[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 1048/2006 UDAIBHAN SINGH & ANR. Vs. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 25.09.2006 PASSED BY THE ADDITIONAL DISTRICT & SESSIONS JUDGE (FAST TRACK), HINDAUN CITY, DISTRICT KARAULI IN SESSIONS CASE NO. 14/2006 (75/2005) Date: 21/08/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. Biri Singh for the accused-appellants. Mr. B.S. Chhaba, Public Prosecutor for the State. *** The present criminal appeal is directed against the impugned judgment dated 25.09.2006 passed by the Additional Sessions Judge (Fast Track), Hindaun City, Karauli, whereby the accused- appellants has been convicted and sentenced as under:- U/s 326/34 IPC Rigorous imprisonment for 5 years with a fine of Rs. 1,000/- each, in default of payment of fine to further undergo imprisonment for three months. U/s 394/398 IPC Rigorous imprisonment for 7 years with a fine of Rs. 2,000/- each, in default of payment of fine to further undergo imprisonment for six months. Both the sentences were ordered to run concurrently. [2] 2. In brief the facts of the case are that on 09.04.2005 on the basis of the Parcha Bayan of complainant Ram Kishore Meena, FIR No. 57/2005 came to be registered for the offence under Section 394 IPC at Police Station Nadoti, wherein it was stated that on 07.04.2005 when complainant was returning in TATA-407 vehicle from Mahavirji, he was intercepted by two boys. He was threatened and pulled out from the vehicle and then hit on his back by the gun's back side. One of them opened fire upon the complainant, he escaped but received gun shot injury on the palm of his right hand. They again opened fire when the complainant refused to give Rs. 500/- demanded by them and then fled away from the place of occurrence. Thereafter the complainant was taken to SMS Hospital by some persons. 3. After registering the case, the police started investigation. The accused-appellants were arrested. After completion of the investigation, charge-sheet for the offence under Section 394 (307, 326) 398 IPC and under Section 5/27 of the Arms Act was filed against the accused-appellants and trial commenced. Charges for the offence under Sections 398,394, 307/34 IPC and Section 27 of the Arms Act were framed against the accused-appellant Udaibhan, whereas against the accused-appellant [3] Batti Lal charges for the offences under Sections 398,394 and 307/34 IPC were framed. The accused- appellants denied the charges and claimed to be tried. 4. The prosecution in support of its case examined as many as 12 witnesses and got exhibited some documents. The accused-appellants in their statements under Section 313 Cr.P.C. stated that they have been falsely implicated in the case due to enmity. In defence, one witness namely Fateh Singh was examined and some document were also exhibited. 5. The Additional District & Sessions Judge (Fast Track), Hindaun City, District Karauli, after hearing rival submissions of the respective parties vide its impugned judgment dated 25.09.2006 convicted and sentenced the accused-appellants as mentioned herein above. 6. The main challenge to the impugned judgment dated 25.09.2006 by the accused-appellants is on the ground that the prosecution has utterly failed to prove its case against the accused- appellants beyond reasonable doubt as there are several infirmities and contradictions in the statements of the prosecution witnesses and no [4] reliance can be placed upon their testimony. It has been further averred that the trial court has not properly appreciated the evidence of PW1 Ram Kishore Meena, the complainant and only on the sole testimony of PW1 which suffers from contradictions and omissions, convicted and sentenced the accused- appellants. 7. Learned counsel appearing for the accused- appellants also contended that test identification parade was conducted after a great delay as the accused-appellants were arrested after about five months of the incident and the accused-appellant Udaibhan was arrested on 08.09.2005 and his identification parade was conducted on 29.09.2005, whereas accused-appellant Batti Lal was arrested on 29.09.2005 and his identification parade was conducted on 06.10.2005. 8. It has been further contended that the accused-appellants were already shown to the complainant at Police Station Nadoti and thus, the whole testimony of complainant PW1 Ram Kishore Meena and the test identification parade become suspicious and contrary to the provisions of law. 9. It is further alleged that the trial Court has not properly appreciated the statement of DW1 [5] Fateh Singh, examined in defence, who soon after the incident reached at the place of occurrence and took the complainant to the hospital and this fact has been verified by PW1 Ram Kishan Meena in his statement. It is also submitted that the Magistrate concerned who conducted identification parade has not been examined and, thus, the identification parade was not proper and contrary to the law. 10. In support of his submissions, the learned counsel for the accused-appellants has placed reliance on the judgment rendered by the Division Bench of this Court in the case of Irshad @ Risal Vs. State of Rajasthan, reported in 2007(1) R.C.C. 144, wherein the Division Bench has held that “(i) Identification of appellant, Magistrate who conducted identification, not examined; (ii) Wife of deceased who could have testified as to personation, not examined but implicated as co- accused by I.O., discharged by trial court- Identification, though, does not constitute substantive evidence, however, full particulars of identification parade not given- Such evidence of identification, not proved by Magistrate, cannot be treated as evidence of identification and conviction on that basis illegal.” 11. It is further contended by the learned [6] counsel for the accused-appellants that for one gunshot injury, the accused-appellants cannot be punished for the offence under Section 398 and 326 IPC. 12. Per contra, learned Public Prosecutor appearing for the State has submitted that the prosecution is able to prove the guilty against the accused-appellants beyond reasonable doubt. He further submits that both the accused-appellants are habitual offenders and are casual in handling weapons. The accused-appellant also fired on a girl who was admitted in SMS Hospital in the same ward for treatment where the complainant was admitted on the same day, who was injured by gunshot. 