Dismissed

Kartar and Ors. v. State of Rajasthan through Pp.

Rajasthan HC1 Mar 2013CRLMP/3882/2012

Case brief

AI extract

What is this about?

In a take-cognizance petition under Section 482 Cr.P.C., the High Court dismissed the petitioners' appeal against the lower courts' orders taking cognizance for murder and destruction of evidence. The court upheld the magistrate's reasoned decision to disagree with the police's negative final report and affirmed the judge's dismissal of the revision.

What did the court decide?

The criminal miscellaneous petition and the stay application were dismissed.

Kartar and Ors. Vs State of Rajasthan through Pp. — Property and Title | Rajasthan HC (2013)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER

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Kartar & Ors.

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Vs.

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State of Rajasthan & Anr.

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SB CRIMINAL MISC. PETITION NO.3882/2012 UNDER SECTION 482 CR.P.C. AGAINST THE ORDER DATED 25.9.2012 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE NO.1, DEEG, BHARATPUR WHEREBY THE REVISION PETITION HAS BEEN DISMISSED AND THE ORDER DATED 26.5.2012 PASSED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, DEEG, BHARATPUR TAKING COGNIZANCE AGAINST THE PETITIONERS FOR OFFENCE UNDER SECTIONS 302, 201 READ WITH 34 IPC, HAS BEEN AFFIRMED

Date of Order :-

March 1, 2013

PRESENT

HON'BLE MR. JUSTICE R.S.CHAUHAN

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Reportable

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Mr. Biri Singh Sinsinwar, Sr. Advocate assisted by Mr. Mukesh Kumar Saini, for the petitioners. Mr. Piyush Kumar, Public Prosecutor for the State. Mr. V.S. Chauhan, for the respondent No.2.

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Aggrieved by the order dated 26.5.2012 passed by the Additional Chief Judicial Magistrate, Deeg, District Bharatpur and by the order dated 25.9.2012 passed by the Additional District & Sessions Judge No.1, Deeg, District Bharatpur, the petitioners have approached this court. By the former order, the learned Magistrate has taken cognizance against the petitioners for offences under Sections 302 and 201 read with 34 IPC. By the latter order, the learned Judge has dismissed the revision petition filed by the petitioners challenging the cognizance order.

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Briefly stated the facts of the case are

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that one Smt. Angoori filed a criminal complaint before the learned Magistrate against the petitioners. In the complaint she claimed that on 30.8.2009 at 9.00 PM, Kartar (petitioner No.1 before this court) came to her house and asked her the whereabouts of Raman, her son. For, Kartar wanted Raman to plough his field. She told Kartar that since her son just had his dinner, he could not go with him. She told him that his son will come to his farm in the morning and plough the field. However, Kartar did not listen to her. He told her that he is taking her son and would drop him back. Saying so, he took her son alongwith their tractor. Around 10.30 at night, Kartar's nephew came to her house and told her that her son had fallen into a well alongwith the tractor. Hearing the noise, numerous villagers rushed to Kartar's farm. When they pulled out Raman's body, there was a sharp injury on his forehead. When they tried to pump-out the water from his stomach, there was no water in his stomach. But he had died. When the tractor was taken out, its gear was in neutral position and lights were off. She further claimed that Kartar and his family members pressurized her husband and her family members to agree that Raman should not be subjected to a post-mortem and that the case should not be reported to the police. She further claimed that on 2.9.2009, the villagers discovered a 4 ft. long iron rod from Kartar's farm. She further claimed that Manoj and Jeetu told her last night that it is Kartar and other

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petitioners who have killed her son. They also informed her that they saw Kartar, Chaman and two other persons sitting on Raman's tractor. Thus, she believes that the petitioners have killed her son. The said criminal complaint was sent to the Police Station, Deeg for further investigation under Section 156(3) Cr.P.C. Consequently, the police registered a formal FIR, namely FIR No.612/09, against the petitioners.

