Dharmveer Singh, Dharmveer, Kaka @APPELLANT@Hash State of Rajasthan & Ors

Offence,Sentence

U/s 396 IPC,"Life Imprisonment with fine of Rs. 2,000/-

,"and in default of payment of fine to further undergo six months’

R.I.

U/s 302 IPC,"Life Imprisonment with fine of Rs. 2,000/and in default of payment

of fine to further undergo six months’ R.I.

   Both the sentences were ordered to be run concurrently.,

Kesaram are the witnesses of the Memo of taking Chance Finger Prints from the car. Ramesh Khandelwal appeared as P.W. 12 and proved the,

recovery of chance finger prints. After taking the finger prints of the accused, the same were sent for comparison to the F.S.L. As per the F.S.L.",

Report (Ex.P/104), the chance finger prints were found to be similar and identical with the specimen left thumb impression of the accused Sarabjeet",

Singh.,

Accused â€" Nawab Akhtar,

He was arrested vide Arrest Memo (Ex.P/100) dated 22.07.2007. In pursuance to his statement under Section 27 of the Evidence Act (Ex.P/48),

dated 27.07.2007, the mobile of the deceased was recovered from his house vide Ex.P/58 on 27.07.2007. The recovery witnesses of the said mobile",

were Dilip Bhai (P.W. 26) and Narendra Singh (P.W. 22). P.W. 26 â€" Dilip Bhai turned hostile.  However, P.W. 22 â€" Narendra Singh proved",

the recovery of the mobile from the box of the house of the accused Nawab Akhtar.,

Accused -Â Dharamveer Singh alias Dharamveer alias Kaka,

 He was arrested vide Arrest Memo (Ex.P/101) dated 22.07.2007. In pursuance to the statement under Section 27 of the Evidence Act (Ex.P/49),

dated 27.07.2007, he got recovered two country made pistols hiding in the flower pot covered with the sand vide Recovery Memo (Ex.P/61) dated",

27.07.2007. The said recovery of the country made pistols at his instance was witnessed by Dilip Bhai (P.W. 26) and Narendra Singh (P.W. 22).Â,

P.W. 26 â€" Dilip Bhai turned hostile. However, P.W. 22 â€" Narendra Singh proved the said recovery.",

Accused â€" Utsav alias Kaka,

 He was arrested vide Arrest Memo (Ex.P/99) dated 25.06.2007. In pursuance to the statement under Section 27 of the Evidence Act (Ex.P/44),

dated 30.06.2007, he got recovered the photo copy of the bills regarding purchase of the tavera car vide Ex.P/65 dated 01.07.2007. He has since",

died.,

Learned counsel for the appellants while arguing for the respective accused submitted that there is no eyewitness. It is a case of circumstantial,

evidence. The presence of the accused on the scene of occurrence is doubtful. No specific role was attributed to any of the appellants. There,

is no evidence of the last seen. As per the complainant, the present accused-appellants hired the taxi from the deceased. No independent witness",

was examined by the prosecution to prove the same. There is no evidence that the accused who hired the taxi in the morning of 24.05.2007 from,

Ambaji to Mount Abu are the same persons who killed the deceased. The test identification parade is doubtful. The accused were shown to the,

witnesses before the test identification parade. There is no motive. Even the tavera car was found on the kachcha way going from Kivarali bypass,

to village Derna, which is in Mount Abu itself. It was further contended that the appellant â€" Dharamveer Singh alias Dharamveer alias Kaka who",

was charged under Section 3/25 of the Arms Act has been acquitted by the same judgment. The same in itself falsifies the entire prosecution story,

against the appellants. It was further contended that the country made pistols were not produced in the Court and no article was marked on,

them. The F.S.L. Report qua said country made pistols is not conclusive of the fact that the country made pistols which were allegedly recovered,

were used for the offence. It was further contended that the whole case is based on the investigation conducted by P.W. 28, Amar Singh, the",

