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2022 Supreme(Raj) 839
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
PANKAJ BHANDARI, SAMEER JAIN, JJ.
Shimbhu Ram S/o. Sheodan & Ors. - Appellants
Versus
State of Rajasthan, Through P.P. - Respondent
D.B. Criminal Appeal No. 730 of 2013
Decided On : 28-09-2022
For the Appellant : Mr. Arvind Kumar Gupta, Sr. Adv. assisted by Mr. Anurag Pareek, Mr. Saurabh Pratap Singh Chauhan, Ms. Savita Nathawat, Mr. Tanay Jain, Mr. Kapil Bhardwaj, Mr. Kuldeep Yadav.
For the Respondent: Mr. Dheeraj Singhal, Mr. Javed Choudhary, AGA.
The main legal point established in the judgment is the unreliability of the prosecution's case due to antedating and antetiming of the FIR, failure to produce material witnesses, and suppression of information.
Headnote:
Indian Penal Code - Conviction under Sections 302/34 and Section 436 - [IPC] - [302, 34, 436] - The judgment discusses the lodging of the FIR, discrepancies in the prosecution's case, failure to produce material witnesses, and the medical evidence. The court found the FIR to be antedated and antetimed, and the investigation to have started before the FIR was lodged. It also noted the non-production of material witnesses and the suppression of information. The court concluded that the prosecution's case was unreliable and acquitted the appellant.
Fact of the Case:
The case involved the conviction of the appellants for offences under Sections 302/34 and Section 436 of the Indian Penal Code. The prosecution's case was based on a written report by the complainant, but the court found major discrepancies in the prosecution's case, including the lodging of the FIR, failure to produce material witnesses, and suppression of information.
Finding of the Court:
The court found the prosecution's case to be unreliable due to antedating and antetiming of the FIR, failure to produce material witnesses, and suppression of information. It concluded that the appellant's conviction was not sustainable and acquitted the appellant.
Issues: The issues included discrepancies in the prosecution's case, failure to produce material witnesses, suppression of information, and reliability of the prosecution's case.
Ratio Decidendi: The court's decision was based on the unreliability of the prosecution's case due to antedating and antetiming of the FIR, failure to produce material witnesses, and suppression of information.
Final Decision: The court allowed the appeal, set aside the judgment of conviction and sentence, and acquitted the appellant. The appellant was directed to be released from jail and to furnish a personal bond.
JUDGMENT :
Sameer Jain, J.
1. The appellants have preferred this appeal aggrieved by the judgment and order of conviction dated 28.09.2013 passed by Additional Sessions Judge, Neem Ka Thana, District Sikar for offences under Sections 302/34 and Section 436 of the Indian Penal Code (hereinafter ‘IPC’) whereby for offence under Section 302/34 they were sentenced to life imprisonment with fine of Rs.10,000/- and in default of fine simple imprisonment of three months and for offence under Section 436 they were sentenced to 10 years of rigorous imprisonment with fine of Rs.5,000/- and in default of fine two months simple imprisonment. Both the sentences were ordered to be run concurrently.
2. It is informed by the counsel for the appellants that appellant No.2-Sheodan Ram has expired on 13.05.2021. A death certificate in this regard is produced before this Court. Considering the same, the present appeal qua the appellant No.2-Sheodan Ram stands abated.
3. Succinctly stated, the case of the prosecution-respondent as per Written Report (Ex. P3) is as follows :
(i) That, the complainant Nanchi wife of the deceased Ashok is resident of Lamba Ki Dhani Tan Kurbada. At around 7-8 PM all of them after taking meals slept after locking door of the house. The complainant Nanchi, her daughter Ritu and sons Vikas and Deepak slept in one house and her husband/deceased Ashok as usual slept in ‘kaccha’ house near domestic animals.
(ii) At about 12.00 in night on 14.02.2010, suddenly, she woke up upon hearing noises of her husband due to suffocation and fight. She inquired as to who was there whereafter, she heard the voice of her father-in-law Sheodan, Jeth Jhabar and Dewar Shimbhu claiming to finish her husband Ashok. Then she tried to open the door but it was locked from the outside. Deceased Ashok screamed that he was being killed by them. Then those three persons shouted that they have not yet killed him but they will kill him soon.
(iii) Nanchi witnessed the same from the crack (darar) in door and she saw that the above referred persons were dragging her husband outside the house. Due to fear, she broke open the Jali fixed on the house and took her children to the near-by house of her neighbour Gyarsi Lal.
(iv) From there, the police was informed on telephone that these persons after killing her husband, put him in the house and after sprinkling petrol put the house on fire, as a result of which her husband died inside the house due to burns and roof of the house was also broken on account of fire. It was also mentioned by her that there existed a dispute in connection with a plot, situated in Budoli and due to that the three accused-persons had enmity with her husband.
4. An FIR regarding the same was registered by Nanchi on 15.02.2010 at 00:07 a.m. at Police Station, Neem Ka Thana, District Sikar. That, after investigation, the police arrested three accused persons and challan was filed against all of them. The learned trial Court framed the charges against the accused-appellants but they denied the charges and pleaded not guilty. As many as 21 prosecution witnesses and 10 defence witnesses were examined along with many documents as exhibits.
5. After prolonged trial and hearing both the sides, the trial Court acquitted co-accused Jhabarmal from all the charges on the plea of alibi on the ground that at the time of commission of alleged offences he was at Faridkot and was therefore wrongly implicated. It is submitted by the appellants that the false implication of Jhabarmal clearly indicates that the entire prosecution story has collapsed but despite that Sheodan and Shimbhu were convicted and were sentenced. Hence, being aggrieved by the judgment dated 28.09.2013 the present appeal was filed. It is informed to the Court that no appeal has been filed by the complainant or State against the acquittal order of Jhabarmal and on 13.05.2021 one of the co-accused Sheodan has also died and as a result request for abatement of appeal was made.
6. It
