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IN THE HIGH COURT OF RAJASTHAN AT JODHPUR
SANDEEP MEHTA, ABHAY CHATURVEDI, JJ.
Surendra Kumar and Ors. - Appellants
Versus
The State of Rajasthan - Respondent
D.B. Criminal Appeal Nos. 398 of 2008 and 639 of 2009
Decided On : 11-07-2019
CRIMINAL APPEAL - MURDER - SECTION 302 IPC - COMMON INTENTION - SECTION 34 IPC - CIRCUMSTANTIAL EVIDENCE - IDENTIFICATION OF ACCUSED - RECOVERY OF WEAPON - MOTIVE - CONVICTION - ACQUITTAL.
Fact of the Case:
Mohd. Hussain, a taxi driver, was murdered near the Meja Dam, District Bhilwara. The Investigating Officer investigated the matter and filed two separate charge-sheets because appellants herein, i.e. Surendra Kumar and Smt. Usha Joshi, were arrested earlier, whereas, the accused Mukesh @ Sonu was absconding. The trials of Surendra Kumar and Smt. Usha Joshi were held jointly, whereas, the case of the accused Mukesh @ Sonu arrested later was tried separately.
Finding of the Court:
The prosecution has proved beyond all manner of doubt, the complete chain of circumstances right from the time when the accused appellants took the taxi of Mohd. Hussain on hire from the Savina taxi stand till right after the murder, when the three accused were confronted by Ladu Singh and Gog Singh and they gave a misinformation to these witnesses that the car had met with an accident.
Issues: 1. Whether the prosecution has proved the complete chain of circumstances to establish the guilt of the accused? 2. Whether the accused appellant Smt. Usha Joshi @ Kiran can be convicted for the charge under Section 302 with the aid of Section 34 IPC?
Ratio Decidendi: 1. The prosecution has proved the identity of the accused Surendra Kumar and Smt. Usha Joshi as per the persons, who hired the taxi of Mohd. Hussain. This fact coupled with the circumstance that the accused were seen going away from the car in question just after the incident is sufficient to prove the fact that both these accused were present therein, when the fatal gunshot was fired at the deceased Mohd. Hussain. 2. In the absence of evidence regarding motive and common intention, it would not be safe to convict the appellant Usha for the charge of murdering the deceased Mohd. Hussain with the aid of Section 34 IPC.
Final Decision: (1) The appeal preferred on behalf of the accused appellant Surendra Kumar @ Sonu [D.B. Criminal Jail Appeal No. 398/2008] is dismissed and his conviction and the sentences awarded under the impugned judgment dated 17.04.2008 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Bhilwara are affirmed. (2) The appeal preferred on behalf of the accused Smt. Usha @ Kiran @ Muskan @ Jaya @ Priya Joshi [D.B. Criminal Appeal No. 639/2009] is allowed and the impugned judgment dated 17.04.2008 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Bhilwara is quashed and set aside qua her. She is acquitted of all the charges.
JUDGMENT :
Sandeep Mehta, J.
1. These two appeals arise out of an incident dated 28.09.2006, in which Mohd. Hussain, a taxi driver, was murdered near the Meja Dam, District Bhilwara. The Investigating Officer investigated the matter and filed two separate charge-sheets because appellants herein, i.e. Surendra Kumar and Smt. Usha Joshi, were arrested earlier, whereas, the accused Mukesh @ Sonu was absconding. The trials of Surendra Kumar and Smt. Usha Joshi were held jointly, whereas, the case of the accused Mukesh @ Sonu arrested later was tried separately. The Sessions Case No. 9/2007 registered against the accused appellants Surendra Kumar and Smt. Usha Joshi was decided vide judgment dated 17.04.2008, whereby the learned Additional Sessions Judge (Fast Track) No. 1, Bhilwara convicted and sentenced them as under:
| Name of the appellant | Offence for which convicted | Sentence awarded |
| Surendra Kumar and Smt. Usha Joshi | Section 302/34 IPC | Life term imprisonment alongwith a fine of Rs. 10,000/- and in default of payment of fine, further to undergo six months' rigorous imprisonment |
|
| Section 201 IPC | Five years' rigorous imprisonment alongwith a fine of Rs. 3,000/- and in default of payment of fine, further to undergo three months' rigorous imprisonment |
| Surendra Kumar | Section 3/25 Arms Act | Three years' rigorous imprisonment alongwith a fine of Rs. 5,000/- and in default of payment of fine, further to undergo three months' rigorous imprisonment |
The substantive sentences were ordered to run concurrently.
2. Brief facts relevant and essential for disposal of the instant appeals are noted hereinbelow.
The complainant Nasir Hussain (P.W. 3) lodged a written report (Ex. P/3) at the Police Station Mandal, District Bhilwara on 29.09.2006 at 8.15 a.m. alleging inter alia that his brother Mohd. Hussain, aged 48 years, resident of House No. 8, Barkat Colony, Savina Kheda, Udaipur was engaged as a driver on the Indica car No. RJ-27-1C-2125 attached with one Arawali Tourists Agency. One Arvind Singh Bishnoi, resident of Bhilwara approached his brother to take the Indica car on hire on the previous day, i.e. 28.09.2006. A woman and another man were accompanying him. In the night at about 10 p.m., the Indica car, driven by Mohd. Hussain collided with an electric pole near Meja Dam and turned turtle, due to which, the complainant's brother Mohd. Hussain died at the spot, whereas the woman and the two male passengers, who might have been injured, abandoned the car and went away. On the basis of the report aforesaid, an FIR No. 191/2006 (Ex. P/37) was registered at the Police Station Mandal for the offence under Section 304-A IPC and the investigation commenced.
3. The Investigating Officer proceeded to the place of the incident and prepared the site inspection plan (Ex. P/5) noticing that two cartridges were lying nearby the place where the car had overturned. Blood was spread around at numerous places. The empty cartridge cases were seized vide seizure memo (Ex. P/6). The Indica car, which met with the accident was taken into possession. Blood stained and plain soil was collected from the spot. When the car was minutely examined, a bullet piece was found embedded in its steering, which was extracted and seized vide seizure memo (Ex. P/11). The Investigating Officer made enquiries from the employees of the Dak Bungalow, Meja Dam, near which, the accident had taken place, namely, Ladu Singh (P.W. 6) and Gog Singh (P.W. 9), who stated that they were working as Guards on night duty on the Meja Dam Dak Bungalow. They saw a car coming from towards Bhilwara Kotadi at about 10 o'clock. The car met with an accident. The witnesses heard two to three explosions. Two boys and a girl came towards them and told them that the car met with an accident and had overturned and then,
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