The High Court acquitted four accused-appellants due to failure of proof regarding common intention and conspiracy, but upheld the conviction and sentence of the main accused and his lover based on motive and FSL evidence.
Four appellants acquitted; two appellants' convictions maintained.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
D.B. CRIMINAL APPEAL NO.786/2014
Dinesh Kumar alias Pahalwan son of Het Ram by caste Yadav, resident of Nandgaon, Tehsil Bhiwani, Police Station Sadar, Bhiwani, Haryana at present lodged in the Central Jail, Jaipur.
-----Appellant-accused
Versus
State of Rajasthan through the Public Prosecutor.
-----Non-petitioner
D.B. CRIMINAL APPEAL NO.787/2014
Both at present lodged in the Central Jail, Jaipur.
-----Appellants-accused
Versus
State of Rajasthan, through the Public Prosecutor.
-----Non-petitioner
D.B. CRIMINAL APPEAL NO.788/2014
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District Bhiwani (Haryana)
Both at present lodged in the Central Jail, Jaipur.
-----Appellants-accused
D.B. CRIMINAL APPEAL NO.734/2014
Smt. Meena Kanwar W/o Late Shri Bhawani Singh, by caste Rajput, resident of Taskola, Police Station Pragpura, District Jaipur, Rajasthan (Presently languishing in Central Jail, Jaipur.)
-----Accused/Appellant
Versus
The State of Rajasthan through P.P.
-----Respondent
For Appellant(s) : Mr. Vijay Chaudhary Mr. Rajesh Sharma Mr. Ashvin Garg Mr. Anil Vyas Mr. Shriram Joshi For Respondent(s) : Mrs. Sonia Shandilya - PP
HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Judgment
18/12/2018
By this batch of appeals, a challenge is made to the order dated 27th May, 2014, passed by the Additional Sessions Judge, Kotputli, District Jaipur in Session Case No.28/10, convicting and sentencing the accused-appellants as under:
Accused-appellant-Dinesh Kumar @ Pahalwan :
For offence under Section 302 IPC – Life imprisonment with fine of Rs.5,000/-, in case of default to pay fine, to further undergo five months simple imprisonment.
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For offence under Section 302/120B IPC – Five years’ rigorous imprisonment with fine of Rs.1,000/-, in case of default to pay fine, to further undergo one month simple imprisonment.
For offence under Section 5/27 of Arms Act – Five years’ rigorous imprisonment with fine of Rs.1,000/-, in case of default to pay fine, to further undergo one month simple imprisonment.
Accused-appellant-Dharmendra Kumar :
For offence under Section 302/34 IPC – Life imprisonment with fine of Rs.5,000/-, in case of default to pay fine, to further undergo five months simple imprisonment.
For offence under Section 302/120B IPC – Five years’ rigorous imprisonment with fine of Rs.1,000/-, in case of default to pay fine, to further undergo one month simple imprisonment.
Accused-appellant-Sunil Kumar @ Mahendra :
For offence under Section 302/34 IPC – Life imprisonment with fine of Rs.5,000/-, in case of default to pay fine, to further undergo five months simple imprisonment.
For offence under Section 302/120B IPC – Five years’ rigorous imprisonment with fine of Rs.1,000/-, in case of default to pay fine, to further undergo one month simple imprisonment.
Accused-appellant-Somveer Singh :
For offence under Section 302/34 IPC – Life imprisonment with fine of Rs.5,000/-, in case of default to pay fine, to further undergo five months simple imprisonment.
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For offence under Section 302/120B IPC – Five years’ rigorous imprisonment with fine of Rs.1,000/-, in case of default to pay fine, to further undergo one month simple imprisonment.
Accused-appellant-Smt. Meena Kanwar :
For offence under Section 302/34 IPC – Life imprisonment with fine of Rs.5,000/-, in case of default to pay fine, to further undergo five months simple imprisonment.
For offence under Section 302/120B IPC – Five years’ rigorous imprisonment with fine of Rs.1,000/-, in case of default to pay fine, to further undergo one month simple imprisonment.
