Partly allowed

Rajendra @ Tanti v. State of Rajasthan through P P

Rajasthan HC4 Dec 2018CRLA/946/2017

Case brief

AI extract

What is this about?

In appeals concerning a fatal group assault, the court rejected liability under Section 149 IPC, maintained the convictions and sentences of two appellants, and acquitted eleven others on benefit of doubt. It directed expedited investigation against an unprosecuted accused.

What did the court decide?

Eleven appellants acquitted and their convictions and sentences set aside; the acquitted appellant in custody ordered released unless required in another case.

Rajendra @ Tanti Vs State of Rajasthan… — Murder and Culpable Homicide | Rajasthan HC (2018)

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(1 of 20)

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[CRLAD-179/2018]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Criminal Appeal No. 179/2018

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Janak Singh S/o Dharam Singh B/c Gurjar, R/o Ganesh Pura Ps Kaithun, District Kota, Raj. At Present Confined In Central Jail, Kota.

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----Appellant

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Versus

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State Of Rajasthan Through PP.

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----Respondent

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Connected With

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D.B. Criminal Appeal No. 832/2017

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Kaptan S/o Shri Harkailash B/c Gurjar, R/o Ganeshpura, Police Station Kaithun, Distt. Kota Raj. At Present In Central Jail, Kota

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----Appellant

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Versus

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State Of Rajasthan Through PP

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----Respondent

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D.B. Criminal Appeal No. 946/2017

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Rajendra @ Tanti S/o Shri Chauthiram B/c Gurjar, R/o Ganeshpura, Police Station Kaithun, Distt. Kota Raj. At Present In Central Jail, Kota

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----Appellant

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Versus

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State Of Rajasthan Through PP

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----Respondent

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D.B. Criminal Appeal No. 993/2017

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Rahdey Shyam @ Golu S/o Sheesh Ram B/c Gurjar, R/o Village Ganeshpura, Police Station Kaithoon Distt. Kota

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Jeetu @ Jeetmal S/o Fateh Singh B/c Gurjar, R/o Village Ganeshpura, Police Station Kaithoon Distt. Kota

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Ghanshyam @ Pintu S/o Sheesh Ram B/c Gurjar, R/o Village Ganeshpura, Police Station Kaithoon Distt. Kota

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Ram Gopal S/o Balaji B/c Gurjar, R/o Village Ganeshpura, Police Station Kaithoon Distt. Kota

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Sattu @ Satya Narain S/o Balaji B/c Gurjar, R/o Village Ganeshpura, Police Station Kaithoon Distt. Kota

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(2 of 20)

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[CRLAD-179/2018]

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Bhuriya @ Dhara Singh S/o Ramesh B/c Gurjar, R/o Village Ganeshpura, Police Station Kaithoon Distt. Kota

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Versus

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State Of Rajasthan Through PP

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----Respondent

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D.B. Criminal Appeal No. 1123/2017

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Ranjeet S/o Mansingh B/c Gurjar, R/o Pipaliya, Thana Mandawar, Distt. Jhalawar At Present Prahladpura Thana Kaithoon Accused Appellant Is Confined In Central Jail Kota

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----Appellant

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Versus

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State Of Rajasthan Through PP

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----Respondent

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D.B. Criminal Appeal No. 1191/2017

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Bablu @ Om Prakash S/o Fateh Singh B/c Gurjar, R/o Ganeshpura, Police Station Kaithoon, Distt. Kota Accused Appellant Is Confined In Central Jail, Kota.

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----Appellant

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Versus

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State Of Rajasthan Through P.P.

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----Respondent

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D.B. Criminal Appeal No. 1475/2017

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Ramu @ Ram Singh S/o Dharam Singh B/c Gurjar, R/o Ganesh Pura, P.s. Kaithun, Distt. Kota Raj. At Present Confined In Central Jail Kota

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----Appellant

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Versus

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State Of Rajasthan Through P.P.

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----Respondent

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D.B. Criminal Appeal (Db) No. 26/2018

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Rajendra S/o Dharam Singh B/c Gurjar, R/o Ganesh Pura, Ps Kaithun, District Kota, Raj. At Present Confined In Central Jail, Kota.

