Partly allowed

Preetam Singh @ Titu @ Raju v. State

Rajasthan HC29 May 2017CRLA/838/2012

Case brief

AI extract

What is this about?

High Court allowed appeals partly, upholding convictions for robbery but converting attempted murder charge to causing hurt likely to cause death, noting injuries were grievous but not dangerous to life, and issuing orders for release of one appellant and surrender of the other.

What did the court decide?

Appeals allowed in part; conviction under Sections 307/34 converted to 326/34 IPC; Ladu Ram released; Preetam Singh directed to surrender.

Preetam Singh @ Titu @ Raju Vs State — Cheating and Forgery | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. CRIMINAL APPEAL NO. 837 / 2012

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Ladu Ram @ Ladulal S/o Kalu @ Kalu Ram R/o Shihad Mohalla, Nathdwara, Distt. Rajsamand, presently R/o Dalamagari, Gangapur, Police Station Gangapur, Distt. Bhilwara (Raj.)

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(Presently lodged at Central Jail, Udaipur)

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……….Appellant VERSUS State of Rajasthan ………….Respondent CONNECTED MATTER

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S.B. CRIMINAL APPEAL NO. 838 / 2012

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Preetam Singh @ Titu @ Raju S/o Shri Vijay Singh, aged 28 yearrs, R/o Jagina, Police Station Udyog Nagar, Distt. Bharatpur, presently R/o Dalamagari, Gangapur, Police Station Gangapur, Distt. Bhilwara (Raj).

……….Appellant

VERSUS

State of Rajasthan

………….Respondent

Counsel For Appellant(s) : Mr. N.S. Khileri

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Counsel For Respondent(s) : Mr. J.P. Bhardwaj, PP

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HON'BLE MR. JUSTICE VIJAY BISHNOI

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Judgment

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29/05/2017

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These criminal appeals have been preferred on behalf of the appellants being aggrieved with the judgment dated 25.8.2012 passed by the Addl. Sessions Judge No.1, Chittorgarh (for short

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(2 of 12)

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‘the trial court’) in Sessions Case No.68/2011 (50/2007), whereby the trial court has convicted and sentenced both the accused appellants as under:-

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OFFENCE	SENTENCE
341 IPC	One month’s rigorous imprisonment
307/34 IPC	Ten years’ rigorous imprisonment and to pay a fine of Rs.5000/-, in default of payment of fine to further undergo two months’ simple imprisonment.
397 IPC	Seven Years’ rigorous imprisonment.

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All the sentences were ordered to run concurrently.

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Briefly stated the facts of the case are that Ramlal (PW-10) has registered an oral report (Ex.P-17) to the SHO, Police Station Rashmi, Distt. Chittorgarh on 30.3.2007, at about 1.50 PM, while stating that at about 12 PM, when he was returning from his village Gilund on his motorcycle and proceeding towards his village Hingoriya, then, at around 12.30 PM, when he reached near Dindoli Fidder at village Nayakheda, then, two boys of around 20 to 22 years of age came on a motorcycle from behind and after overtaking his motorcycle had suddenly stopped his motorcycle. Thereafter, one person came behind his motorcycle, whereas, his companion had attacked him with a pistol ‘desi katta’ and fired at him, on account of which, he fell down and received injury in his stomach. It is further stated by Ramlal (PW-10) that his ‘baniyan’ and ‘shirt’ were pierced and then suddenly the person standing near the motorcycle came there and snatched his ram-navmis

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(3 of 12)

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and, thereafter, both of them ran away on their motorcycle towards Nayakheda Matrakundiya road. It is further stated that thereafter, he reached at village Nayakheda on his motorcycle, but as he was not feeling well, he stopped his motorcycle underneath a tree and asked one old aged lady to inform about the incident in the village. After sometime, many persons from the village came there and somebody had telephoned at the police station and thereafter the police took him to the Rashmi hospital for treatment. Ramlal (PW-10) in his complaint has given description about the looted ornament and has also stated that both the persons were wearing pant and shirt and he can identify both the persons on seeing them.

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On receiving this report, Police Station Rashmi has registered and FIR No.44/2007 for the offences punishable under Sections 307, 394, 341 read with Section 34 IPC against unknown persons. During the course of investigation, the police has recorded the statement of Ramlal (PW-10) and his injury report was prepared. The clothes worn by Ramlal (PW-10) were also seized. In the meantime, appellant Preetam Singh was arrested in connection with another case at Police Station Railmagra and during the course of investigation, he has confessed about the crime committed by him along with appellant Ladu Ram with the complainant.