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However, after a thorough investigation, the police submitted a negative Final Report. The complainant filed a protest petition. Her statement was recorded under Section 200 Cr.P.C. The statements of her witnesses, Geetam @ Jeetu, Manoj Kumar and Kunwarpal were recorded under Section 202 Cr.P.C. By order dated 26.5.2012, the learned Magistrate took cognizance against the petitioners for aforementioned offences. Since the petitioners were aggrieved by the said order, they filed a revision petition before the learned Judge. However, by order dated 25.9.2012, the learned Judge dismissed the revision petition. Hence, this petition before this court.

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Mr. Biri Singh Sinsinwar, the learned senior counsel for the petitioners, has raised the following contentions before this court: firstly, the incident is of intervening night between 30^th and 31^st August, 2009. The police was immediately informed. The police reached Kartar's farm in the night itself. Jasmat, the husband of the complainant and the father of the deceased, and his

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other family members gave an application to the police that they neither want to report the matter to the police, nor do they want Raman's body to be subjected to a post-mortem. According to the witnesses and according to the police, no external injury was visible on Raman's body. Thus, the police did not take any action.

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Secondly, initially on 4.9.2009 Smt. Angoori filed a complaint only against Kartar and Chaman before the Additional Chief Judicial Magistrate. However, subsequently on 7.12.2009, she filed a complaint against four persons, namely Kartar, Chaman, Nirmal and Rajendra. Thus, clearly the complainant is embroidering and improving her allegations against the present petitioners.

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Thirdly and most importantly, while taking cognizance, the learned Magistrate has not given any reason for disagreeing with the negative Final Report submitted by the police. According to the police, a false report had been lodged as the complainant wanted Kartar to pay the money for repair of the tractor. However, Kartar refused to get the tractor repaired. Therefore, in order to implicate him in a false case, Smt. Angoori filed the complaint against the petitioners.

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Fourthly, the learned Judge has relied upon the statements of Geetam @ Jeetu and Manoj recorded under Section 202 Cr.P.C. However, Geetam in his earlier statement recorded under Section 161 Cr.P.C. does not claim that he saw the accused assaulting the deceased. It is only in his

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statement recorded under Section 202 Cr.P.C. that he claims to have done so. Thus, there is contradiction in the statements given under Section 161 Cr.P.C., and under Section 202 Cr.P.C. Similarly, even Manoj does not allege any assault committed by the petitioners upon the deceased. But in his statement recorded under Section 202 Cr.P.C., he makes such a claim. This clearly shows that both the independent witnesses are unreliable and untrustworthy witnesses.

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On the other hand, Mr. V.S. Chauhan, the learned counsel for the complainant-respondent No.2, has contended that Raman did not die a natural death, but died under mysterious circumstances. Since his death was unnatural, the police was legally duty bound to carryout the inquest under Section 174 Cr.P.C. to examine the body and to prepare Panchnama Lash, the inquest report, to send the body for post-mortem. Therefore, the police is not justified in claiming that merely because Jasmat, father of the deceased, had given an application that he does not want the Panchnama Lash to be made, does not want the postmortem to be conducted, does not want to report the matter to the police, the police had restrained its hands. Since an unnatural death had occurred, a cognizable offence had occurred, therefore, the police was duty bound to record a FIR and to initiate investigation, but it failed to do so.

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Secondly, Jasmat happens to be a mentally disturbed person. Merely because Jasmat gave an

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application to the police, as aforementioned, it would not stop the police from investigating the case.

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Thirdly, due to omission being committed by the police in not registering the case against the petitioners, the mother of the deceased was compelled to lodge a complaint before the concerned court. The complaint was lodged on 4.9.2010, i.e. just four days after the incident.

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Fourthly, since the complainant was not satisfied with the unfair and inefficient investigation made by the police, they had filed a criminal miscellaneous petition under Section 482 Cr.P.C. before this court. It is only upon a direction issued by this court that the investigation was changed.

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Fifthly, the learned Magistrate has given sufficient reasons for disagreeing with the negative Final Report. It is not essential that the Magistrate must give elaborate reasons for disagreeing with the negative Final Report.

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Sixthly, at the time of taking cognizance, the learned Magistrate is concerned only with seeing the existence of a prima facie case. At the initial stage, the Magistrate is not expected to meticulously examine the evidence. Moreover, he is not concerned with the issue whether the evidence produced by the complainant would eventually lead to the conviction of the accused or not.

