SANJIV KHANNA, J.
Having heard the learned counsel for the parties, we are
inclined to dismiss Criminal Appeal Nos. 276 and 277 of 2022,
arising out of D.B. Criminal Appeal Nos. 1284 and 1444 of 2017,
preferred by the appellants - Jagdish and Prakash, convicting them
under Section 302 read with Section 34 of the Indian Penal Code,
1860 (‘IPC’). However, we have acquitted the appellants - Jagdish
and Prakash from the charge under Section 397 of the IPC and
convicted and sentenced them under Section 392 of the IPC.
The appellants - Jagdish and Prakash were identified by Shiv
Bhagwan1, cousin brother of the deceased - Ram Chandra, who is the
complainant/informant in the First Information Report (FIR) No.
35/2009 dated 06.03.2009, registered at Police Station Losal, Sikar
District, Rajasthan, initially under sections 365 and 392 of the
BABITA PANDEY Shiv Bhagwan had, in his written report, which was marked asDate: IPC.2023.02.23
Exhibit P-7, stated that the deceased - Ram Chandra had recently
bought Bolero vehicle bearing No. RJ-29 UA 261. On 05.03.2009 at
about 08:30 p.m., Shiv Bhagwan had seen the deceased - Ram Chandra
at the bus stand interacting with 3-4 persons, as they wanted to
hire the vehicle to take them till Kuchaman. The deceased - Ram
Chandra had started off with 4 persons for Kuchaman. Thereafter,
the deceased - Ram Chandra did not return home at night. In the
morning, Shiv Bhagwan had proceeded to the local bus stand and
spoke to Durga Ram, a co-villager, who had stated that he had seen
the deceased - Ram Chandra fighting with 3-4 persons at Kuchaman
stand, Losal.
On 06.03.2009 at about 03:00 a.m., Bolero vehicle No. RJ-29
UA 261 was intercepted by the Ratangarh police. Constable Mani Ram2
and Head Constable Rekharam3 have in unison deposed that they were
on night patrol, when they saw Bolero vehicle No. RJ-29 UA 261
being driven in a rash and negligent manner. Two persons got down
from the vehicle and ran away, but one of them, who was identified
as the appellant - Jagdish, was caught. Appellant - Prakash, along
with another person, who was later found to be a juvenile, who were
in the vehicle, were detained. Blood stains were found on the back
seat of the vehicle. Glasses and blood stained clothes were found
and seized. The deposition of Constable Mani Ram4 and Head
Constable Rekharam5 are reliable and credible. There is hardly any
ground to disbelieve their version on the arrest of the appellants
- Jagdish and Prakash.
On the disclosure statement of the appellants - Jagdish and
Prakash, marked as Exhibit P-39 & Exhibit P-38 respectively, dead
body of Ram Chandra was discovered in the old well near the bus
stand, Rajpura. These facts are proven and established by Constable
Shiv Bhagwan6 and Constable Mani Ram7. These facts, Shiv Bhagwan’s
identification of the appellants - Jagdish and Prakash in the test
identification parade, and the dock identification as the persons
he had seen with the deceased - Ram Chandra on 05.03.2009,
establish the prosecution’s against the appellants – Jagdish and
Prakash, beyond doubt. Their appeals, challenging the conviction
and sentence under Sections 302 read with Section 34 of the IPC,
are dismissed. However, in the absence of evidence, their
conviction under Section 397 of the IPC, and that too with the aid
to Section 34 of the IPC, is not warranted and is contrary to law.
Instead, they are convicted under Section 392 read with Section 34
of the IPC and sentenced to imprisonment of 5 years, fine of Rs.
2000/-, and in default of payment of fine, to undergo simple
imprisonment of three months. The sentences will run concurrently.
However, the Criminal Appeal No. 278 of 2022 arising out of
D.B. Criminal Appeal No. 1633 of 2017, preferred by the appellant
-Bablu @ Balveer @ Roop Singh, in our considered opinion, has to be
allowed.
The appellant – Bablu @ Balveer @ Roop Singh was not arrested
when the vehicle was seized and the appellants - Jagdish and
Prakash were arrested. Appellant – Bablu @ Balveer @ Roop Singh was
arrested in the present case from Gangapur City Jail on 13.05.2010,
i.e. more than one year after the occurrence. Constable Shiv
Bhagwan, Head Constable Rekharam and Constable Maniram in their
depositions do refer to the presence of four persons in the
vehicle, albeit the report/first information given by the
complainant/informant - Shiv Bhagwan states that 3-4 persons had
interacted with the deceased - Ram Chandra for booking his Bolero
vehicle No. RJ-29 UA 261. Test identification parade by the
complainant/informant - Shiv Bhagwan was conducted on 28.06.2010,
which is more than 13 months after the occurrence. The police
officers were not taken to the identification parade. Prosecution
relies on recovery of a car key allegedly from Bablu @ Balveer @
Roop Singh, but this evidence must be disbelieved, as it is not the
case that the vehicle key was missing, or the recovered key was
matched with the vehicle. Given the divarication and divergence, we
are not inclined to accept the dock identification of Bablu @
Balveer @ Roop Singh by the complainant/informant - Shiv Bhagwan,
as the sole basis to uphold the conviction of Bablu @ Balveer @
Roop Singh.
We would, accordingly, give benefit of doubt to the appellant
– Bablu @ Balveer @ Roop Singh, his conviction is set aside and he
is acquitted. The appellant – Bablu @ Balveer @ Roop Singh is
directed to be released forthwith, unless he is required to be
detained in any other case in accordance with law.
We clarify that the dismissal of the appeals filed by the
appellants - Jagdish and Prakash would not come in the way of their
filing representation(s) for premature release/remission. Any such
representation would be considered and decided in accordance with
law.
Pending application(s), if any, shall stand disposed of.
Criminal Appeal No(s). 276-278/2022
JAGDISH ETC. Appellant(s)
VERSUS
THE STATE OF RAJASTHAN Respondent(s)
([FOR FINAL HEARING/DISPOSAL].FOR ADMISSION and I.R. and IA No.142248/2021-CONDONATION OF DELAY IN FILING and IA No.142250/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.142249/2021-EXEMPTION FROM FILING O.T. and IA No.142253/2021-PERMISSION TO FILE LENGTHY LIST OF DATES IA No. 99808/2022 - GRANT OF BAIL)
Date : 22-02-2023 These matters were called on for hearing today.
CORAM :
For Appellant(s)
Mr. A. Sirajudeen, Sr. Adv.
Mr. Naresh Kumar, AOR
Mr. Xavier Felix, Adv.
For Respondent(s)
Mr. Nishanth Patil, AOR
Mr. Ayush P Shah, Adv.
UPON hearing the counsel, the Court made the following
O R D E R
The Criminal Appeal Nos. 276 and 277 of 2022, arising out of
D.B. Criminal Appeal Nos. 1284 and 1444 of 2017 are dismissed and
Criminal Appeal No. 278 of 2022 arising out of D.B. Criminal Appeal
No. 1633 of 2017 is allowed in terms of the non-reportable
judgment.
Pending application(s), if any, shall stand disposed of.
(Non-reportable judgment is placed on the file)