PREM vs STATE OF RAJASTHAN - 2015 Supreme(Raj) 574

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2015 Supreme(Raj) 574

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR.
MOHAMMAD RAFIQ And PRAKASH GUPTA, JJ.
PREM & OTHERS – Appellant
VS.
THE STATE OF RAJASTHAN. – Respondent
D.B. CRIMINAL APPEAL NO. 1464/2003 And D.B. CRIMINAL REVISION PETITION NO. 1189/2003.
Decided on : 16.10.2015

Advocates Appeared:
Mr. Biri Singh Sinsinwar, Senior Counsel assisted by Mr. Harendra Singh Sinsinwar, Mr. Rajesh Choudhary and Mr. Dhruv Atrey, for the appellants.
Mr. A.K. Gupta with Mr. Rinesh Gupta and Ms. Chandra Kala Sahu, for the appellant-Ram Narayan.
Mr. M.K. Kaushik with Mr. Bhupendra Singh Maderna, for the petitioner.
Mr. R.S. Raghav, Public Prosecutor, for the State.

Headnote:(a) Penal Code, Secs. 147, 148, 452, 302, 302/149, 323/149, 325/149 - Appeal against conviction - Investigation started before lodging of FIR - Substantial progress was made in investigation - Whether FIR and investigation were hit by Sec. 162 Cr.P.C. - Held - The entire case of prosecution cannot be thrown for this reason and reason of preparation of inquest report, and some of memos such as site plans etc much prior to lodging of FIR - The court has to be circumspect in evaluating evidence - It would not be right in acquitting accused person solely on account of defect. (Paras 24, 25)
        ¼d½ n.M lafgrk] /kkjk 147] 148] 452] 302] 302@149] 323@149] 325@149 & nks"kflf) ds fo:) vihy & ,Q-vkbZ-vkj- ntZ gksus ls igys vUos"k.k vkjEHk fd;k x;k & vUos"k.k esa lkjHkwr izxfr gqbZ & D;k ,Q-vkbZ-vkj- vkSj vUos"k.k na-iz-la- dh /kkjk 162 ls izgkfjr gq, & vfHkfu/kkZfjr & lEiw.kZ vfHk;kstu izdj.k dks bl dkj.k ls o tkap fjiksVZ vkSj eheksa esa ls dqNsd tSls ekSdk fjiksVZ bR;kfn ,Q-vkbZ-vkj- ds ntZ gksus ls cgqr igys gh rS;kj dh tk pqdh Fkh] bl dkj.k ls QSadk ugha tk ldrk & lk{; dk ewY;kadu djus esa U;k;ky; dks pkSdUuk jguk gksrk gS & ,d ek= deh ds dkj.k vfHk;qDr O;fDr dks nks"k eqDr djuk lgh ugha gksxkA ¼in la[;k 24] 25½
       (b) Penal Code, Sec. 302 - Discrepancies between medical evidence and ocular evidence - Duty of the Court - Effect of the discrepancies - Held - Minor Variation between medical evidence and occular evidence do not take away primacy of latter - Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eye witnesses, the testimony of eye witnesses cannot be thrown out - Where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. (Paras 27 to 29)
        ¼[k½ n.M lafgrk] /kkjk 302 & fpfdRlh; lk{; o p'en~nhn lk{; esa QdZ & U;k;ky; dk drZO; & QdZ dk izHkko & vfHkfu/kkZfjr & fpfdRlh; lk{; vkSj p'en~nhn lk{; esa xkS.k QdZ ls ckn okys dh loksZPprk [kRe ugha gks tkrh & fpfdRlh; lk{; tc rd vius fucU/ku esa lkjh lEHkkoukvksa ls bUdkj djus esa iw.kZ:is.k bruh nwj rd ugha tkrh ftruh fd p'en~nhn lk{kh }kjk crk;s x;s <x ls pksVsa ugha vk;h] rks p'en~nhn lk{kh ds lk{; dks QaSdk ugha tk ldrk & tgka p'en~nhn lk{kh dk o.kZu fo'oluh; vkSj fo'okl djus ;ksX; ik;k tkrk gS rks oSdfYid laHkkoukvksa dh vksj bZ'kkjk djus okys fpfdRlh; vfHker dks fu"d"kkZRed ds :i esa Lohdkj ugha fd;k tkosA
       ¼in la[;k 27 ls 29½

       (c) Penal Code, Sec. 302 - Plea of alibi - Scope - Held - Burden of proving plea of alibi only lay upon the accused - If the accused fails to bring on record any such evidence which would even by reasonable probability, establish their plea of alibi, such plea cannot be accepted - It is, in fact, required to be proved with certainty, so as to completely exclude the possibility of the presence of the accused at the place of occurrence and in the house which was the home of their relatives - The accused miserably failed to prove plea of alibi, which has rightly been rejected by trial Court. (Paras 40 to 49)
       Appeal and Revision dismissed.
        ¼x½ n.M lafgrk] /kkjk 302 & vU;= gksus dk vfHkokd~ & O;kfr & vfHkfu/kkZfjr & vU;= gksus dk vfHkokd~ lkfcr djus dk Hkkj dsoy vfHk;qDr ij gh gksrk gS & ;fn vfHk;qDr fdlh ,sls lk{; dks vfHkys[k ij ykus esa foQy jgrk gS] rks rdZ laxr vf/k- laHkkouk ls Hkh muds vU;= gksus dk vfHkokd~ dks LFkkfir djrk gks] rks ,sls vfHkokd~ dks Lohdkj ugha fd;k tk ldrk & okLro esa ;g fuf'prrk ds lkFk lkfcr djuk t:jh gS fd ?kVuk LFky ij vfHk;qDr dh mifLFkfr dh laHkkouk fcYdqy gh ugha Fkh vkSj og ?kj ij gh Fkk] tks muds fj'rsnkjksa dk Fkk & vfHk;qDr vU;= gksus ds vfHkokd~ dks lkfcr djus esa cqjh rjg ls foQy jgk] ftls fopkj.k U;k;ky; }kjk lgh <ax ls fujLr fd;k x;k gSA ¼in la[;k 40 ls 49½
       vihy o iqujh{k.k [kkfjt fd;sA

JUDGMENT :

MOHAMMAD RAFIQ, J.