13. It is further submitted that after committing this offence, on the same day the accused-appellant Udaibhan committed another offence at about 06.30 p.m., in which he opened fire on complainant's husband Gopal and the pellets hit his right hand. It appears that consecutively the accused-appellant committed two offences on the same day. It is also submitted that against accused-appellant Udaibhan 12 other criminal cases are also pending and he is a habitual offender. 14. I have heard learned counsel for the [7] accused-appellant, learned Public Prosecutor for the State and have also gone through the impugned judgment dated 25.09.2006 as also the material available on the record. 15. As per the learned counsel for the accused-appellants, Magistrate has not been examined who conducted identification parade and if Magistrate is not examined, identification parade cannot be said to be proper as held by the Division Bench of this Court in the case of Irshad @ Risal Vs. State of Rajasthan (supra). 16. In the case which was before the Division Bench, conviction was based upon circumstantial evidence and the circumstances collected by the prosecution do not form chain of events for drawing inference that appellant was guilty and no other person could commit the offence. Circumstances create suspicion, cannot substitute for proof and therefore, the judgment of the trial Court was interfered with and to prove the chain of circumstances, Magistrate who conducted identification parade was essentially to be examined. 17. But here in the instant case, the ratio decided by the Division Bench of this Court in the [8] case of Irshad @ Risal Vs. State of Rajasthan (supra) is not applicable as the identification parade was correctly conducted and there are eye- witness to the incident and the prosecution is able to establish the guilt against the accused- appellant Udaibhan for the offence under Section 326/34 and 394/398 IPC. The trial Court has rightly observed that no case under Section 307 IPC is made out against the accused-appellant Udaibhan and therefore, he has been convicted for the offence under Section 326 IPC. 18. As per the medical report, the gunshot injury sustained by the complainant on the palm of the right hand was grievous in nature. Thus, looking to the nature of injury, the accused- appellant has been convicted under Section 326/34 IPC and sentenced to undergo rigorous imprisonment for 5 years with a fine of Rs. 1,000/-, in default of payment of fine to further undergo imprisonment for three months. 19. Accused-appellant Udaibhan was charged for the offence under Section 5/27 of the Arms Act on technical grounds and has been acquitted from the aforesaid offence as sanction was not obtained from the District Magistrate. [9] 20. Further the accused-appellant has been held responsible for voluntarily causing hurt in committing robbery as after intercepting and stopping the vehicle, the accused-appellants demanded money and on refusal, caused injury with firearm and therefore, he has been convicted under Section 394/398 IPC and sentenced to undergo rigorous imprisonment for 7 years with a fine of Rs. 2,000/-, in default of payment of fine to further undergo imprisonment for six months. 21. The accused-appellant Udaibhan on the same day after few hours of committing this offence, committed another offence by causing firearm injuries on the injured persons, for which FIR No. 56/2005 was registered at Police Station Nadoti and vide judgment dated 25.09.2006 passed by the Additional District & Sessions Judge (Fast Track), Hindaun City, District Karauli passed in Sessions Case No. 1/2006 (71/2005), the accused- appellant Udaibhan was convicted under Section 307 IPC and Section 3/25 of the Arms Act and sentenced to undergo rigorous imprisonment for 7 years with a fine of Rs. 2,000/- under Section 307 IPC and to undergo rigorous imprisonment for one year with a fine of Rs. 500/- under Section 3/25 of the Arms Act. [10] 22. As per the record, there are as many as 12 criminal cases pending against accused-appellant Udaibhan under various Sections of the Indian Penal Code and thus he is a habitual offender. 23. Looking to the overall facts and circumstances of the case, this Court do not find any illegality or error in the impugned judgment dated 25.09.2006 passed by the Additional District & Sessions Judge (Fast Track), Hindaun City, District Karauli convicting and sentencing the accused-appellant Udaibhan Singh under Sections 326/34 and 394/398 IPC and the same is hereby upheld. 24. In the result, so far as accused-appellant No.1 Udaibhan Singh is concerned, as observed herein above, his appeal fails being devoid of merit and the same is hereby dismissed. 25. As regards accused-appellant No.2 Batti Lal, admittedly gunshot injury has not been attributed to him but he accompanied with the accused-appellant Udaiban Singh. As per the record, no other criminal case of similar nature is pending against accused-appellant Batti Lal and he has already remained in custody for about ten months and considering these facts the sentence awarded to [11] the accused-appellant Batti Lal was suspended by the co-ordinate Bench of this Court vide order dated 26.07.2007. 26. The prosecution is able to prove this fact that the accused-appellant Batti Lal along with accused-appellant Udaibhan Singh participated in the offence, but admittedly firearm was not used by accused-appellant Batti Lal. Thus, since the gunshot injury was caused by accused-appellant Udaibhan Singh and not by accused-appellant Batti Lal, therefore, his conviction under Section 326/34 IPC is not sustainable, but accused-appellant Batti Lal was equally responsible in committing the offence under Section 394/398 IPC as he co-operated the accused-appellant Udaibhan Singh in committing the offence of robbery and the prosecution is able to prove the guilt of the accused-appellant Batti Lal for the offence under Section 394/398 IPC beyond reasonable doubt. 27. Therefore, considering the overall facts and circumstances of the case, accused-appellant No.2 Batti Lal deserves to be acquitted from the offence under Section 326/34 IPC but his conviction under Section 394/398 IPC deserves to be maintained. [12] 28. Consequently, as regards accused-appellant No.2 Batti Lal, his appeal is partly allowed. He is acquitted from the offence under Section 326/34 IPC but his conviction under Section 394/398 IPC is maintained. He is on bail, his bail bonds stand cancelled. He shall be forthwith taken in custody to serve out the remaining part of his sentence awarded under Section 394/398 IPC. (K.S. RATHORE), J. /KKC/ (Hearing/reserved)