/8.00 p.m., he had gone to bring back his daughter Tinu. He had started from his house and from Khairtal Sanjay and Pravesh had accompanied him. He asked his mother-in-law Krishna and father-in-law Deepchand to give him Rs.33,000/- and his daughter Tinu. Hasan was also sitting in their house. He asked his father-in-law and mother-in-law as to why they had kept Hasan in their house. Hasan abused him and caught hold of him and started beating him. Then, he alongwith Sanjay and Pravesh started for their house. They met Bijendra on the road near a bridge. They asked Sanjay to accompany them but Bijendra said that Sanjay would come later. He along with Pravesh returned home and in the morning they came to know (Downloaded on 07/06/2021 at 12:22:46 AM) (8 of 13) [CRLA-591/2014] that Bijendra and Hasan had murdered Sanjay near Shiv Brick- klin. In his cross-examination, he deposed that on reaching his in-laws house, he had demanded his daughter Tinu and Rs. 33,000/-. Hasan had scuffled with him and had beaten him. In his presence, Bijendra had not beaten Sanjay. When Bijendra had stopped Sanjay, at that time, no dispute had occurred between them and Bijendra. They had left Sanjay with Bijendra in a cordial atmosphere. He had not witnessed the incident which had occurred with Sanjay.
PW-6 Pravesh has corroborated the statement of PW-8 Purushottam. The said witness in his cross-examination deposed that when they had left Sanjay with Bijendra, there was no dispute between them. He also deposed that no dispute took place between them and Bijendra. They had talked to Bijendra in a cordial manner. He had not seen any incident which had occurred with Sanjay, but was deposing on hearsay basis. He also admitted that there was no enmity between Sanjay and Hasan. No scuffle had taken place between Sanjay and Bijendra in their presence.
Thus, from the perusal of the statements of PW-6 Pravesh and PW-8 Purushottam, it is evident that Purushottam had gone to his in-laws house to bring back his daughter Tinu and Rs.33,000/-. When PW-6, PW-8 and Sanjay had reached the house of in-laws of Purushottam, at that time appellant Hasan was present there and a scuffle had taken place between Purushottam and Hasan. Hasan had beaten Purushottam. However, there is no medico legal examination report of Purushottam on record to establish the fact that he had suffered (Downloaded on 07/06/2021 at 12:22:46 AM) (9 of 13) [CRLA-591/2014] any injury at the hands of Hasan Khan. From the examination- in-chief of PW-6 and PW-8, it cannot be said that deceased Sanjay had any dispute with Bijendra or Hasan. The dispute, if any, can be of Purushottam with his in-laws family. So far as Sanjay and Purushottam are concerned, they had only accompanied Purushottam to the house of his in-laws. So far as Bijendra is concerned, he is the brother of the wife of the Purushottam and as per the prosecution case, Hasan was having illicit relations with the wife of Purushottam. Thus, so far as Bijendra and Hasan are concerned, they could be said to be having a dispute with Purushottam, but they had no dispute with Sanjay Kumar. From the cross-examination of PW-6 Pravesh and PW-8 Purushottam, it is evident that when Bijendra had met them near the bridge, no dispute had occurred between them and Sanjay had stayed back with Bijendra in a congenial atmosphere. From the statements of PW-6 and PW-8, it also does not transpire that Bijendra was accompanied by any other person, when he had met with PW-6, PW-8 and Sanjay near the bridge on the road.
So far as the appellants are concerned, they had no motive to commit the murder of Sanjay Kumar nor it can be inferred from the testimonies of PW-6 Pravesh and PW-8 Purushottam that Bijendra had any intention to commit the murder of Sanjay Kumar. As per PW-6 and PW-8 when they had gone to the house of Bijendra, at that time appellant Hasan had a scuffle with Purushottam and not with Sanjay or Pravesh. Hence, the statements of PW-6 and PW-8 fail to advance the prosecution (Downloaded on 07/06/2021 at 12:22:46 AM) (10 of 13) [CRLA-591/2014] case with regard to the involvement of the appellants in the crime.
