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JITENDER KUMAR ALIAS BITTU v STATE - CRLA Case No. 325 of 2001  RD-RJ 2136 (6 October 2006)
AT JAIPUR BENCH
1. Jitendra Kumar @ Bittu Vs. State of Rajasthan
(D.B. CRIMINAL APPEAL NO.325/2001)
2. State of Rajasthan Vs. Banshidhar & Others
(D.B. CRIMINAL APPEAL NO.32/2002)
D. B. Criminal Appeals under Sec.374 (2) Cr.P.C. against the judgment dated 18-5-2001 in Sessions Case No.46/1999 passed by Sh. Rahdey Mohan Srivastava, RHJS, Additional Sessions Judge No.2 Sikar.
3. Hemant Kumar Vs. State of Rajasthan & Others
(D.B. CRIMINAL REVISION PETITION NO.791/2001)
D. B. Criminal Revision Petition under Sec.397 read with 401 Cr.P.C. against the judgment dated 18-5-2001 in Sessions Case No.46/1999 passed by Sh. Radhey Mohan Srivasatava, RHJS, Additional Sessions Judge No.2 Sikar.
Date of Judgment: October 06, 2006.
HON'BLE MR. JUSTICE SHIV KUMAR SHARMA
HON'BLE MR. JUSTICE CHATRA RAM JAT
Mr. Suresh Sahni] for the appellant & accused respondents.
Mr. R.P.Kuldeep, Public Prosecutor for the State.
Mr. Anoop Dhand, for the complainant.
BY THE COURT: (PER HON'BLE Shiv Kumar Sharma,J.)
Jitendra Kumar @ Bittu, the appellant in appeal No.325/2001, along with co-accused Banshidhar, Basant Kumar and Jagdish Prasad was put to trial before learned Additional Sessions Judge No.2, Sikar, who while acquitting three co-accused, convicted and sentenced Jitendra Kumar under section 302 IPC to suffer imprisonment for life and fine of Rs.5000/-, in default to further suffer rigorous imprisonment for one year.
2. The State of Rajasthan and the complainant respectively preferred appeal and revision petition bearing Nos.32/2002 and 791/2001 challenging the acquittal of three co-accused persons.
3. In the course of argument it was revealed that appellant had absconded from the Jail. Therefore a report in this regard was called for. The Superintendent Central Jail Jaipur submitted report and informed that appellant Jitendra Kumar had absconded from the custody on September 20, 2001 while he was taken to the court of Additional Sessions Judge No.2 Sikar and could not be nabbed.
4. The question therefore arises as to whether the appeal preferred by the convict, who subsequently absconded from the custody, can be heard?
5. In Shyam Deo Pandey Vs. State of Bihar (1971)1 SCC 855, the Hon'ble Supreme Court indicated that the criminal appeal may be disposed of after consideration material on record on merits even in the absence of counsel for the accused appellant or the Public Prosecutor.
6. In Ram Naresh Yadav Vs. State of Bihar (AIR 1987 SC 1500) however, the Apex Court held that the appeal can be disposed of on merits only after hearing the appellant or his counsel or after appointing another counsel at State Cost to argue the case on behalf of the accused.
7. Bench of Hon'ble three Judges of Supreme Court in Bani Singh Vs. State of
UP (1996)4 SCC 720, considered the cases of Shyam
Deo Pandey and Ram Naresh
Yadav and held as under:-
(Paras 14, 15 and 16)
“14. We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo case appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it `must' call for the record and Section 386 mandates that after the record is received, the appellate court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the appellate court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in judgment, but by cross checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non- prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav case that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.”
“15. Secondly, the law expects the appellate court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the appellate court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the appellate court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice for the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the court shall adjourn the case if both the appellant and his lawyer are absent. If the court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/ appellant if his lawyer is not present. If the lawyer is absent, and the court seems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav case did not apply the provisions of Sections 385-386 of the Code correctly when it indicated that the appellate court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent.”
“16. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again till the court issues a warrant for the appellant's presence. A complaint to the Bar Council against the lawyer for non-appearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher court can remedy the situation if there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted.”
8. Following the ratio indicated in Bani Singh Vs. State of UP (supra) we proceed to dispose of the instant matters on merits. We have heard Mr. Suresh Sahni, learned counsel for the appellant Jitendra Kumar as well as Mr.R.P.Kuldeep learned Public Prosecutor and Mr.Anoop Dhand, learned counsel for the complainant and scrutinised the record.