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----Appellant

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Versus

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State Of Rajasthan Through PP.

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----Respondent

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For Appellant(s) : Mr. Kaleem Ahamed Khan, Mr. Nitin

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(3 of 20)

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[CRLAD-179/2018]

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Kumar Sharma, Mr. Ashvin Garg,Mr. Vijay Choudhary for Mr. N.C. Choudhary

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For Respondent(s) : Ms. Sonia Shandliya, PP for State, Mr. Suresh Sahni with Mr. R.M. Sharma for complainant

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HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA

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Judgment

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04/12/2018

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Appeal No. 179/2018 is listed on the application u/s 5 of the Limitation Act as it is barred by 319 days.

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For the reasons mentioned in the application and as it is not opposed by the parties opposite, we condone the delay. Accordingly, the application u/s 5 of the Limitation Act is allowed.

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The appeal is admitted.

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With consent of learned counsel for the parties, all the appeals were heard finally at this stage.

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The appeals have been filed against the order dated 19.4.2017, passed by learned Special Judge SC/ST (Prevention of Atrocities Cases), Kota in Sessions Case No. 80/2013 (CIS No. 81299/2014). The accused appellants have been convicted and

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sentenced as under:

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S.No.	Offence Under which Accused have been convicted	Period of Sentence and Amount of Fine	Sentence in case of default in payment of Fine
1.	U/S 147 IPC	2 Years R.I.	-
2.	U/S 148 IPC	2 Years R.I. & fine of Rs. 5,000/-	One Month S.I.
3.	U/S 450 Or 450/149 IPC	7 Years R.I. & fine of Rs. 10,000/-	2 Months S.I.
4.	U/S 302 IPC	Life Imprisonment & fine of Rs. 30,000/-	6 Months S.I.
5.	U/S 307 IPC	7 Years R.I. and fine of Rs.10,000/-	2 Months S.I.

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[CRLAD-179/2018]

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FACTS OF THE CASE:

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An FIR was registered on a written report made by complainant Sunil on 8.3.2012. It was stated that his brother apart from him, Dhanpal, Madanpal, Narayan, Tulsi, Kalu Meena and Roop Singh Pahalwan were sitting at his residence on the festival of Holi. At that time, the accused Rajendra, Janak, Ramu @ Ramsingh, Vijendra, Pintu, Golu, Mukut, Tanti @ Rajendra, Ramgopal, Atar, Dinesh, Bhuria @ Dharasingh residents of Ganeshpura and Sukhpal resident of Ummedganj and Kashiram along with 10-12 persons came equipped with the weapons. They entered into complainant’s house and attacked Dhanpal. Accused Rajendra and Pritam caused a blow by a sword, whereas, Janak has been assigned Gandasi and caused injury to Dhanpal. Other accused Ramgopal, Tanti, Satyanarayan, Bablu, Golu, Pintu, Dinesh and Sukhpal also caused injuries to Dhanpal. Accused Mukut, Bhuria @ Dharasingh, Atar, Hansraj, Vijendra, Bablu and Satyanarayan caused head injury to complainant. The villagers present at the scene of occurrence saved them.

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On the written report Ex.P/1, FIR No. 75/2012 was registered by Police Station-Kaithun for the offence under Section 147, 148, 149, 452, 323 and 307 IPC. The investigation started and, in the meanwhile, injured Dhanpal died, thus offence under Section 302 IPC was also added. After the investigation, case was also found against other accused and, accordingly, charge-sheet was filed for offence under Section 147, 148, 149, 452, 307, 450 and 302 IPC. Initially, it was filed against eleven accused.

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Learned Magistrate committed the case to the Court of Sessions as it was exclusively triable by the Court of Sessions. The learned trial Court then framed charges against accused for the offence under Sections 147, 148, 149, 450 alternatively under

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Section 450/149, 452, alternatively under Section 452/149, 302 alternatively under Section 302/149 and 307, alternatively under Section 307/149 IPC. The charges were explained to the accused appellants which were denied by them and claimed trial, thus, it commenced.