S.H.O. Police Station Abu Road Sadar. He was not the investigation officer. It is not understood as to how he stepped into the case and,

therefore, he has only been planted by the prosecution to prove their case. The recovery witness of the country made pistol i.e. P.W. 26 Dilip Bhai",

has turned hostile. P.W. 22 â€" Narendra Singh is the police constable and therefore, cannot be said to be an independent witness. Learned",

counsel for the accusedappellants Dharamveer Singh alias Dharamveer alias Kaka and Sarabjeet Singh alias Sarabjeet alias Ajay submitted that they,

have been enroped in the present case on the basis of the statement of the co-accused. It was further argued that the offence under Section 396 of,

I.P.C. is not made out as there is no evidence of loot. Moreover, they can either be convicted under Section 302 or 396 and they cannot be",

convicted for both the offences. Further, it was contended that P.W. 5 â€" Vipin, who is stated to have informed the complainant is a witness who",

took the deceased to the hospital has turned hostile. In these circumstances, the prosecution has failed to prove the case against the accused-",

appellants beyond the reasonable doubt.,

Out of total 05, the accused-appellant No. 2 â€" Utsav alias Lala in D.B. Criminal Appeal No. 107/2010 has since died. Therefore, the appeal",

stands abated qua the appellant â€" Utsav alias Lala. The Criminal Appeal No. 107/2010, therefore, survives qua the appellant â€" Javed Shah only.",

The present case is the case of circumstantial evidence. In order to prove the case, it is necessary to link the chain of the events. Therefore, we",

need to examine as to whether in the facts of the present case and the evidence produced on record, the prosecution has succeeded in doing so or not.",

Banshi Lal is the complainant. He is the son of the deceased Mafatlal. He appeared as P.W. 2 and submitted a written report (Ex.P/2). A,

perusal of the written report (Ex.P/2), his statement before the police (Ex.D/2) as well as statement before the Court while appearing as P.W. 2",

shows that his version in all of them is consistent. He is the witnesses of last seen. He is a natural witness as he too is a cab driver and operates,

his car from the same point as his father, the deceased. As per Banshi Lal, 05 young boys hired the tavera car bleonging to his father, the deceased",

Mafatlal, in his presence. He knows each and every details even to the extent of the amount on which the car was hired for Mount Abu in the",

morning of 24.05.2007. On the same day at around 11.30 A.M., his father even made a telephone call to him on his mobile that he was taking the",

party for sightseeing. His father then called at 1.00 P.M. and 7.00 P.M. again.  On the same day at about 8.30 P.M., he was informed that",

someone had killed his father and taken the car. He had also identified the accused in the jail as per Ex.P/8, P/9 and P/10. He also recognized the",

accused Javed Shah, Nawab Akhtar and Dharamveer Singh alias Dharamveer alias Kaka as well as the other two, who were present in the court on",

the relevant day. This witness had given the details of the 05 persons in the written report. The said description matches the description of the 05,

accused persons whom he duly recognized.,

P.W. 4 â€" Jeevraj Bhai was an employee of the hotel Holiday Home, Ambaji, who confirmed that 05 persons had come for renting out a room. He",

recognized Javed Shah. He further stated that he also recognized the 04 persons accompanying Javed Shah, who were present in the court on the said",

date.Â,

The red Tavera Car No. RJ-24-TA-378 paid the toll tax at the entry point of Mount Abu for 05 persons. The record of the same is produced as,

Ex.P/64.,

P.W. 5 â€" Vipin was produced by the prosecution as another taxi driver, who knew the deceased Mafatlal and saw Mafatlal driving his car at",

Anadara point. He verified that on that particular day, he saw the car of Mafatlal standing on the side while coming down from Mount Abu. He",

passed by the car and suddenly heard the noise of a tyre burst. Accordingly, he stopped his own car to check as to which tyre had burst and told",

the passenger of his car to see as to which tyre had burst. The moment his passenger got down, he saw the tavera car passed by him in full",

speed. He sat back in his own car. The moment he was about to start the car, he saw Mafatlal came towards him saying that some people had",

snatched his car and ran away with it. Mafatlal asked him to chase the car but the moment, he sat in the car, he fainted. Thereafter, P.W. 5 â€"",