9. As per prosecution story on June 11, 1999 the informant Hemant Kumar (Pw.26) submitted a written report at Police Station Kotwali Sikar stating therein that on the said day he along with his father Shanti Prasad, Manoj Kumar Ramniwas had gone to attend the Court of Additional Sessions Judge Sikar. In the court they saw Banshidhar, Ramesh Kumar, Basant, Anjani, Khem Chand Mahala, Mahesh Saini, two sons-in-law of Banshidhar and Yogesh Sharma standing in the court. Around 12.30 PM while the informant and other persons were returning to their house in two Taxi-cars, the accused followed the cars in motor cycles and near Ashoka Hotel, opened fire at Shanti Prasad and killed him. On that report case under sections 147, 148, 149 and 302 IPC was registered and investigation commenced. Dead body was subjected to post mortem, statements of witnesses were recorded, the accused were arrested, necessary memos were drawn and on completion of investigation, charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No.2 Sikar. Charges under sections 302, 302/120B and 302/34 IPC were framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 45 witnesses. In the explanation under Sec.313 CrPC, the appellant claimed innocence. In defence one witness Dw.1 Anjani Kumar was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant Jitendra Kumar @ Bittu under section 302 IPC. However the appellant stood acquitted of the charge under section 302 read with 120B IPC.
10. Death of Shanti Prasad was undeniably homicidal in nature. As per post mortem report (Ex.P-33) following ante mortem injuries were found on the dead body:-
Inlet wound: 2cms above right eye brow on forehead vice in diameter underlying
frontal bone fractured in multiple pieces.
Outlet wound: Lying in front of left ear 5x3cms in size extending vertically on face in front of left ear underlying temporal & mastoid bone fractured.
The cause of death was shock because of gun shot on right side of forehead which lead to fracture of frontal bone.
11. Coming to the prosecution evidence we find that Ramchandra (Pw.5) had seen appellant Jitendra opening fire and he identified Jitendra in the trial court as well as in the identification parade. While recording statement of Ram Chandra, learned trial court noted as under:-
"???? ?? ????????? ???? ????? ?? ????? ??? ?? ??? ??????? ?? ??????? ???? ?? ?????? ??? ???? ?????? ?? ???? ????? ????? ?????? ????????? ?? ???? ?? ???? ?? ???? ???? ???"
Ram Chandra put his signatures on the identification memo (Ex.P-8). Other witnesses viz. Prakash (Pw.9) Mohd. Farookh (Pw.6), Manoj Kumar (Pw.31) and Manoj Sharma (Pw.32) also correctly identified appellant Jitendra in identification parade. Learned Magistrate Sh.Bhagwan Sahay Parewa (Pw.27), in whose presence identification parade was held, proved memo of identification. Pistol allegedly used in commission of offence got recovered vide recovery memo (Ex.P-74) on the basis of disclosure statement of appellant Jitendra. In our opinion, charge against appellant under section 302 IPC is established beyond reasonable doubt. Jitendra was inhabitant of Bhiwani (Haryana) and his presence at Sikar on the date of incident is established. He stayed at Annapoorna Hotel. Register of Hotel Annapoorna (Ex.P-36) goes to show that at serial No.61 of page 7 name of Jitendra @ Bittu was entered. The prosecution thus is able to prove that Jitendra was very much in Sikar on the date of incident.
12. The charge of conspiracy however could not be established against Jitendra and other co-accused persons viz. Banshidhar, Basant Kumar and Jagdish Prasad. It could also not be proved that the co-accused had shared common intention with Jitendra to kill Shanti Prasad. The fact that co-accused Banshidhar and Basant had withdrawn a sum of Rs.50,000/- from their firm on June 11, 1999 does not show that the amount had been given to Jitendra.
13. For these reasons, we dispose of instant matters in the following terms:-
(i) The appeal No.325/2001 preferred by Jitendra Kumar @ Bittu stands dismissed and his conviction and sentence under section 302 IPC are confirmed. Since Jitendra Kumar @ Bittu is absconded, as reported by Jail Authorities, steps shall be taken to take him in custody.
(ii) In appeal No.32/2002 and revision petition No.79/2001 since accused respondent Banshidhar expired the proceedings against him stand abated. In so far as allegations against respondents Basant Kumar and Jagdish Prasad are concerned, there is no evidence against them and they were rightly acquitted of the charges under sections 302 read with 120B and 302 read with 34 IPC. The afore quoted appeal and revision being devoid of merit stand dismissed.
(iii) The impugned judgment of learned trial court stands confirmed as indicated above.
(Chatra Ram Jat),J. (Shiv Kumar Sharma)J.
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