BRIEF FACTS OF THE CASE :
An FIR No.157/2010, Exhibit-P2, was registered by the Police Station, Pragpura on 21st May, 2010 on a written report of complainant-Bajrang Singh. It was reported that his son Bhawani Singh came on leave for two months while serving in Border Security Force (“BSF”). He went out at around 8.00 PM on 20th May, 2010 along with a bag to meet someone. He did not return till morning. On the same day i.e. 20th May, 2010, one Babulal Saini came at around 9.30 PM to inquire about deceased-Bhawani Singh, who took his motorcycle and did not return it till 9.30 PM. Babulal tried to contact deceased-Bhawani Singh on mobile but was found busy. At that time, deceased’s wife-Meena Kanwar was alone at the residence. In the morning, information about dead body of someone was received and when Bajrang Singh went to see the body, it was of his son (Bhawani Singh), who was killed by use of firearm.
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After registration of the FIR, an investigation was caused by the police and, thereupon, a charge sheet was filed against all the accused-appellants. The court below framed charges against accused-Dinesh Kumar for offences under Sections 302, 302/120B IPC and 5/27 of the Arms Act and against accused-Somveer Singh, Sunil Kumar, Smt. Meena Kanwar, Dharmendra Kumar and Mukesh Kumar for offences under Sections 302/34 & 302/120B IPC. The charges were explained to the accused. They denied the charges thus trial commenced.
The prosecution produced twenty nine witnesses and seventy five documents to prove its case, whereas, statements of the accused were recorded under Section 313 Cr.P.C. They produced one document, Exhibit-D1. The trial court, after marshalling the evidence, convicted all the accused-appellants and sentenced them, as described earlier.
ARGUMENTS OF THE ACCUSED-APPELLANTS :
Learned counsel, appearing for accused-appellantsDharmendra Kumar, Sunil Kumar, Somveer Singh and Mukesh Kumar, made one and the same arguments, whereas, learned counsel, appearing for accused-Dinesh Kumar and Smt. Meena Kanwar, raised additional grounds to challenge the order of the trial court.
Learned counsel, appearing for accused-appellantsDharmendra Kumar, Sunil Kumar, Somveer Singh and Mukesh Kumar, submitted that their conviction and sentence for offences under Sections 302/34 and 302/120B IPC is without any evidence
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to connect them with the crime. The prosecution failed to show common intention of the four accused named above so as to convict them for offence under Section 302/34 IPC.
In the similar manner, the prosecution even failed to prove a case of conspiracy amongst the accused-appellants to give cause to the occurrence so as to convict them for offence under Section 302/120B IPC. They have given description of the facts and stated that prosecution failed to show any motive against four accused so as to involve them to kill deceased-Bhawani Singh.
If, at all, motive was existing, it was against Smt. Meena Kanwar and Dinesh Kumar. The prosecution could bring evidence to show that Smt. Meena Kanwar, wife of deceased-Bhawani Singh, was having relations with accused-Dinesh Kumar. The relations developed while deceased-Bhawani Singh and Dinesh Kumar remained posted at one and the same place in Assam. The relations of Smt. Meena Kanwar and accused-Dinesh Kumar could be proved by the prosecution by producing call details apart from other material.
PW1-Bajrang Singh had stated about a scuffle between accused-Smt. Meena Kanwar and deceased-Bhawani Singh just before the occurrence and, as a consequence of which, bangles of Smt. Meena Kanwar broke. Smt. Meena Kanwar had even threatened the deceased-Bhawani Singh prior to occurrence when he fought for her relations with accused-Dinesh Kumar, thus, if at all, motive was existing, it was against Smt. Meena Kanwar and Dinesh Kumar.
So far as other four accused-appellants-Dharmendra Kumar, Sunil Kumar, Somveer Singh and Mukesh Kumar are concerned, the prosecution could not show any motive so as to make out a
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case of common intention to cause occurrence. No evidence to show conspiracy amongst the accused could be proved. Even as per call details of different mobile numbers, the accused were at different locations during the day time, thus there was no question of conspiracy to give cause to the occurrence. They have yet been convicted mainly for the reason that at the time when occurrence was caused by Dinesh Kumar, they may be together.
Learned counsel, appearing for accused-appellant-Smt. Meena Kanwar, submitted that prosecution could not prove a case of illicit relationship with accused-Dinesh Kumar, yet finding has been recorded by the trial court. The posting of accused-Dinesh Kumar and deceased-Bhawani Singh at one and the same place in the State of Assam has been alleged but no evidence for it was led. As per statement of witnesses and defence taken by the accused, deceased-Bhawani Singh and accused-Dinesh Kumar did not remain posted at one and the same place. In view of the above, the allegation about relations of Smt. Meena Kanwar with accused-Dinesh Kumar could not be proved, therefore, no motive could be brought by the prosecution to implicate accused-Smt. Meena Kanwar.