Vipin took him to the hospital. No doubt, P.W. 5 â€" Vipin was declared hostile but nevertheless, he verified and admitted that he took the deceased",

Mafatlal to the hospital and how some persons had run away with the tavera car after killing him. Â,

From the above, it is evident that the accused Javed Shah along with other 04 persons had stayed in the hotel Holiday Home, Ambaji on 23.05.2007.Â",

The name of his other companions who accompanied him had been disclosed by Javed Shah. Javed Shah being an accused, his statement no doubt",

may not be sufficient to enrope the other accused as the ones who were accompanying him but for the clinching evidence of the finger prints of the,

accused Sarabjeet Singh alias Sarabjeet alias Ajay have matched with the chance finger prints taken from the tavera car. The presence of accused,

Javed Shah himself is beyond doubt. His signature in the register of the hotel Holiday Home has matched with his admitted signatures. The,

accused Dharamveer and Nawab Akhtar along with other 03 have been identified by P.W. 2 â€" Banshi Lal as the ones who hired the car from his,

father. Two country made pistols have also been recovered from the accused Dharamveer in pursuance to the statement under Section 27 of the,

Evidence Act. The recovery of mobile of the deceased from the accused Nawab Akhtar has also been proved.,

The next question would be as to whether they are the same persons who killed the deceased. The chain of events leave no doubt that the persons,

hiring the car and those who killed the deceased and thereafter ran away with the car are one and the same persons. This is evident from the fact,

that after the deceased left with the 05 accused at around 9.00 A.M., the son of the deceased talked to his father at 11.30 A.M., who told him that he",

was now going for sight seeing with the party. From the time of the sight seeing, which seems to have begun at 11.30 A.M., it is likely to take few",

hours. As per P.W. 2 â€" Banshi Lal, he talked to his father at 11.30 A.M. then, 1.00 P.M. and thereafter again at 7.00 P.M., when he was finally",

informed by his brother Narayan around 8.30 P.M. of the murder. In normal circumstances, it might be said that the time gap from morning to",

evening as last seen evidence is long but in the facts of the present case, where the car was hired in the morning for going from Ambaji to Mount Abu",

and then to do sightseeing, it is evident that the deceased who was the driver of the vehicle and the persons who hired the car remained with the",

driver and the car during this entire period.  Once it is established that these 05 persons were together at the time of hiring of the vehicle in the,

morning of 24.05.2007 and they remained with the deceased throughout the day till he was killed, there is no doubt that the persons who hired the",

vehicle and killed the deceased are same.,

The argument of the learned counsel for the appellants that the country made pistols were never marked as article and the accused Dharamveer,

Singh has been acquitted of the Arms Act is not fatal in the facts of the present case. The acquittal under the Arms Act is on technical ground of,

not obtaining the requisite sanction. Therefore, such an acquittal under the Arms Act does not wash out the other evidence against the accused of",

having committed the offence. The statement of the accused Dharamveer Singh under Section 27 of the Evidence Act is Ex.P/49. In pursuance,

to the said statement, two country made pistols were recovered vide Ex.P/61. The said recovery was proved by P.W. 22 â€" Narendra Singh.Â",

The statement of P.W. 22 cannot be rejected just because he is a police constable. The said country made pistols were got recovered by the,

accused Dharamveer Singh from the flower pot covered with the sand. Thus, only the accused Dharamveer Singh could have known about the said",

country made pistols. The said country made pistols were sent for examination to the F.S.L. The F.S.L. Report is Ex.P/102. As per the said,

F.S.L. Report, the said 12 bore country made pistols were found serviceable. As per the examination of the barrels residues, two firearm had also",

been used, although, the definite time could not be ascertained. Even, the sixteen lead pellets as recovered from the body were also said to be",

normally used in 12 bore ammunition. Thus, the recovery of two country made pistols and the F.S.L. Report of the said country made pistols cannot",

be ignored in the absence of the same being not produced in the Court and marked as article.Â,