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The prosecution produced forty witnesses apart from production of seventy seven documents to prove their case. The statements of accused were recorded under Section 313 Cr.P.C. and they produced one witness in defence apart from nine documents. The learned trial Court convicted and sentenced the accused appellants, as described above. Hence, these appeals.

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ARGUMENTS OF LEARNED COUNSEL FOR THE APPELLANTS

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Learned counsel for the appellants submit that in the statements under Section 161 Cr.P.C. specific allegations for causing head injury to the deceased have been levelled against three persons namely Janak, Pritam and Rajendra @ Tanti. They have even assigned the weapons for causing occurrence.

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To support the argument, reference of the statements of eye-witness as well as injured witness has been given. It is stated that when specific allegation was against three accused alone, then there was no reason to convict other accused. In the FIR, names of nineteen accused were given but police did not find case against seven accused and, accordingly, charge sheet was filed against twelve accused named in the FIR with addition of accused Ranjeet, who was not specifically named in the FIR. In view of the above, a case of over implication at the instance of complainant stands proved. The learned trial Court ignored the aforesaid while convicting and sentencing the accused with the aid of Section 149 IPC.

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It is also submitted that almost four days prior to the occurrence on 8.3.2012, an occurrence took place where complainant party caused injuries to the members of accused party. A case was registered against them. It was out of the previous enmity between the two groups who are none else but relatives inter se. The accused named in the present case are witnesses to the earlier incident, and therefore, they were named in this case even without their participation in the occurrence. It is for this reason only that there exists contradictions in the statements of witnesses produced by the prosecution.

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There exist contradiction even about the place of occurrence. It is elaborately argued that as per the written report and FIR apart from statement of injured witness PW/1 Sunil, the occurrence took place in the house when accused entered with weapons and caused injury to deceased Dhanpal and injured Sunil whereas site plan shows place of occurrence `X’, in front of Gurudwara, which is around 100 steps away from the house of the complainant. As per the statement of eye-witnesses, place of occurrence is the house, whereas, as per the site map and statement of PW/29 Chhagansingh, the place of occurrence is in front of Gurudwara. In view of the above, the statements of eyewitnesses are not corroborated by the site map. Ignoring the aforesaid, trial court passed the order.

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Reference of contradictions in the statements of eyewitnesses has also been given. PW/1 Sunil has made specific statement to assign the weapon to each accused and the injury caused by them to the deceased and to him. PW/2 Madanpal and PW/3 Rajendra @ Ravindra have given different version. It is however true that all the eye witnesses have made specific allegation against Janak, Pritam and Rajendra @ Tanti for causing

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head injury to deceased Dhanpal. However, in view of the contradiction in the statements of eye-witnesses, the other accused could not have been convicted. They have not been assigned any injury to the injured or to the deceased.

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A case with the aid of Section 149 IPC is also not made out. The prosecution failed to show common object of the appellants to cause the occurrence. They even failed to show a case of unlawful assembly.

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In this regard, reference of the place of occurrence has been given. It is not that the occurrence took place in the house of the complainant but outside, thus the appellants cannot be said to be aggressor. The prosecution otherwise failed to prove common object of the accused, therefore, prayer is made to cause interference in the order of conviction and sentence with the aid of Section 149 IPC.

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The other argument of learned counsel for the appellants is about recovery of weapons. A reference of statements of PW/1 Sunil Kumar, PW/2 Madanpal, PW/6 Narayan @ Jainarayan, PW/24 Prakash @ Kalu, PW/25 Roopsingh and PW/27 Tulsiram has been given. It is to show that they have made specific allegations against three accused namely Janak Singh, Pritam and Rajendra @ Tanti for causing injury to deceased and the injured and assigned weapon to them. The recovery of weapons has also been proved but all the injuries received by the deceased and injured are out of blunt weapon, whereas, Janak Singh has been assigned sharp edged weapon. It is thus not corroborating the statements of eye-witnesses and otherwise none of the weapons was found blood stained other than a stick recovered from accused Ghanshyam. The names of other accused Jeetu and Ramgopal have been given by few witnesses though other witnesses have

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not alleged their participation in the occurrence. Accordingly, the prosecution failed to support its case by giving corroborative evidence to prove their case.