The call details of certain mobile numbers were taken but they were not sufficient to connect Smt. Meena Kanwar with the crime in a case of circumstantial evidence. Her conviction for offence under Section 302 IPC with the aid of Section 34 or 120B IPC is based on surmises and conjectures, therefore, this court may cause interference in the order of the trial court and acquit accused-appellant-Smt. Meena Kanwar.
Learned counsel, appearing for accused-Dinesh Kumar, has also challenged the order of the trial court. It was stated that
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posting of Dinesh Kumar and deceased-Bhawani Singh at one and the same place in the State of Assam could not be proved by the prosecution so as to connect accused-Dinesh Kumar with the crime. The story of illicit relation of Dinesh Kumar with Smt. Meena Kanwar could not be proved by prosecution and otherwise, the firearm was not recovered at the instance of Dinesh Kumar but was at the instance of Dharmendra Kumar. In view of the above, conviction of the appellant-Dinesh Kumar for offence under Section 302 IPC is not based on evidence to prove the case beyond doubt, thus order of the trial court deserves to be set aside.
The prosecution even failed to connect the accused with the crime based on call details because record of the call details was not of the SIM belonging to accused-Dinesh Kumar but his brother. The trial court failed to appreciate the aforesaid while passing order of conviction. Learned counsel has made reference of statements of witnesses to strengthen their arguments and, in that regard, certain witnesses were even declared hostile, thus they did not support the prosecution case.
A reference of statement of PW1-Bajrang Singh has been given. It is stated that he was not residing with deceased-Bhawani Singh. Bajrang Singh was residing in a separate house and was not having talking terms with his son (Bhawani Singh). In view of the above, his statement should not have been believed by the trial court. It is moreso when there exists improvement in statement. He did not state many things in the statement before the police, however, with improvement, they were stated in the court. The trial court ignored even this aspect of the matter while
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convicting accused-Dinesh Kumar for offence under Section 5/27 of the Arms Act along with other offences.
ARGUMENTS OF THE SIDE OPPOSITE:
Learned Public Prosecutor has opposed the appeals and supported the order passed by the trial court. She submits that relation of Smt. Meena with accused-Dinesh Kumar has been proved by PW1-Bajrang Singh. He has even stated about posting of accused-Dinesh Kumar and deceased-Bhawani Singh in Assam though may be in different wings of Army. The licensed gun of accused-Dinesh Kumar has been used in the occurrence. The firearm (Gun) was recovered from the residence of accusedDinesh Kumar at the instance of accused-Dharmendra. The empty cartridge recovered from the place of occurrence was sent to the Forensic Science Laboratory after it was sent to Armoury along with the firearm. The pellets recovered from the body of deceased were sent to the FSL. As per FSL report, fire was opened from the licenced gun of accused-Dinesh Kumar. He had not authorised any one to use the firearm.
So far as four accused-appellants namely, Dharmendra, Sunil Kumar, Somveer Singh and Mukesh Kumar are concerned, they have been convicted for offence under Section 302 IPC with the aid of Section 34 IPC. It is even for the offence under Section 120B IPC. The call details of all those accused were produced to show that all of them were talking to each other on the day of occurrence. It was not only on one occasion but on many occasions. They were at different places initially but later-on came at the same place before the occurrence. They were having a red
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colour Tavera vehicle, which was used in the occurrence. The Tavera vehicle was recovered at the instance of accusedDharmendra and, otherwise, the firearm was also recovered at his instance. In view of the above, all the four accused-appellants were rightly convicted and sentenced for offence under Section 302 with the aid of Sections 34 and 120B IPC.
So far as accused-Smt. Meena Kanwar is concerned, prosecution could prove her relation with accused-Dinesh Kumar. A reference of statements of PW1-Bajrang Singh and PW23Sohanlal has been given. They proved posting of accused-Dinesh Kumar and deceased-Bhawani Singh at one and the same place and at that time, Smt. Meena Kanwar developed relation with accused-Dinesh Kumar. The call details of SIM used by Smt. Meena Kanwar and Dinesh Kumar could corroborate statements of those witnesses. It is to show that they were regularly in contact before and subsequent to the occurrence. The accused has tried to argue that SIM from which phone calls were made to the accusedDinesh Kumar, was with deceased-Bhawani Singh. The argument aforesaid was raised in ignorance of the fact that said SIM was used to contact accused-Dinesh Kumar not only before the occurrence but event subsequent to it, which otherwise cannot be by the deceased.