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The accused appellants were thereafter arrested and on their information, ornament looted from Ramlal (PW-10) and the pistol ‘desi katta’ were recovered and the recovery memos were prepared. The motorcycle used in the commission of crime was

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also seized and thereafter, test identification parade of the accused appellants was conducted in the presence of a Magistrate, wherein, Ramlal (PW-10) has identified the accused appellants. Ramlal (PW-10) has also identified his ornaments which were recovered from the custody of the accused appellants.

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After investigation, the police has filed charge-sheet against the accused appellants and the trial court has framed charges against them for the offences punishable under Sections 341, 307 in alternative 307/34 and 397 IPC and Section 3/25 of the Arms Act. The accused appellant have denied the charges levelled against them and claimed trial.

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During the course of trial, prosecution has produced as many as 21 witnesses and has also got exhibited 45 documents. The statements of the accused appellants were recorded under Section 313 Cr.P.C. and one document i.e. the police statement of Ramlal (PW-10) was got exhibited in defence. The trial court after hearing learned counsel for the accused appellants and the learned Public Prosecutor has convicted and sentenced the accused appellants vide impugned judgment as above. Being aggrieved with this, the accused appellants have preferred these appeals.

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Learned counsel for the accused appellants has argued that the trial court has grossly erred in convicting and sentencing the accused appellants vide impugned judgment because the prosecution has failed to produce cogent and reliable evidence against the accused appellants to connect them with the commission of crime.

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It is argued that the trial court has erred in placing reliance

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(5 of 12)

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over the test identification parade conducted for the purpose of identifying the accused appellants by Ramlal (PW-10). It is contended that before conducting the test identification parade, Ramlal (PW-10) was well aware about the identity of the accused appellants because in his court statement, he has admitted that after the incident, the names of the accused appellants were published in the local news paper and he was aware about the said fact. It is also argued that before the test identification parade, the accused appellants were shown to Ramlal (PW-10) and during the said test identification parade, the accused appellants have specifically raised this objection. Learned counsel for the accused appellants has therefore argued that the trial court has erred grossly erred in placing reliance on the said test identification parade while convicting and sentencing the accused appellants.

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Learned counsel for the accused appellants has further argued that the so called recovery of the ornament, alleged to have been looted by the accused appellants from Ramlal (PW-10), is also not reliable as no independent witness was called by the Investigating Agency at the time of alleged recovery of the said ornament. It is also contended that the alleged recovery of the pistol ‘desi katta’ and the motorcycle at the instance of the accused appellants is also not reliable as the witnesses of the said recovery have also not supported the prosecution story.

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Learned counsel for the appellants has further argued that the identification of the looted property by Ramlal (PW-10) also cannot be relied upon as he has not disclosed the identity of the

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(6 of 12)

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said ornament during the course of investigation.

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It is further argued that as per the injury report (Ex.P-2) of injured Ramlal and as per the statement of Dr.Rakesh Mundra (PW-1), it is clear that there is only one injury i.e. the fire arm wound on abdomen of Ramlal (PW-10), however, in the injury report (Ex.P-2), it has nowhere been mentioned that the said injury was dangerous to life. It is also contended that Dr.Mahendra Damor (PW-16), who conducted the operation of injured Ramlal (PW-10) and Dr.Rajani Somani (PW-20), who conducted the X-ray of injured Ramlal (PW-10) have also not stated in their statements that the injury of Ramlal (PW-10) was dangerous to life. Learned counsel has therefore argued that there is no evidence available on record to connect the accused appellants for the offence punishable under Section 307 IPC and the trial court has erred in convicting and sentencing the accused appellants for the aforesaid offence. It is further argued that the trial court has also erred in convicting the accused appellants for the offences punishable under Sections 341 and 397 IPC. It is, therefore, prayed that the impugned judgment passed by the trial court be set aside and the accused appellants be acquitted from the charges levelled against them.

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Per contra, learned Public Prosecutor has supported the judgment passed by the trial court and while referring to the prosecution evidence has argued that from the evidence produced by the prosecution, it is clear that the offences, for which, the accused appellants have been charged have sufficiently been proved and, therefore, the trial court has not committed any

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illegality in convicting and sentencing the accused appellants for the aforesaid offences.