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Reference of the statement of PW/17 Dr. P.P. Bansal, PW/19 Dr. Krishnahari Sharma, PW/30 Dr. Rakesh Sharma and PW/36 Dr. Vivek Goyal has also been given. They are the doctors, who prepared Medical Reports and, subsequently, PMR of deceased Dhanpal.

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PW/30 Dr. Rakesh Sharma has specifically stated about the nature of injuries. All the injuries were caused out of blunt object whereas sharp edged weapon has been assigned to the accused.

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The learned counsel for the appellants has questioned presence of Rajendra S/o Kashi/Dharam Singh. Initially chargesheet was not filed against him. He was implicated later on though he was not even present at the place of occurrence. He was, in fact, subjected to head injury prior to the date of incident. He was under treatment and was at his residence. The learned trial court has ignored the aforesaid. It is more so when the said accused, in his statement under Section 313 Cr.P.C., specifically made reference of the previous incident and injury out of it, thus was at his residence. PW/37 Ramendra Singh has supported his statement. Thus a plea of “alibi” has been taken by counsel for the appellant for the said accused. It is also stated that no weapon was recovered from Rajendra S/o Kashi/Dharam Singh and otherwise, in defence, the accused produced the FIR Ex. D/2 giving reference of previous incidence in which he was attacked. The prayer is to acquit the said accused as he has been falsely implicated at the instance of the complainant.

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The learned counsel for the appellants has further submitted that accused Ranjeet was not named in the FIR but charge-sheet

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was filed against him. The order of conviction has been passed ignoring the fact that no specific allegation against him has been made by any of the eye-witnesses or injured witness. No weapon has been recovered at the instance of Ranjeet Singh.

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Last argument of counsel for the appellants is about delay in sending the FIR to learned Magistrate. It is stated that four days delay was caused in sending the FIR and aforesaid is fatal. It is also submitted that even from the accused side, three persons sustained injuries which remains unexplained. In view of the above, even the genesis of occurrence remains unexplained. The prayer is, accordingly, to set aside the order passed by the trial court convicting and sentencing the accused.

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ARGUMENTS OF LEARNED PUBLIC PROSECUTOR AND COUNSEL FOR COMPLAINANT.

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Learned Public Prosecutor has opposed the arguments of learned counsel for the appellants and prays to maintain the order passed by the trial Court. She submits that the prosecution could prove motive of the appellants so as to come with common object to cause occurrence. It is also their individual act. Learned trial Court thus rightly arrived at the conclusion of participation of appellants in the occurrence and to convict them for the offence under Section 302 IPC with the aid of Section 149 IPC.

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The learned counsel for the appellants has made reference of certain discrepancies in the evidence but that should not be taken basis to acquit them. A reference of the judgment of the Apex Court in the case of Krishnegowda & ors.; Nanje Gowda & Anr. Vs. State of Karnataka by Arkalgud Police, 2017 AIR (SC) 1657 has been given.

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It is submitted that the learned counsel for the appellants has unnecessarily made an issue about place of occurrence. The

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occurrence took place in continuation starting from the house of complainant and ended in front of Gurudwara. Gurudwara is not far from the house. The reflection of the aforesaid has been given in the site plan and proved by the Investigating Officer PW/29 Chhagan Singh.

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An issue has been raised even in regard to the nature of injuries sustained by the injured and deceased vis-a-vis recoveries of weapon from the accused. A reference of the statement of PW/30 Dr. Rakesh Sharma has been given for it to show that the deceased has sustained three head injuries and they were from the blunt object. The weapon assigned to accused Rajendra @ Tanti and also Rajendra S/o Kashi/Dharam Singh are iron pipe thus it corroborates the statement of PW/30 Dr. Rakesh Sharma and medical report as well as post mortem report.

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It is also stated that no contradictions in the statement of witnesses exist. The witnesses have specifically named the accused for causing occurrence. The head injury has been assigned to Janak Singh, Pritam and Rajendra @ Tanti apart from participation of all other accused, thereby, injured Sunil Kumar received seven injuries while deceased received twelve injuries though other than three injuries on vital parts, all other injuries were simple in nature.