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Lastly, the petitioners claim that it was merely an accidental death as Raman had driven his

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tractor into the well and had fallen into the well and had died. However, according to a large number of witnesses, when the tractor was pulled out, it was in neutral gear. A tractor cannot move forward when it is in neutral gear. However, in order to push a tractor into the well, it would have to be first placed in the neutral gear. The fact that the tractor was discovered to be in neutral gear is a clearcut indication that the tractor alongwith Raman was pushed into the well in order to make his death appear to be an accidental one. Furthermore, a blood stained iron rod was recovered from Kartar's farm. Thus, there is ample evidence for taking cognizance for offence under Section 302, 201 IPC.

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Heard the learned counsel for the parties and perused the impugned orders.

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It is, indeed, trite to state that at the time of taking cognizance, the learned Magistrate is concerned with mere existence of a prima facie case that an offence has occurred. The learned Magistrate takes cognizance of an offence and not of the offender. At such an initial stage, he is not supposed to meticulously examine the evidence. He is supposed to take the allegations as unrebutted and to see if the ingredients of the offence exist or not. Therefore, he is pre-empted from carrying out a meticulous analysis of the evidence. Of course, it is true that while disagreeing with the negative Final Report a Magistrate is supposed to give reasons for his

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disagreement. However, it does not mean that he is required to give elaborate reasons for his disagreement. What is essential is that he must reveal the application of a judicious mind on the facts of the case. He must show the factors which weighed in his mind for taking cognizance of the offence.

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A bare perusal of the order dated 26.5.2012 clearly reveals that the learned Magistrate has discussed and has given reasons for his disagreeing with the negative Final Report. The learned Magistrate has clearly noted that the findings given by the investigating agency are absolutely wrong. Thus, beginning with its disagreement with the finding of the Investigating Officer, the learned Magistrate has noticed the fact that there is sufficient evidence to show that Jasmat, father of the deceased, was suffering from metal illness and was undergoing treatment for the same. Yet the Investigating Officer has taken an application from such a person wherein he has claimed that he does not want any police investigation. Therefore, according to the learned Magistrate, the Investigating Officer has misused his powers in order to give a clean-chit to the petitioners.

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The learned Magistrate has further noticed the fact that according to Rameshwar, the son of the deceased, and according to the complainant, Raman was last seen with Kartar when Kartar took him to his farm. Moreover, according to Manoj, he

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saw Raman ploughing Kartar's farm. Moreover, the learned Magistrate has noticed the fact that according to the Investigating Officer, there was no motive for causing death of Raman. However, even this fact is not true. For, according to Bhagwan Singh, on 1.9.2009 Kartar came to Raman's family and told them that there was a verbal altercation that took place between Raman and him. Consequently, he hit Raman with an iron rod and caused his death giving it colour of an accidental death. Furthermore, the learned Magistrate has relied on the statement of Geetam @ Jeetu, Manoj and Kunwarpal. Thus, he has given sufficient reasons for disagreeing with the negative Final Report. Once reasons have been given, howsoever brief, the cognizance order cannot be faulted with.

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The learned Judge has also noticed the fact that the learned Magistrate has revealed application of a judicious mind.

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It cannot be overlooked that according to a large number of witnesses, the tractor was found to be in neutral gear when it was pulled out to the well. A person cannot drive a tractor into a well by putting it in neutral gear. But in order to push a tractor, it has to be kept in the neutral gear. Thus, the fact that the tractor was found in neutral gear is a very strong indication that the tractor was pushed into the well. Hence, there is a strong suspicion that Raman did not die an accidental death, but died a homicidal one. Since there is strong suspicion that a homicidal death

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has occurred, there is sufficient evidence to take cognizance under Section 302 IPC. Moreover, the fact that the body and the tractor were pushed into the well clearly indicates the intention of the petitioners to hide the evidence of the alleged murder. Hence, the offence under Section 201 is clearly made out.

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For the reasons stated above, this court does not find any merit in the present petition. It is, hereby, dismissed. The stay application is also dismissed.

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All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

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Govind Sharma, PA

Kartar and Ors. v. State of Rajasthan through Pp.

Case brief

What is this about?

What did the court decide?

Kartar and Ors. v. State of Rajasthan through Pp.

Case brief

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