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Heard learned counsel for the appellants, learned Public Prosecutor, perused the impugned judgment and carefully scrutinized the record.

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It is not in dispute that at the time of lodging of the complaint, Ramlal (PW-10) has not disclosed the identity of the accused appellants and has simply stated that both the accused persons were wearing pant and shirt and he can identify them if they are produced before him. However, as per Ramlal (PW-10), he has identified the accused appellants during the course of test

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identification parade conducted in the jail in the presence of Magistrate Samrendra Singh (PW-5). The test identification parade proceedings have been exhibited by the prosecution as Ex.P-9 and and Ex.P-11.

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Ramlal (PW-10) in his statement has specifically stated that the said test identification parade was conducted after three to four months of the incident and similarly looking persons were mixed during the said test identification parade. He has also stated that firstly he has identified Preetam Singh out of several persons and thereafter he has identified Ladu Ram. Ramlal (PW10) was subjected to detailed cross examination by the defence, however, his evidence regarding the test identification was not effected during the said cross examination.

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The Investigating Officer namely Kishan Singh (PW-15) in his examination-in-chief has stated that after their arrest, the accused appellants were kept in hiding and he has applied before

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concerned Chief Judicial Magistrate vide Ex.P-37 for conducting their test identification parade by the complainant. He has further stated that the Chief Judicial Magistrate, Kapasan has fixed the date 22.6.2007 for test identification parade and Ramlal (PW-10) was summoned for identifying the accused appellants vide Ex.P-5. During the cross examination, the defence has suggested to Kishan Singh (PW-15) that after their arrest, the accused appellants were not kept in hiding, but he has specifically ascertained that after their arrest, the accused appellants remain in hiding till the completion of the test identification parade.

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Samrendra Singh (PW-5), the then Judicial Magistrate, Kapasan in his statement has stated that as per the order of the Chief Judicial Magistrate, the test identification parade of the accused appellants was conducted on 22.6.2007. He has verified the test identification memos Ex.P/9 and Ex.P-10. He was also subjected to cross examine by the defence, but it has failed to demolish his testimony regarding the proceedings of test identification parade.

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From the above piece of evidence, it is clear that the prosecution has sufficiently proved that after their arrest, the accused appellants were kept in hiding and on 22.6.2007, test identification parade was conducted in the presence of Magistrate, where Ramlal (PW-10) has identified the accused appellants.

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So far as the recovery of the weapon used in the commission of crime i.e. pistol ‘desi katta’ and empty cartridges is concerned, it is to be noticed that accused appellant Ladu Ram was arrested vide Ex.P-21, whereas, accused appellant Preetam Singh was

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arrested vide Ex.P-22. Both the accused appellants have given information under Section 27 of the Indian Evidence Act vide Ex.P35 and P-36 and on the basis of the said information, a pistol ‘desi katta’ used by the accused appellants in the commission of crime was recovered at their instance vide Ex.P-15 and the above documents were verified by Kishan Singh (PW-15). Though, the independent witnesses of the said recovery i.e. Madan Lal (PW-7) and Sampat Lal (PW-8) have not supported the prosecution story and turned hostile, however, they have admitted their signatures on Exs.P-35, P-36, P-15 and P-16. When the independent witnesses Madan Lal (PW-7) and Sampat Lal (PW-8) had admitted their signatures on the memos, simply because they have not supported the prosecution story and turned hostile, the recovery of the said articles cannot be disbelieved.

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So far as the recovery of the looted ornament at the instance of the accused appellants is concerned, it is noticed that the accused appellants vide Exs.P/29 and P-30 have given information that they have sold the said ornament at Chamunda Jewellers, Ahmedabad. Arvind Soni (PW-19), the owner of the said Chamunda Jewellers in his statement has verified that the accused appellants had sold the said ornament to him. He has further stated that at the first instance, he refused to buy the said ornament but when the accused appellants were identified by Mahendra Singh Rawal (PW-17), then, he has purchased the said ornament from them. The recovery of the looted ornament from Ramlal (PW-10) has sufficiently been proved by the prosecution by producing documentary as well as oral evidence. Simply because

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the recovery of the looted ornament has not been made in the presence of independent witnesses, the said recovery cannot be discarded. The looted ornament recovered by the Investigating Agency vide Ex.P-3 has been identified by Ramlal (PW-10) vide Ex.P-18. The said identification of the looted property was done in the presence of the then Tehsildar Ram Singh (PW-14) and he has

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verified the same.

