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2017 Supreme(SC) 1663
SUPREME COURT OF INDIA
N.V. Ramana, Prafulla C. Pant, JJ.
Bharat Gurjar - Appellant
Vs.
State of Rajasthan - Respondent
Criminal Appeal No. 285 of 2016
Decided On : 09-03-2017
For the Appellant :Ms. Deeksha Mishra, Rohan Sharma, Anoop Kr. Srivastav, Advocates
For the Respondents:K.T.S. Tulsi, Sr.Adv, Raj Kamal, Ms. Priyanka Agarwal, Ms. Mandakini Singh, Advocates, Ms. Archana Pathak Dave, Himanshu Sharma, Ms. Ankita Chaudhary, For Ms. Mridula Ray Bharadwaj, Advocates, Hasan Anzar, Advocate, of 2016; Paritosh Anil, Dhruv Mohan For Ms. Ruchi Kohli, Advocates
IMPORTANT POINT
When the role of two persons is similar and one is made accused, the other cannot be made prosecution witness unless he is granted pardon and made approver.
Headnote:(a) Indian Evidence Act, 1872 - Section 114 - Role of two persons similar - One made accused while other made prosecution witness without any application u/s 306, CrPC for tendering pardon - Incomprehensible - Evidence of such witness cannot be relied upon - a (Para 9, 10)
(2014) 7 SCC 716 - Relied upon
(b) Criminal trial - Witnesses not supporting prosecution - Informer not eye witness - Adding name of one of the accused on advise of accused turned approver - Evidence not corroborated - Prosecution story seriously doubtful - Appellants entitled to benefit of doubt. (Para 14, 15)
Adambhai Sulemanbhai Ajmeri v. State of Gujarat, (2014) 7 SCC 716 - Relied upon [Para 10]
Facts of the case:
The appellants were convicted and sentenced by trial court under Section 302 and 364 both read with Section 120-B, IPC.
The High Court maintained the conviction and the sentence.
Finding of the Court:
Appellants are entitled to benefit of doubt.
Result:
Appeal allowed.
ORDER :
1. These appeals are allowed by this Court after hearing the parties in the court today with the observations that reasons shall follow, as such the reasons are being given as under:
2. All these appeals arise out of common judgment and order dated 28.11.2013 passed by the High Court of Judicature for Rajasthan, Bench Jaipur, whereby the High Court has dismissed D.B.Criminal Appeal No.(s) 1260 of 2008, 38 of 2009, 188 of 2009, 189 of 2009, 205 of 2012, and 206 of 2012 by the order impugned before us. The High Court has upheld the judgment and order dated 6.12.2008 passed by the Additional Sessions Judge (Fast Track No.1), Kota, in Sessions Trial No. 195 of 2007,and maintained the conviction and sentence of the accused namely Lalit Verma (A-1), Bharat Gurjar (A-2), Rewariya @ Raju @ Devishanker (A-3), Mujeeb Pahalwan (A-4), Arvind @ Bhiaiyalal @ Babua Bihari, (A-5), Mohd. Khalid @ Khalik (A-6), J.P @ Jay Prakash (A-7) and Kallu @ Kuldeep (A-8), in respect of offence punishable under Section 302 and 364 both read with Section 120-B of Indian Penal Code, 1861 (IPC). Each of the convicts was awarded sentence by the trial court to undergo imprisonment for life and directed to pay fine of Rs. 100/- in default three months simple imprisonment, under Section 302 read with Section 120-B IPC; and 10 years rigorous imprisonment and fine of Rs. 100/- in default three months simple imprisonment in respect of offence punishable under Section 364 read with Section 120-B IPC. Except Mujeeb (A-4) all other convicts have challenged their conviction and sentence before us.
3. Prosecution story in brief is that PW 10 Rajendra Singh (Complainant) got lodged First Information Report (Ext.P-1) at Police Station Udyog Nagar, Kota regarding the incident dated 12.8.2007 at about 10 P.M. It is stated in the First Information Report that prior to the incident, there was quarrel between one Sonu and Kanhaiya, after Kanhaiya was bitten by dog of accused Kallu. And thereafter when the complainant's son Deepu (deceased) was sitting outside his shop, accused Lalit (A-1) came there and both of them along with PW 5 Shyam went to Hotel/Restaurant run by PW 2 Jeetu where they had meals together. Sonu's brother Kallu (A-8), Khalik(A-6) and Babua Bihari (A-5) said to have come there in a Alto Car belonging to J.P @Jai Prakash (A-7), and took Deepu with them where after Deepu was stabbed and murdered, and his dead body was found next day morning near MBS Hospital.
4. On the basis of above information, crime/FIR No. 192 of 2007 was registered at Police Station Udyog Nagar, Kota in respect of offence punishable under Sections 365, 143, 302,120-B IPC.
5. After the investigation, on 7.11.2007, first charge sheet was filed against five accused namely Lalit Verma (A-1), Bharat Gurjar (A-2), Rewariya @ Raju @ Devishanker (A-3), Mujeeb Pahalwan (A-4), Arvind @ Bhiaiyalal @ Babua Bihari, (A-5). Subsequently, supplementary charge sheet was filed on 12.2.2008 against accused Mohd. Khalid @ Khalik (A-6), and J.P @ Jay Prakash (A-7 . And third chargesheet was filed on 17.9.2008 against Kallu @ Kuldeep (A-8).
6. The case was committed by the Additional Chief Judicial Magistrate No.III, Kota to the Sessions Judge and the case was transferred to and ultimately tried by Additional Sessions Judge (Fast Track), Kota. The accused were charged in respect of offences punishable under Sections 302, 364 read with Section 120-B IPC. Accused Rewariya, Mujeeb, Arvind, Bharat Gurjar and Kallu were further charged in respect of offence punishable under Section 4/25 Arms Act. Accused pleaded not guilty on which prosecution got examined as many as twenty witnesses.
7. Out of twenty prosecution witnesses, the witnesses of material fact are only three namely - PW 2 Jitendra Singh Hoda, PW 3 Ram Laxman and PW 5 Shyam Verma. PW 2 Jitendra Singh Hoda stated that he knows nothing about the incident. This witness was got declared hostile by the prosecution. He has not supported the prosecution story at