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Learned Public Prosecutor and counsel for the complainant have further submitted that the conviction with the aid of Section 149 IPC is made out. It is due to previous enmity that they came with common object to cause the occurrence. The accused are not residing in the same village to show their presence to be natural. They belong to different villages thus there was no reason for them to visit another village on the festival of Holi. They came with the purpose of causing occurrence, thus premeditation and

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common object gets proved from the aforesaid itself. The accused failed to justify their presence in other village on the festival of Holi.

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Learned counsel for the complainant has further submitted that Rajendra S/o Kashi/Dharam Singh was also involved in the case. He has taken plea of “alibi” which has not been proved. No corroborative evidence was led by him and, accordingly, the trial court has rightly convicted and sentenced him for the offence under Section 302/149 IPC apart from other offences.

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The same is the position of accused Ranjeet. He was not named in the FIR but it does not mean that he was not involved in the occurrence. The FIR contains names of few accused but also makes a reference of others not named therein. In the investigation, police found a case against Ranjeet and accordingly, charge-sheet was filed against him. The eye-witnesses and injured witnesses have given his name for participation in the occurrence, thus he has rightly been convicted by the trial court.

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The issue of delay in sending the FIR to the Court of Magistrate has also been raised. It is after ignoring the fact that occurrence took place on 8.3.2012 and FIR could not be sent to the Court of Magistrate as 7^th March, 8^th March and 9^th March, 2012 were holidays on account of Holi Festival, whereas, 10^th March was second Saturday and 11^th March was Sunday. The FIR was sent on the first available working day i.e. on 12^th March, 2012 thus there was no delay in sending the FIR to the Court of Magistrate. In view of the above, prayer is to maintain the order passed by the trial Court while dismissing the appeals filed by the accused appellants.

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OUR DISCUSSION AND FINDING

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We have considered rival submissions of learned counsel for the parties and scanned the material carefully.

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The FIR in the present case was registered on a written report Ex.P/1 at the instance of injured complainant Sunil, who was examined as PW/1. After the FIR, the police caused investigation and filed charge-sheet followed by supplementary charge-sheet, in all against 13 accused persons, leaving 7 persons whose names were there in the FIR. The investigation against few accused was kept pending under Section 173 (8) Cr.P.C but, thereafter, charge-sheet was not filed, finding no case against them.

¶126

After the investigation and charge-sheet against 13 accused, the trial court framed charges against the accused as already described in the earlier paras of this judgment.

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Learned counsel for the appellants have raised many issues to challenge the order passed by the trial court for convicting and sentencing the accused for commission of the offence. To appreciate the arguments of both the parties, we would consider the evidence led by the prosecution as well as evidence in defence coupled with statements of accused under Section 313 Cr.P.C.

¶128

In the FIR, 19 accused were named for causing occurrence on 8.3.2012. The complainant made specific allegation against accused Rajendra @ Tanti, Pritam and Janak Singh for head injury to Dhanpal by sword and Gandasi. Rajendra @ Tanti and Pritam caused injury by sword, whereas, Janak Singh by a Gandasi. Names of other accused were given for causing injury to deceased but specific allegation against them has not been made by assigning weapon or the part of body where injury was caused. The complainant named the accused for causing injury to him and,

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for that, even assigned the weapons. Learned counsel for the appellants have made reference of statements under Section 161 Cr.P.C. but in the light of the court statements, we do not give weightage to it, more specifically when the statements recorded under Section 161 Cr.P.C. were not confronted.

¶131

It is, however, submitted that if the FIR and the statements of eye-witnesses, more specifically, PW/1 Sunil Kumar, PW/2 Madanpal, PW/6 Narain @ Jainarayan, PW/20 Hiralal, PW/24 Prakash @ Kalu and PW/25 Roopsingh are seen, they have made specific allegations for causing fatal injury to Dhanpal by accused Janak Singh and Rajendra @ Tanti apart from Pritam. These accused have even been assigned weapons for causing injury to the injured as well as deceased Dhanpal.