The next argument of the learned counsel for the appellants that the conviction could not have been done both under Section 396 and 302 of I.P.C.,

does not help or change the complexion of the case. It does not render the conviction as bad.   For conviction under Section 396 of I.P.C., it",

requires the involvement of 05 persons while committing the dacoity and murder. The evidence on record shows the presence of 05 persons who,

came together and rented the car of the deceased. They all 05 went in the car of the deceased. The presence of 05 persons in the car is duly,

recorded at the toll point of the Mount Abu. The fact that they committed dacoity is evident. As per the witness P.W. 5 â€" Vipin, on that",

particular day, the car of Mafatlal was standing on the side while coming down from Mount Abu. He heard the noise of tyre burst while passing the",

said car. He thought that the tyre of his own car had burst and therefore, he stopped at some distance and made his passenger to see as to which",

tyre had burst. At that moment, he saw the same Tavera car belonging to the deceased cross him in high speed, which was followed by Mafatlal",

coming on foot towards the car of Vipin. Before he collapsed, Mafatlal informed that some people had snatched the car and run away. It was",

not the noise of tyre burst but the gun fire. The accused had run away with the car after killing Mafatlal. Thus, all the ingredients of Section 396",

of I.P.C. are made out.,

The argument of the learned counsel for the appellants that the said car was found at some distance and in case, they wanted to commit dacoity, they",

would not have left the car at the place from where it was found i.e. on the kachcha way going from Kivarali bypass to village Derna is answered in,

the prosecution story itself. It is duly mentioned in the F.I.R. as well as statement of P.W. 2 â€" Banshi Lal and other witnesses that Nakabandi had,

been done by the police on the Mount Abu Road leaving no way for the car to pass by the exit point even before the complainant called up the police,

as the police had already been informed. The accused would have been easily apprehended, in case, they had tried to pass or leave Mount Abu in",

the said car. It was in these circumstances that the said car was abandoned by the accused to save themselves from being caught red handed.Â,

Thus, the accusedappellants were rightly convicted under Section 396 of",

I.P.C.,

Now the question is whether the conviction could have been done under Section 302 of I.P.C. as well. The charges were framed both under,

Sections 396 & 302 of I.P.C. Both Sections 396 and 302 of I.P.C. carry the punishment of death sentence or imprisonment for life and liable to,

fine. The only difference is that Section 396 of I.P.C. also provides imprisonment uptil 10 years. In the present case, the punishment awarded is",

imprisonment for life under both the sections but they are ordered to run concurrently. Hence, we are of the opinion that although, the conviction under",

Section 396 of I.P.C. alone was sufficient, the conviction under Section 302 of I.P.C. does not really affect the outcome in the facts of the present",

case. The said error, in any case, can always be rectified by this Court. Accordingly, we deem it proper to set aside the conviction and sentence under",

Section 302 of I.P.C. and uphold the conviction and sentence under Section 396 of I.P.C. qua appellants Javed Shah, Sarabjeet Singh alias Sarabjeet",

alias Ajay, Nawab Akhtar and Dharamveer Singh alias Dharamveer alias Kaka.",

In a case of circumstantial evidence, there is hundred percent importance of linking of the chain. We do not find that the chain of link broken in any",

manner. Hence, the prosecution has proved the case under Section 396 of I.P.C. against the accused-appellants beyond reasonable doubt.Â",

Accordingly, all the three appeals against the conviction under Section 396 of I.P.C. qua appellants Javed Shah, Sarabjeet Singh alias Sarabjeet alias",

Ajay, Nawab Akhtar and Dharamveer Singh alias Dharamveer alias Kaka are dismissed. However, the conviction and sentence under Section 302",

of I.P.C. is set aside and the impugned Order and Judgment 18.08.2009 passed by the trial court is modified to the said extent. The appellants shall,

now undergo the sentence of life imprisonment under Section 396 of I.P.C. as already awarded to them by the trial court.,