State of Rajasthan vs Vinod Kumar and Others

Gopal Krishan Vyas, J.—The instant cr. leave to appeal has been filed by the State of Rajasthan under Section 378(III) and (I) of the Cr.P.C. against the judgment dated 3.10.2013 passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Hanumangarh in Original Cr. Case No. 203/2012 whereby the respondents was acquitted from the charge of offences under Section 302/34 IPC and under Section 3(2) (v) of the SC/ST (Prevention of Atrocities) Act, 1989 and further acquitted the respondent No. 2 Raju @ Rajiya @ Shishpal for the charge under Section 3/25 of the Arms Act also.

As per brief facts of the case, the complainant Kangu Singh S/o Vachan Singh, resident of 29D Gharsana submitted a written report before the SHO, Police Station, Tibbi on 2.9.2010 at about 10.00 a.m. to the effect that he took agricultural land of 5 acres and 7 acres on contract for cultivation situated at Kariwala Rohi Bahipa village respectively from Pal Singh and Rajiram. It is stated that on the land of Pal Singh, his son Satpal his children and Kaka Singh were residing. It is further alleged in the FIR that today in the morning at 5.00 pm his relative informed on phone that dead body of Satpal is lying near Tibbi Road. Upon such information an inquiry was made by him from Kaka Singh then he told that Yesterday at about 3.30 p.m. Bagh Ali S/o Ballu Khan gave a Phone call to Satpal and asked him to come Tibbi and upon calling he and Satpal went on motorcycle to Tibbi but before 5 kms from Tibbi again phone call of Bhagh Ali was received by Satpal in which he said that you stay on spot, we are coming there.

At about 5.00 pm one white maruti car came from the side of village Tibbi and stopped near them at that time in the said vehicle Bhagh Ali, Mangal Singh and Rafiq so also one more person were sitting. They asked Satpal to sit in the car and after taking him in the car, they asked Kaka Singh that you may go back to Dhani and upon asking he came back on motor cycle to the Dhani. As per the allegation in the FIR from last 3-4 days Satpal was receiving phone call from Bhagh Ali and other person. Upon receiving above information about Satpal, Kaka Singh and his relative Surjeet and Sarpanch Gurnayab Singh and Sarpanch Kashmir Singh went to the Police Station, Tibbi from where they got information that dead body of Satpal is lying in mortuary of the hospital. The aforesaid person went to the hospital and saw the body of Satpal. Meaning thereby, as per allegation of complainant Bhagh Ali, Mangal Singh and Rafiq, so also, one more person killed his son Satpal.

The SHO, Police Station, Tibbi registered an FIR No. 302/2010 under Section 302/34 read with Section 3(2) (v) of the SC/ST (Prevention of Atrocities) Act, 1989 and commenced investigation. After completing investigation, the SHO, Police Station, Tibbi filed challan against respondent Vinod Kumar and Raju @ Rajiya @ Shishpal under Section 302/34 IPC and under Section 3(2) (v) of the SC/ST (Prevention of Atrocities) Act, 1989 in the court of Civil Judge (Jr.Div.)-cum-Judicial Magistrate, Tibbi from where the case was committed to the court of Special Judge, SC/ST (Prevention of Atrocities) Cases, Hanumangarh and the said court after framing charge against the respondents for offence under Section 302/34 IPC and under Section under Section 3(2) (v) of the SC/ST (Prevention of Atrocities) Act, 1989 commenced the trial.

The Police Station, Tibbi filed challan against Raju @ Rajiya @ Shishpal for offence under Section 3/25 of the Arms also, that too, was committed for trial in the aforesaid court. The learned trial court framed the charge under Section 302/34 and 2(2)(v) of the SC/ST (Prevention of Atrocities) Act and under Section 3/25 of the Arms Act also against Raju @ Rajiya @ Shishpal. To prove the case in trial, the prosecution produced 23 prosecution witnesses including complainant PW-11 Kangu Singh and other witnesses and to prove the case of extra judicial confession the statement of PW-12 Nabisher were recorded and witnesses for recovery of gun was also produced before the Court. In trial 45 documents were exhibited and after recording evidence of prosecution, the learned trial court recorded the statements of accused respondents under Section 313 Cr.P.C. in which the respondents said that they have been implicated due to enmity and false story of the prosecution. Further, it is stated by respondents some other persons are doing business of fake currency and they tried to indulge them with the crime and upon objection they implicated them in the false case of murder.

After recording entire evidence, the learned trial court heard the final arguments and finally acquitted the respondents from the charges leveled against them.