¶132

The argument of learned counsel for the appellants is about over implication and false implication of other accused, who have not been assigned any specific injury to the injured and deceased even by eye-witnesses. It is true that when the FIR was registered, names of nineteen accused were given apart from involvement of 10-12 other persons. The police did not file charge-sheet against seven accused out of nineteen, though charge-sheet against Ranjeet, who was not named in the FIR, was filed. It is after making investigation of the case. On the strength of the aforesaid, we need to find out a case of over-implication, rather, for that, to look into the evidence led by the prosecution.

¶133

PW/1 Sunil Kumar, PW/2 Madanpal, PW/24 Prakash @ Kalu, PW/25 Roopsingh and PW/27 Tulsiram have given one story about the occurrence though, in that regard, specific allegation with the assignment of weapon has not been given by PW/2 Madanpal but other witnesses have corroborated the statement of PW/1 Sunil Kumar. PW/1 Sunil Kumar has received injuries in the occurrence.

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He stated that on 8.3.2012, Dhanpal and others were at their residence on the festival of Holi. At around 1-1.30 PM, 19 accused named in the FIR along with 10-12 others came equipped with the weapons. They caused injuries to the injured and deceased Dhanpal. The specific allegation for causing head injury was levelled on Janak Singh, Pritam and Rajendra @ Tanti. The allegation against three accused have been corroborated by other eye-witnesses PW/2 Madanpal, PW/6 Narain @ Jainarayan, PW/24 Prakash @ Kalu and PW/27 Tulsiram.

¶137

The learned counsel for the appellant prayed that testimony of those witnesses should not be believed because they are interested witnesses, being relatives.

¶138

We find that the prosecution even produced independent witnesses PW/25 Roopsingh, who has supported the prosecution case and, accordingly, corroborated the statement of PW/1 Sunil Kumar. In view of the above, the prosecution could lead evidence to prove participation of Janak Singh, Pritam and Rajendra @ Tanti in the occurrence and to cause head injury to deceased.

¶139

The prosecution, however, did not file charge-sheet against Pritam and even no application under Section 319 Cr.P.C. was moved during the course of trial thus despite specific allegation against Pritam to cause one head injury to deceased, he has not been prosecuted.

¶140

In view of the above, there remains two accused against whom specific allegation remains for causing head injury to deceased Dhanpal, namely Janak Singh and Rajendra @ Tanti. We find that eye-witnesses and injured witnesses have not named other accused in specific terms with assignment of weapon and injury, either to injured or to deceased. They have been convicted with the aid of Section 149 IPC.

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To appreciate the argument of learned counsel for the appellant, we have considered the case to find out as to whether a case for conviction with the aid of Section 149 IPC is made out. As per the prosecution, the appellants had a motive to cause the occurrence and, therefore, they came with common object. The accused were equipped with the weapons thus not only case of unlawful assembly was proved but their participation with common object also gets proved in reference to the incident took place four days ago when complainant party attacked on the accused party. It is only to settle the score that accused came and caused occurrence on 8.3.2012.

¶144

We find that four days prior to the date of incident in the present case, complainant said to have attacked on the accused party. In view of the above, there was a motive with the accused to cause occurrence. Once motive was there, common object to cause occurrence can also be inferred, however, conviction cannot be based on inferences but facts proved by evidence.

¶145

The prosecution has not come with evidence that all the accused were relatives having previous enmity with the complainant party. For that reason, even police, while filing charge-sheet, did not find case against seven accused. The aforesaid becomes a ground to accept the argument of learned counsel for the appellants that the prosecution could not prove common object of all the accused. It becomes even a case of over-implication of the accused. The enmity between the two parties has not been disputed but that can results in over implication. In the background aforesaid, the burden was on the prosecution to prove motive and common object of all the accused, however, they failed to do so thus the argument of the learned counsel for the appellants against the conviction with the

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aid of Section 149 IPC deserves acceptance in respect of accused other than Janak Singh and Rajendra @ Tanti but there remain only two accused whereas it needs five for it.

¶149

In the light of the finding recorded in regard to conviction with the aid of Section 149 IPC, we are required to see the individual act of the accused if they did not come with the common object to cause occurrence.