PW-7 Rajendra deposed that he was residing near the house of Deepchand. Bijendra and Hasan were working as drivers on a dumper. Hasan was living in the house of Bijendra for the last two years. On the day of incident, he heard some noise from the house of Deepchand, involving Bijendra, Hasan and one boy whose name he did not know and Krishna mother of Bijendra. It was their family matter. He could hear that Sanjay be murdered. He did not go near, but heard the noises form the boundary of his own house. Then he returned home. Bijendra, Hasan and another boy brought their dumper to his house at night and inquired from him as to where had Sanjay gone. He asked them as to what work they had with Sanjay. Bijendra and Hasan had told him that they would crush Sanjay under the dumper. Then, they went away with the dumper and in the morning at 6.00 a.m., he came to know that Sanjay had been murdered. The said witness in his cross-examination has deposed that he was a relative of Purushottam and Sanjay. The statement of PW-7 Rajendra fails to inspire confidence as the statement of PW-7 is not corroborated by the testimony of PW-6 Pravesh and PW-8 Purushottam. As per PW-6 and PW-8 they had left Sanjay with Bijendra on the road. Then, it is not understandable as to why Bijendra and Hasan would inquire about the whereabouts of Sanjay from PW-7 Rajendra when Sanjay had already stayed back with Bijendra near the bridge on the road, as deposed by PW-6 and PW-8. Hence, no reliance can (Downloaded on 07/06/2021 at 12:22:46 AM) (11 of 13) [CRLA-591/2014] be placed on the testimony of PW-7 and same fails to advance the prosecution case.
PW-9 Sanjay Kumar son of Rampal deposed that on 5.8.2012 at about 7/8.00 p.m., he was sitting in the house of Rajendra. They heard noises from the boundary and saw that Bijendra Rahman and another boy, Krishna, Deepchand and their two daughters were present and they were talking loudly. Ballu said that his daughter be sent with him and he be give Rs.33,000/-. Hasan was living in the house of Deepchand and he gave beatings to the said person. Then they returned home because it was their family dispute. After sometime, Bijendra Rahman and another person came on a dumper and were saying that the said persons would be finished. When they got down from the dumper then they were having sticks in their hands. Accused asked from them as to where the complainant party had gone. Sanjay who travelling on his motorcycle, was lagging behind and he was hit by the dumper from behind. In his cross- examination, he deposed that Purushottam, Pravesh and Sanjay were his nephews. He admitted that no talk had taken place between Sanjay and Bijendra at the bridge. Thus, no reliance can be placed on the testimony of PW-9 also, as the statement of this witness is not corroborated by the version given by PW-6 Pravesh and PW-8 Purushottam. It appears that the said witness being a relative of the complainant party has been introduced as a witness to strengthen the prosecution story.
Thus, from the perusal of the statements of material witnesses discussed above, it transpires that the witnesses had given different versions with regard to the incident. So far as the (Downloaded on 07/06/2021 at 12:22:46 AM) (12 of 13) [CRLA-591/2014] PW-6 and PW-8 are concerned, their case is that they had gone to the house of the Bijendra along with Sanjay. A scuffle had taken place between Purushottam and Hasan. When they left the house of Bijendra, they met Bijendra on the road near the bridge. There also no dispute took place between the accused and Sanjay, Purushottam and Pravesh. Purushottam and Pravesh returned home, whereas, Sanjay stayed back with Bijendra. At that time, no dispute had occurred between deceased Sanjay and Bijendra. So far as the alleged eye-witness PW-3 Imran is concerned, his statement fails to inspire confidence as discussed above. PW-7 Rajendra and PW-9 Sanjay Kumar have introduced a different version and their statements also fail to advance the prosecution case. It appears that the said witnesses being relatives of the deceased have deposed against the appellants to strengthen the prosecution case. Statements of PW-7 and PW-9 are at variance with the statements of PW-6 and PW-8. Appellants had no motive to commit the murder of Sanjay.
It is a settled proposition of law that the prosecution has to prove its case against an accused beyond the shadow of reasonable doubt by leading cogent and convincing evidence. An accused is presumed to be innocent till proved guilty. Whenever, there is doubt in the prosecution story, benefit of the same has to be extended to the accused.
In the present case, since the statements of the material witnesses examined by the prosecution are at variance with each other, the prosecution story is rendered doubtful. The motorcycle of the deceased was found near his dead body. It has also been stated by the investigating officer in his cross- (Downloaded on 07/06/2021 at 12:22:46 AM)
(13 of 13) [CRLA-591/2014] examination that it had rained at the time of the incident. Hence, there is possibility that the motorcycle of the deceased might have accidently slipped and he might have suffered injuries or he might have been hit accidently by some other vehicle.
Hence, after examining the totality of the facts and circumstances of the present case, we are of the opinion that the appellants are entitled for acquittal by giving them benefit of doubt.
Accordingly, appeals are allowed. Impugned Judgment/order dated 11.04.2014 passed by the Trial Court are set aside. Appellants are acquitted of the charges framed against them by giving them benefit of doubt. Appellant Bijendra S/o Shri Deepchand 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 Bijendra S/o Shri Deepchand and appellant Hasan Mohd. @ Vikram are directed to furnish a personal bond in the sum of Rs.25,000/- each, 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 appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
(GOVERDHAN BARDHAR),J (SABINA),J
Mohita /64-65
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