This criminal appeal as well as criminal revision petition are both directed against the judgment and order dated 30.09.2003 passed by Additional District and Sessions Judge(Fast Track) No. 3, Bharatpur(hereinafter referred to as 'the trial court'), whereby the trial court has convicted 12 accused-persons and acquitted remaining 18. Criminal Appeal No. 1464/2003 has been fled by 12 accused-appellants assailing their conviction and sentence recorded by the trial court vide impugned judgment whereas Revision Petition No. 1189/2003 has been fled b y the complainant-Dinesh questioning the correctness of judgment passed by the trial court whereby it acquitted remaining 18 accused-persons.

2. The trial court by the impugned judgment has convicted accused-appellants Prem and Ram Narain for offences punishable under Sections 148, 302, 302/149 and 452 IPC. The trial court has also convicted Ram Narain for offences punishable under Sections 323/149 and 325/149 IPC. All the other accused-appellants; namely-Narpati; Daulat; Bhoop Singh; Soni Ram; Vijay Singh; Sabo @ Sahab Singh; Naresh; Shyam @ Brijesh; Guddu @ Devendra and Vishambhar, for offences punishable under Sections 147, 148, 452, 323/149, 325/149 and 302/149 IPC. Accused-appellants, convicted under Section 302 and/or 302/149 IPC, have been sentenced to life imprisonment with fine of Rs. 2,000/-, in default whereof, to further undergo simple imprisonment of six months. Accused-appellants, convicted under Section 452 IPC, have been sentenced to five years' rigorous imprisonment with fine of Rs. 500/-, in default whereof, to further undergo two months' simple imprisonment. Besides, accused-appellants, for their conviction under Section 148 IPC, have been awarded sentence of three years rigorous imprisonment with fine of Rs. 500/-, in default whereof, to further undergo two months simple imprisonment. Those accused-appellants, convicted under Section 325/149 IPC, have been sentenced with five years' rigorous imprisonment with fine of Rs. 1,000/-, in default whereof, to further undergo three months simple imprisonment. Those, convicted under Section 147 IPC, have been sentenced with two years' rigorous imprisonment. The accused-appellants, convicted under Section 323/149 IPC, have been sentenced with one year's rigorous imprisonment with fine of Rs. 500/-, in default whereof, to further undergo three/two months simple imprisonment.

3. Factual matrix of the case, essential for deciding the appeal as well as revision petition, is that a Parcha Bayan(Exhibit P-9) was given by Dinesh(P.W.1) at 6.10 P.M. on 04.03.1991 to Gainda Lal Yadav-ASI(P.W.23) at General Hospital, Bharatpur, alleging therein that on that day at 9.00 A.M., while Dinesh was taking food, in the Varandah of his house and his neighbour Ayodhya Prasad was drenching the newly constructed walls of his house, in order to moister them, accused Soni Ram, Ram Narain, Prem, Bhajan Lal, Ajay, Vijay, Radho, Sabo, Keshav, Narpat, Vishambhar, Bhoop, Doli, Radhey Shyam, Guddu, Shyam, Naresh, Vijay, residents of Ganwadi and 20-25 people of that village came and entered the house of Ayodhya Prasad and pulled him out in the lane. Accused Ram Narain brought out licensed gun of Ayodhya Prasad from his house. When these persons entered the house of informant Dinesh, he went into hiding and accused Prem took away licensed gun of Kamal from there. As the informant apprehended for his life, he ran towards fields where he told his uncle Shiv Ram and brother Kamal about the incident, who at that time were cutting “Laha” crop(Mustard). All these persons chased the informant towards the fields. The informant Dinesh, Kamal, Shiv Ram, upon seeing them, ran towards Nagla of Nand Ram(a small village). They scaled the stairs and went up on the roof of house of Man Singh Faujdar. At that time, Ram Narain and Prem fired shots from the guns, which hit Kamal. He further asserted that he, as also Shiv Ram, were assaulted with la

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2015 Supreme(Raj) 574

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR.MOHAMMAD RAFIQ And PRAKASH GUPTA, JJ. PREM & OTHERS – Appellant VS. THE STATE OF RAJASTHAN. – Respondent D.B. CRIMINAL APPEAL NO. 1464/2003 And D.B. CRIMINAL REVISION PETITION NO. 1189/2003. Decided on : 16.10.2015

Cases Referred (21)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR.
MOHAMMAD RAFIQ And PRAKASH GUPTA, JJ.
PREM & OTHERS – Appellant
VS.
THE STATE OF RAJASTHAN. – Respondent
D.B. CRIMINAL APPEAL NO. 1464/2003 And D.B. CRIMINAL REVISION PETITION NO. 1189/2003.
Decided on : 16.10.2015