¶150

We find that PW/1 Sunil Kumar and other eye-witnesses have made specific allegation against Janak Singh, Pritam, Rajendra @ Tanti and even Rajendra S/o Kashi/Dharam Singh for causing injuries to deceased and injured and they have assigned the weapons to them. The statement of eye-witness PW/1 Sunil Kumar has been corroborated by PW/6 Narayan @ Jainarain, PW/24 Prakash @ Kalu, PW/25 Roopsingh and PW/27 Tulsiram. It is even by recovery of weapons on the disclosure of the accused. An iron pipe was recovered at the instance of accused Radheshyam vide memo Ex.P/6 in the presence of PW/7 Devkrishan Gurjar and PW/8 Jagdish Gurjar. From Ghanshyam @ Pintu, a stick was recovered vide memo Ex.P/7 in the presence of PW/7 Devkrishan Gurjar and PW/8 Jagdish Gurjar. While from Jeetu @ Jeetmal, an iron rod was recovered vide memo Ex.P/14 in the presence of PW/14 Suresh and PW/7 Devkrishan.

¶151

On the disclosure of Rajendra @ Tanti, an iron pipe Ex.P/11 was recovered in the presence of PW/9 Pawan and PW/10 Radheshyam respectively. The recovery of a motor cycle vide Ex.P/10 was also made at his instance. From Janak Singh, recovery of Gandasi vide Ex.P/9 and motor cycle Ex.P/8 was made and witnesses to the recovery memo is PW/9 Pavan and PW/10 Radheshyam. An iron pipe at the instance of Sattu @ Satyanarain in the presence of PW/11 Rafiq and PW/12 Naresh was made and

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recovery memo is Ex.P/12. At the instance of Ramsingh, an iron rod was recovered through recovery memo Ex.P/15 in the presence of PW/15 Devilal and PW/16 Deewansingh. On the disclosure by Dhara Singh @ Bhuria recovery of iron pipe, Ex. P/16, was made in the presence of PW/15 Devilal and PW/16 Deewansingh, whereas, iron rod vide Ex. P/34 was recovered at the instance of Bablu @ Om Prakash in the presence of PW/20 Hiralal and PW/22 Bharat and, lastly, an iron pipe Ex. P/35 on the disclosure of Kaptan in the presence of PW/21 Harisingh and PW/23 Dharam Singh was recovered.

¶155

The recovery of weapons was proved by the prosecution to corroborate the statements of eye-witnesses. In the sequence of aforesaid, even reference of the MLR and PMR is relevant and that has been proved by PW/17 Dr. P.P. Bansal, PW/19 Dr. Krishnahari Sharma, PW/30 Dr. Rakesh Sharma and PW/36 Dr. Vivek Goyal. They have given description of the injuries received by the deceased and the injured. The deceased has received three fatal injuries on his head. It was the cause of death. Those injuries have been assigned to Janak Singh, Pritam and Rajendra @ Tanti and Rajendra S/o Kashi/Dharam Singh. In view of the above, the prosecution could bring corroborative evidence to support the statements of eye-witnesses.

¶156

It is not necessary that whenever recovery of weapons is made, it should always be blood stained. It depends on the nature of injuries and other circumstances. The argument of learned counsel for the appellants in this regard is to the nature of injuries sustained by the injured and the deceased. It also needs consideration. It would be while considering individual act of the accused as we do not find a case with the aid of Section 149 IPC.

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A specific argument has been raised in reference to accused Janak Singh is for use of Gandasi in the occurrence. The recovery at his instance is also Gandasi through recovery memo Ex.P/9. The said weapons should result in sharp injuries under normal circumstances but the deceased and injured have not received injuries out of sharp edged weapon. The learned counsel for the appellant- Janak Singh has urged that statement of eye-witnesses and recovery of weapon is not corroborated by MLR and PMR. So far as other accused specifically named for causing head injury are Rajendra @ Tanti and Rajendra S/o Kashi/Dharam Singh. They have been assigned blunt object but no recovery has been effected from Rajendra S/o Kashi/ Dharam Singh.