PW10-Vibhor Rastogi has proved call details of the SIM and mobiles used by each accused. His statement could not be demolished in the cross-examination. A reference of statements of other witnesses has also been given to show that prosecution could prove its case beyond doubt and, accordingly, the trial court has rightly convicted and sentenced all the accused for offence under Section 302 IPC and for other accused with the aid of
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Sections 34 and 120B IPC. The prayer is, accordingly, to maintain the order passed by the trial court.
FINDING OF THE COURT :
We have considered rival submissions of the learned counsel for the parties and perused the record of the case.
The brief facts of the cases have already been narrated in the opening para, thus need not to be reiterated other than brief history of occurrence. The prosecution came out with a case that deceased-Bhawani Singh was killed by accused-Dinesh Kumar with use of his licenced firearm (gun). It is for the reason of his relations with deceased’s wife Smt. Meena Kanwar. To give cause to the occurrence, the accused made a conspiracy and they were, accordingly, convicted for offence under Section 120B IPC.
The relations of Smt. Meena Kanwar and Dinesh Kumar developed while deceased-Bhawani Singh and Dinesh Kumar remained posted at one and the same place in Assam. At the time of occurrence, deceased-Bhawani Singh came to village after taking leave for two months. Before occurrence, Bhawani Singh fought with Smt. Meena Kanwar for her relations with Dinesh Kumar where bangles of Smt. Meena Kanwar broke. As per statement of accused-Dinesh Kumar’s wife (Sunita) under Section 161 Cr.P.C., Dinesh Kumar took his firearm after receiving phone call from Smt. Meena Kanwar. Neither accused-Dinesh Kumar’s wife was produced in evidence nor her statement was submitted by the prosecution, thus not relied by the trial court, however, while giving brief history of the case, it has been referred by us.
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The trial court found that prosecution has successfully proved its case, thus convicted and sentenced all the accused-appellants.
Learned counsel, appearing for accused-appellants namely, Dharmendra Kumar, Sunil Kumar, Somveer Singh and Mukesh Kumar, has submitted that a case of common intention could not be proved by the prosecution. So far as these four accused are concerned, even no motive to cause occurrence could be proved and, otherwise, it is alleged that a case of conspiracy to make out an offence under Section 120B IPC could not be established by the prosecution.
We have appreciated the arguments of learned counsel for the parties. The prosecution has mainly relied on the statement of PW10-Vibhor Rastogi to connect four accused with the crime. The call details of mobile used by four accused were produced to show that they were regularly in contact with the main accused-Dinesh Kumar on the day of occurrence. The location of all the accused on 20th May, 2010 has also been proved.
A reference of statements of the witnesses has been given to show that all the accused were in red colour Tavera vehicle but no witness has named the accused for travelling in Tavera vehicle on the day of occurrence. Their statement is only that 3-4 persons were in Tavera vehicle at the site where the deceased had gone. We find that to make out a case under Section 34 IPC, the prosecution was required to prove motive of the accused so as to make out common intention to cause occurrence. In the instant case, the prosecution could not bring any evidence to show motive of four co-accused-appellants to cause occurrence. The motive for giving cause to the occurrence exists against Smt. Meena Kanwar and Dinesh Kumar but not against other four accused. Merely for
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the reason that at the time of occurrence, all the accused were together other than Smt. Meena Kanwar, would not make out a case for offence under Section 302 IPC with the aid of Section 34 IPC. The prosecution even failed to bring evidence to show a conspiracy amongst the accused-appellants.
The prosecution even failed to prove that all the accused made a conspiracy and thereafter gave cause to the occurrence. The call details of all the accused are not sufficient to prove it. It is, however, a fact that the firearm was recovered at the instance of co-accused-Dharmendra but merely for that reason, a case for offence under Section 302 IPC with the aid of Section 34 IPC would not be made out.
The case of the prosecution is that accused-Dinesh Kumar, having relation with Smt. Meena Kanwar, opened fire on deceasedBhawani Singh. At the time of occurrence, all the four accused were with the main accused-Dinesh Kumar but merely for that reason, a case for offence under Section 302 IPC with the aid of Sections 34 and 120B IPC would not be made out. We find that prosecution failed to prove case against four accused. It would further be discussed at the time of consideration of the evidence against two accused namely, Dinesh Kumar and Smt. Meena Kanwar.