The learned Public Prosecutor vehemently argued that a gross error has been committed by the trial court in not appreciating the evidence led by the prosecution in its right perspective because the prosecution has proved its case beyond reasonable doubt which is evident from the statement of PW-5 Subhash Chandra and PW-12 Nabisher as well as the admission made by the respondents and recovery of 12 bore gun at the instance of accused Raju @ Rajiya @ Shishpal, therefore, it is apparently clear that respondents caused fire arm injury to the deceased Satpal which resulted into death. It is further submitted that even though there is no direct evidence on record but circumstantial evidence loudly speaks that it is a case in which the respondents are guilty of offence of murder but learned trial court completely ignored above facts and evidence to prove the prosecution case therefore, the respondents are not entitled for acquittal. Lastly, it is argued that as per the statement of prosecution witnesses PW-11 Kagu Singh and PW-3 Gurnam @ Gurnayab Singh it is clear that the respondents were having enmity with Satpal, therefore, they committed murder of Satpal. Therefore, on the basis of recovery of gun and the evidence of PW-12 Nabisher and PW-5 Subhash Chandra prosecution has proved its case beyond reasonable doubt, therefore, the instant leave to appeal may be accepted and the respondents may be convicted for the offence of murder and recovery of gun.

Per contra, the counsel appearing for the respondents Mr. Vipin Makkad and Kulwant Singh vehemently argued that admittedly there is no direct evidence or eye witnesses to prove the prosecution case. More so, the FIR was filed by PW-11 Kangu Singh against Bhagh Ali, Mangal Singh and Rafiq and one more person but after investigation the police filed challan against the respondents Vinod Kumar and Raju @ Rajiya @ Shishpal only on the basis of circumstantial evidence of recovery of so called evidence of phone call to PW-12 Nabisher but the learned trial court after assessing the credibility and reliability of the statement of these witnesses held that prosecution has failed to prove its case beyond reasonable doubt, therefore, the finding of the learned trial court that no offence is committed by the respondents does not require any interference. It is also argued that there is no evidence on record to connect respondent Vinod Kumar with the crime because nobody has identified him in the investigation conducted by the police upon which challan has been filed. Therefore, it is a case in which prosecution has failed to prove its case beyond reasonable doubt, therefore, the learned trial court has rightly acquitted the accused respondents from charge of murder .

After hearing the learned counsel for the parties we have perused the judgment and the entire evidence on record. Admittedly, there is no eye witnesses in this case, and challan was filed on the basis of so called extra judicial confession as per the statement of PW-12 Nabisher and recovery of gun from respondent Raju @ Rajiya @ Shishpal. We have perused the statement of PW-12 Nabisher in which following allegation was made by him, which reads as under:--

Upon perusal of the above statement it cannot be said that conviction can be based upon such allegation because there is no mention that respondent Raju @ Rajiya @ Shishpal asked that they will kill Satpal. More so, it emerges from the statement of PW-12 Nabisher that there was transaction of money with the respondents and he was not returning his money, therefore, the learned trial court has rightly discredited the evidence of this witness so as to convict the accused respondents.

We have also perused the statement of PW-5 Subhash Chandra, the said witness is also reiterating the allegation of PW-12 Nabisher but upon perusal of this statement it cannot be said that anything was said by the respondents that they killed Satpal in place of PW-12 Nabisher. Therefore, in our opinion, the prosecution has failed to establish the case against respondents that they killed deceased Satpal. Therefore, the finding of the learned trial court for acquittal does not require any interference on the basis of aforesaid evidence.

We have also considered the question of recovery of gun. In our view, if prosecution has failed to prove its case with regard to offence under Section 302 IPC for murder of Satpal then even if the Gun was recovered at the instance of Raju @ Rajiya @ Shishpal it cannot be said that prosecution has proved the case of murder on the basis of so called recovery of gun. The learned trial court while deciding the issue of recovery of gun held that prosecution has failed to comply mandatory provisions of Section 39 of the Arms Act and also failed to obtain the prosecution sanction from the District Collector for prosecution under Section 3/25 of the Arms. Therefore, in our opinion, no error has been committed by the learned trial court in acquitting the respondents from the charge under Section 302/34 and under Section 3(2) (v) of the SC/ST (Prevention of Atrocities) Act, 1989 and under Section 3/25 of the Arms Act while giving benefit of doubt.

In view of the above, we are not inclined to grant leave to appeal filed by the State of Rajasthan against the judgment dated 3.10.2013 passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Hanumangarh in Cr. Original Case No. 203/2012.

Hence, the cr. leave to appeal is hereby dismissed.