¶160

The injured and deceased did not receive injury by sharp edged weapon but it all depends whether Gandasi was sharp enough to cause such an injury. In view of the above, we are not inclined to accept the argument of learned counsel for the appellant Janak Singh with reference to the nature of injury to the deceased when specific allegation has been made by the injured as well as eye-witnesses for causing head injury to him.

¶161

So far as Rajendra @ Tanti is concerned, a blunt object has been recovered from him. Against him also specific allegation for causing head injury to the deceased has been made. The recovery of weapon at his disclosure is corroborated by the statement of eye-witnesses thus, we find case against him also.

¶162

So far as Rajendra S/o Kashi/ Dharam Singh is concerned, initially, the charge-sheet was not filed against him. He has otherwise taken a defence of “alibi” in his statement under Section 313 Cr.P.C. It is by stating that four days prior to the date of occurrence in this case, he sustained injuries on head, thus was at his residence. He has denied his participation in the occurrence,

¶163

(19 of 20)

¶164

[CRLAD-179/2018]

¶165

rather, his presence therein. The statement of said accused namely Rajendra S/o Kashi/Dharam Singh has been corroborated by PW/37 Ramendra Singh. It is stated that on the festival of Holi, he visited Rajendra S/o Kashi/Dharam Singh at his residence. He was having head injury covered with a bandage. The said witness has supported the statement of Rajendra S/o Kashi/Dharam Singh. It is also a fact that no weapon has been recovered from him and, initially, when the FIR was lodged, name of only one Rajendra was given for head injury. It was subsequently named by the witness as Rajendra Singh @ Tanti. In view of the above, we find a case in favour of Rajendra S/o Kashi/Dharam Singh. It is not only by accepting his plea of alibi but taking into consideration the evidence to corroborate it.

¶166

So far as other accused are concerned, since we have not accepted the case of the prosecution for conviction with the aid of Section 149 IPC and as specific allegation for causing injury with the assignment of weapon has not been made, we find a case in their favour also. We have already recorded the finding about previous enmity between the two groups and, at times, it results in over-implication, which is even established from the fact that after investigation, charge-sheet was not filed against all the accused. Thus, mere recovery of the weapons at their disclosure cannot connect the accused without assignment of injury to them.

¶167

Conclusion:

¶168

Accordingly, while maintaining the conviction and sentence of appellant Janak Singh and Rajendra @ Tanti, we dismiss the appeals filed by them. However, we acquit all other accused as case against them could not be proved by the prosecution beyond doubt thus they are extended benefit of doubt.

¶169

(20 of 20)

¶170

[CRLAD-179/2018]

¶171

We find that investigation against accused Pritam was kept pending under Section 173 (8) Cr.P.C, thus police is directed to expedite the same and if a case is made out, then proceed at the earliest.

¶172

The appeals of the accused appellants namely; (i) Radheshyam, (ii) Ramu @ Ramsingh, (iii) Bablu @ Omprakash, (iv) Jeetu @ Jeetmal, (v) Ghanshyam, (vi) Rajendra S/o Kashi/Dharam Singh, (vii) Ramgopal, (viii) Sattu @ Satyanarain, (ix) Kaptan, (x) Bhuria @ Dhara Singh and (xi) Ranjeet are allowed. Their conviction and sentence is set aside. All the appellants except appellant Rajendra S/o Kashi/Dharam Singh are on bail, they need not to surrender. Their bail bonds stand discharged.

¶173

Appellant Rajendra S/o Kashi/Dharam Singh be released forthwith, if not required in any other case. The application for suspension of sentence filed by accused appellant Rajendra S/o Kashi/Dharam Singh being SOS No. 61/2018 is also disposed of in the light of aforesaid.

¶174

As per Section 437-A of the Code of Criminal Procedure, accused-appellants whose appeals have been allowed, are directed to furnish a personal bond in the sum of Rs.25,000/- 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.

¶175

(BANWARI LAL SHARMA),J

¶176

(M.N. BHANDARI),J

¶177

//bmg 4-11

Rajendra @ Tanti v. State of Rajasthan through P P

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Rajendra @ Tanti v. State of Rajasthan through P P

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