The prosecution produced Bajrang Singh-complainant as PW1. He is father of deceased-Bhawani Singh. It was stated that deceased-Bhawani singh was serving in BSF and residing separately. He came on leave for two months. He left the residence at around 8.00 PM on 20th May, 2010 and did not return till morning. He took motorcycle of Babulal Saini and did not return it, thus Babulal Saini came to enquire about Bhawani Singh.
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He made a call to Bhawani Singh but was not responded. He went to Smt. Meena Kanwar also, who called the deceased from mobile of Babulal Saini but was not responded. The witness has proved posting of Bhawani Singh and accused-Dinesh Kumar at one and the same place and relations of Smt. Meena Kanwar with Dinesh Kumar.
In the cross-examination, the said witness admitted that the fact of scuffle between Bhawani Singh and Smt. Meena Kanwar has not been mentioned in the statement under Section 161 Cr.P.C. He has shown his unawareness as to why it was not mentioned by the police. PW1-Bajrang Singh has proved registration of the FIR, Exhibit-P2, on the written report, ExhibitP1, made by him. The recovery of mobile, charger and bunch of keys from the place of occurrence, Exhibit-P3, has also been proved apart from recovery of clothes vide Exhibit-P4. An empty cartridge of 12 Bore vide Seizure Memo Exhibit-P7 was proved by the said witness apart from recovery of a motorcycle, Exhibit-P8. The site map, Exhibit-11, has also been proved by the said witness. In the cross-examination, it was admitted that he is residing separately and his residence is around 500-700 metres away from the residence of deceased-Bhawani Singh.
PW2-Ramesh Singh has proved the recovery memos, ExhibitP7 and Exhibit-P8 i.e. cartridge and motorcycle and also the site map, Exhibit-P11. He has, thus corroborated the statement of PW1-Bajrang Singh for recovery of articles. PW3-Nemi Singh had admitted about deceased’s posting in the State of Assam and even heard about friendship between deceased-Bhawani Singh and accused-Dinesh Kumar while they were in BSF. Bhawani Singh came on leave for two months but he has shown his unawareness
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about involvement of any one in the occurrence. The witness was, thus declared hostile. In the cross-examination, the witness has admitted that his wife is real sister of accused-Smt. Meena Kanwar and with whom he has come to the court to make statement. PW4-Satpal Singh has also been declared hostile.
PW5-Babulal has proved Exhibit-P14 and stated that on the day of occurrence, a red colour Tavera vehicle went towards “Pahad” and, thereupon, he heard a noise of fire near the factory. The same vehicle returned thereafter. In the cross-examination, his statement could not be demolished. He has stated that a red colour Tavera vehicle passed through his house and after occurrence, it returned back.
PW7-Narpat Singh stated that on the day of occurrence, he was sitting on the shop of Satpal and at that time, deceasedBhawani Singh came along with a mobile and a white colour bag. He asked about a charger, which was not available with Satpal. The deceased-Bhawani Singh then went towards Jitendra Sharma’s shop and did not return. The said witness further stated that while he was sitting on the shop of Satpal, a red colour Tavera Vehicle No.HR 37B 7006 passed through the shop and went towards “Torda” and “Buchare”. The motorcycle was also found at the place of occurrence. In the cross-examination, the only question asked to him was about non-disclosure of vehicle number to the police while making statement, otherwise, his statement could not be demolished.
PW9-Sunil Kumar is a material witness though he was declared hostile. In the cross-examination, he was asked about Mobile No.9050997223. He refused about the said mobile number belonging to him. The witness even refused about use of his ration
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card for the aforesaid. He has also refused his signature and photo though SIM was issued on his ID. The said mobile was used by the accused. Dinesh Kumar and Smt. Meena Kanwar were regularly talking to each other before and subsequent to the occurrence.
PW10-Vibhor Rastogi proved call details of different mobiles. He has stated that a Mobile No.9050997223 was issued in the name of Sunil S/o Hetram (PW9). It’s call details are Exhibit-P17. The Mobile No.8053892375 was issued in the name of Dinesh S/o Ratan Singh. The other mobile numbers were of four accused. The call details of Mobile No.9772570284 belonging to Rakesh Kumar was produced as Exhibit-P22A and of Mobile No.9050997223 in the name of Sunil was marked as Exhibit-P17. The call details as well as locations of the users of those SIMs was also proved by PW10-Vibhor Rastogi. He proved that SIM was used by Smt. Meena Kanwar and she was used to make calls to the SIM used by accused-Dinesh Kumar. It is prior and subsequent to the occurrence. It is along with locations.