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Looking to the above piece of evidence, particularly the identification of the accused appellants by Ramlal (PW-10), the recovery of the looted ornament and the weapon i.e. pistol ‘desi katta’ as well as the vehicle i.e. the motorcycle used in the commission of crime, it is clear that the prosecution has sufficiently proved the case against the accused appellants.

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Now, the question comes whether the trial court is justified in convicting the accused appellants for the offence punishable under Section 307 IPC.

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Just after the incident, the police has brought Ramlal (PW10) to the hospital at Rashmi, where initial treatment was given to him and immediately thereafter he was referred to higher centre. Initially the treatment to the injured Ramlal (PW-10) was given by Dr.Rakesh Mundra (PW-1). He has prepared the injury report Ex.P2. At the back of the injury report, he has given his opinion after seeing the X-ray plate. His opinion reads as under :-

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“By seeing X-ray plate abdomen standing plate No.620 R There is no foreign body seen in upper abdomen area Hence Injury No.1 is simple in nature. However final opinion can be given after receiving and seeing discharge ticket of pt. because pt. is ref. to M.B.H. Udaipur for needful & further treatment. X-ray F.P.A. For more information please

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on send Radiology opinion.”

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Dr.Rakesh Mundra (PW-1) in his statement has not stated that the injury No.1 was dangerous to life. Similarly Dr.Mahendra Damor (PW-16) who conducted operation of injured Ramlal (PW10) at Maharana Bhupal Hospital, Udaipur on 31.3.2007 has also

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not stated in his statement that the injury on the abdomen of Ramlal (PW-10) was dangerous to life. Dr.Rajni Somani (PW-20), the Assistant Professor, Radiology at Maharana Bhupal Hospital, Udaipur, who has done X-ray of Ramlal (PW-10) on 30.3.2007 has also not stated that the injury on his abdomen was dangerous to

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life.

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In view of the above evidence, this Court is of the opinion that the injury received by injured Ramlal (PW-10) on his abdomen was not dangerous to life, however, the same was on a vital part and caused by a fire arm, for which, he was also operated, therefore, there is no dispute that the said injury was grievous in nature. Hence, the accused appellants are liable to be punished for the offence punishable under Section 326 IPC instead of Section 307 IPC.

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In view of the above discussion, both the appeals are allowed in part. The conviction and sentence awarded to the accused appellants by the trial court of the offences punishable under Sections 341 and 397 IPC is maintained, however, the conviction of the accused appellants for the offence punishable under Section 307/34 IPC is converted into conviction for the offence punishable under Section 326/34 IPC. Both the accused

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appellants are sentenced to seven years’ rigorous imprisonment with a fine of Rs.3,000/- each, in default of payment of fine, they shall further undergo one month’s simple imprisonment.

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It is noticed that accused appellant – Ladu Ram @ Ladu Lal son of Kalu @ Kalu Ram has already served out around nine years of sentence during the course of trial and during the course of pendency of this appeal, as such, he has already served out sentence of seven years for the offences punishable under Sections 397 and 326/34 IPC.

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Hence, accused appellant – Ladu Ram @ Ladu Lal son of Kalu @ Kalu Ram be released forthwith, if not required in any other

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case.

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So far as accused appellant – Preetam Singh @ Titu @ Raju son of Vijay Singh is concerned, initially, he was in custody from 19.6.2007 to 19.11.2011 and thereafter from 25.8.2012 to 2.5.2013 and at present his is on bail.

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Hence, accused appellant – Preetam Singh @ Titu @ Raju son of Vijay Singh is directed to surrender himself immediately for serving out the remaining part of his sentence. His bail bonds stand forfeited.

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The judgment dated 25.8.2012 passed by the Addl. Sessions Judge No.1, Chittorgarh in Sessions Case No.68/2011 (50/2007) is modified accordingly.

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(VIJAY BISHNOI), J.

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ms rathore

Preetam Singh @ Titu @ Raju v. State

Case brief

What is this about?

What did the court decide?

Preetam Singh @ Titu @ Raju v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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