PW11-Rakesh has stated about mobile number with last digit 284 alleged to have been issued in the name of Jitendra Sharma apart from one more mobile number. The said witness has further stated that SIM with last digit 284 was given to deceased-Bhawani Singh by Jitendra Sharma.
PW13-Ramniwas has proved seizure of a red colour Tavera vehicle at the instance of accused-Dharmendra Kumar. It was vide Exhibit-P27. He has further proved Exhibit-P30, recovery memo of firearm at the instance of accused-Dharmendra Kumar. ExhibitP31 is a site map of the place of recovery of mobile set at the instance of Smt. Meena Kanwar. Exhibit-P34 is recovery of one mobile set of LG Company at the instance of accused-Smt. Meena
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Kanwar. The accused-Dinesh Kumar disclosed the place of occurrence and Exhibit-P35 was proved by the said witness. In the cross-examination, the said witness has admitted that recovery of the firearm was made from the residence of accused-Dinesh Kumar. He, however, did not verify about title of the house, otherwise, his statement could not be demolished by the accused.
PW14-Vinod S/o Mohar Singh has corroborated the statement of other witnesses.
PW15- Vinod S/o Sultan, PW16-Jagveer Singh, PW17Ramavtar and PW18-Krishanlal have also proved documents produced by the prosecution. This includes the register of “Malkhana”.
PW19-Dr. Prashant Kumar has proved post-mortem report. He has given description of the injuries received by the deceasedBhawani Singh. It was from a firearm and recovery of pellets was made from the body and sealed. It was sent to the Forensic Science Laboratory. The post-mortem report, Exhibit-P52, was proved by the said witness. PW20-Dr. Naresh Kumar Chheepa corroborated the statement of PW19.
PW21-Virendra Kumar has also corroborated the statement of other witnesses for the recovery of Tavera vehicle.
PW22-Hemraj Singh is a material witness. He has made investigation of the case. He has proved the site map for recovery of firearm and even recovery of income tax card of deceasedBhawani Singh at the instance of accused-Dinesh Kumar. The licence of the firearm (gun) in the name of Dinesh Kumar was produced as Exhibit-P36 and proved by the said witness and, otherwise, it is Exhibit-P60. The empty cartridge and the firearm were sent to the FSL vide Exhibit-P61 and Exhibit-P62 is the FSL
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report apart from Exhibit-P65 and Exhibit-P66. He has stated that initially the charge sheet could not be filed against accused-Dinesh Kumar as he was absconding, thus a supplementary charge sheet was filed against him.
PW23-Sohanlal has also proved the prosecution case. It is not only recovery of empty cartridge but seizure memo of motorcycle also. He has caused investigation about the SIM used by Smt. Meena Kanwar. It was by her and Bhawani Singh bearing Nos.9571882570, 9772570284 and 9462712721. The call details of the mobiles were also proved by the said witness. The place of occurrence, as disclosed by the accused, was also proved. The recovery of mobile on disclosure under Section 27 of the Indian Evidence Act at the instance of Smt. Meena Kanwar was made vide Exhibit-P73. The said mobile was used with the SIM No.9571882570. It was used to talk accused-Dinesh Kumar and details were produced vide Exhibit-P34. At the instance of accused-Dharmendra Kumar, the firearm was recovered on disclosure under Section 27 of the Indian Evidence Act. The FSL report proves that pellets recovered from the body were fired from the firearm (Gun) recovered at the instance of accused and even empty cartridge found at the place of occurrence was of 12-Bore Gun in the name of accused-Dinesh Kumar. The articles were also produced in the evidence. He has also stated about use of red colour Tavera vehicle in the occurrence. His statement could not be demolished in the cross-examination.
PW24-Ramchandra has stated that his son (Satpal) runs a welding shop at the Bus Stand, Taskola and Jitendra is having a shop for mobile recharge. His son Satpal has given one mobile number to the deceased-Bhawani Singh after obtaining his ID.
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PW26-Jitendra Sharma and PW27-Moolchand have supported the prosecution case. They have corroborated the recovery of the articles.
PW29-Pooranmal is again a material witness. He stated that deceased-Bhawani Singh came to him on the day of occurrence and purchased bottles of beer. They were found at the place of occurrence.
The evidence produced by the prosecution is sufficient to make out a chain of circumstances to connect the accused-Smt. Meena Kanwar and Dinesh Kumar for causing occurrence. The prosecution could bring motive against both the accused.
PW5-Babulal has stated about use of red colour Tavera vehicle. PW3-Nemi Singh was declared hostile but he has admitted that after occurrence, he could know that deceased-Bhawani Singh and accused-Dinesh Kumar remained posted at one and the same place.
PW23-Sohanlal has supported the statement of PW1 and PW2. He made investigation of the case and found that the accused and the deceased remained posted at one and the same place and Smt. Meena Kanwar and accused-Dinesh Kumar developed relations. The perusal of SIMs used by Smt. Meena Kanwar and accused-Dinesh Kumar has further proved that they were talking to each other prior and subsequent to the occurrence. The prosecution could prove motive against both the accused to give cause to the occurrence and, with the common intention, the occurrence was given effect to by accused-Dinesh Kumar. The call details of those mobile numbers, Exhibit-P17 to Exhibit-P22A, were also proved by the prosecution.
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The licensed gun was used in the occurrence and it was in the name of accused-Dinesh Kumar and was recovered by the prosecution during the investigation. The FSL report proves use of firearm by accused-Dinesh Kumar and the pellets recovered from the dead body was fired from the aforesaid firearm. The empty cartridge was also of the firearm used in the occurrence. Thus not only the motive but common intention of accused-Smt. Meena Kanwar and Dinesh Kumar could be proved by the prosecution. It was out of their relations, for which, the deceased-Bhawani Singh and accused-Smt. Meena Kanwar fought prior to the occurrence.
The trial court has discussed all the evidence led by the prosecution before drawing conclusions. In this regard, the FSL report, Exhibit-P63 and Exhibit-P64, has also been discussed to prove the case under Section 5/27 of the Arms Act against accused-Dinesh Kumar.
We do not find any reason to cause interference in the finding recorded by the trial court for conviction of accused-Smt. Meena Kanwar and Dinesh Kumar. However, we do not find that prosecution could prove its case against other accused-appellants namely, Somveer Singh, Mukesh Kumar, Dharmendra Kumar and Sunil Kumar.
Accordingly, accused-appellants namely, Somveer Singh, Mukesh Kumar, Dharmendra Kumar and Sunil Kumar alias Mahendra are acquitted of the offences under Sections 302/34 IPC and 302/120B IPC. Their bail bonds be discharged.
We are maintaining the conviction and sentence of accusedDinesh Kumar and Smt. Meena Kanwar. The trial court is directed to issue warrant of arrest against Smt. Meena Kanwar to serve the remaining sentence.
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In view of the above, DB Criminal Appeal No.786/2014 (Dinesh Kumar alias Pahalwan Vs. State of Rajasthan) and DB Criminal Appeal No.734/2014 (Smt. Meena Kanwar Vs. State of Rajasthan) are dismissed .
DB Criminal Appeal No.787/2014 (Somveer Singh & Anr. Vs. State of Raj.) and DB Criminal Appeal No.788/2014 (Dharmendra Kumar & Anr. Vs. State of Raj.) are allowed .
As per Section 437-A of the Code of Criminal Procedure, accused-appellants-Somveer Singh, Mukesh Kumar, Dharmendra Kumar and Sunil Kumar alias Mahendra are directed to furnish a personal bond in the sum of Rs.50,000/- each with one surety in the like amount before the Registrar (Judicial) of this Court, which will be effective for a period of six months with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants will appear before the Supreme Court on receipt of notice thereof.
(ASHOK KUMAR GAUR),J
(M.N. BHANDARI),J
FRBOHRA
2 issues framed by the court
Whether the prosecution proved common intention under Section 34 IPC and conspiracy under Section 120B IPC against the four appellants besides the main accused.
Whether the evidence established motive and participation of the wife in the murder committed by her lover.
5 provisions across 3 enactments
Dinesh Kumar alias Pahalwan
Somveer Singh
Mukesh Kumar
Dharmendra Kumar
Sunil Kumar alias Mahendra
Meena Kanwar
Munishwar Nath Bhandari
Ashok Kumar Gaur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
