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DILIP @ DALIP v STATE - CRLA Case No. 246 of 2003  RD-RJ 715 (6 February 2007)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
JUDGMENT 1. Dilip @ Dalip Vs. State of Rajasthan
(S.B. CRIMINAL APPEAL NO.246/2003) 2. Mahavir Singh Vs. State of Rajasthan
(S.B. CRIMINAL JAIL APPEAL NO.459/2003)
S. B. Criminal Appeals under Sec.374 (2) Cr.P.C. against the judgment dated 31-1-2003 in Sessions Case
No.9/2002 (3/2002) passed by Sh. Hari Kishan
Khichar, Additional Sessions Judge (Fast Track)
Date of Judgment: February 07, 2007.
HON'BLE MR. JUSTICE SHIV KUMAR SHARMA
Mr. V.R.Bajwa ] for the appellants.
Mr. Abhishek Pareek]
Dr. Vikram Singh ]
Mr. M.L.Goyal, Public Prosecutor for the State.
BY THE COURT:
Dilip @ Dalip and Mahavir Singh, the appellants herein, were put to trial before the learned Additional Sessions Judge (Fast Track) Behror who vide judgment dated January 31, 2003 convicted and sentenced them as under:-
Both to suffer rigorous imprisonment for ten years and fine of
Rs.2000/-, in default to further suffer simple imprisonment for six months.
Both to suffer rigorous imprisonment for two years and fine of
Rs.500/-, in default to further suffer simple imprisonment for two months.
Both to suffer rigorous imprisonment for one year and fine of
Rs.200/-, in default to further suffer simple imprisonment for one month.
The substantive sentences were ordered to run concurrently. 2. It is the prosecution case that informant Rajendra Singh,
Assistant Commercial Tax Officer submitted a written report on November 22, 2001 at Police Station Behror with the averments that on the said day around 3 AM the Checking party of Commercial Tax Department under the apprehension of tax evasion qua the goods carried in truck they stopped a truck No.RJ14/G-5402, but the same was not stopped and proceeded. The checking party chased the truck towards Paota, then Delhi and it ultimately turned towards Goonti village. In the village Shiv Dutt Joshi a member of checking party boarded the truck, but the occupants of truck assaulted him with stick on his head and pushed him out of the truck. The truck was taken away after colliding against the person of Shiv Dutt Joshi. Injured Shiv Dutt
Joshi was removed to hospital Behror, where he succumbed to his injuries.
On that report a case was registered under sections 353, 332 and 302 IPC and investigation commenced. Statements of witnesses were recorded under section 161 CrPC, 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 (Fast Track) Behror. Charges under sections 332, 353 and 302/34 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 13 witnesses. In the explanation under Sec.313
CrPC, the appellants claimed innocence. One witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. Learned counsel for the appellant in the process of assailing the impugned finding made following submissions:-
(i) The FIR is hit by section 162 CrPC. There was telephonic message to the police qua the impugned incident about which the prosecution has chosen to be reticent.
(ii) The deceased was alive when brought to the hospital, but his dying declaration has not been recorded. This factum makes the version of the prosecution highly suspicious.
(iii) The prosecution has not examined independent witness for which an adverse inference should be drawn against it.
(iv) The site plan does not corroborate the ocular version of the prosecution witnesses.
(v) The trial Judge committed illegality in relying upon the arrest memo of the accused appellant.
(vi) The accused appellant was not identified by the prosecution witnesses in test identification parade.
(vii) Harish (Pw.1) identified one of the occupants of truck as appellant Dilip, yet his name does not find place in the FIR.
Therefore his testimony becomes doubtful.
(viii) The medical evidence also stands in contradiction with the ocular evidence of the prosecution.
(ix) The story of chase in the wake of Commercial tax evasion is a result of deliberation and conduction as the prosecution has failed to prove the fact that the goods in the alleged truck were transported without proper payment of commercial tax.
(x) There is no evidence to convict the appellant under section 304/34 IPC. 4. Having scanned the material on record and considering the statements of the prosecution witnesses I find that the prosecution appears to have withheld the origin and genesis of the occurrence. However looking to the fact that Shiv Dutt Joshi the employee of Commercial Tax Department made attempt to board in a running truck, this possibility cannot be ruled out that he sustained injury by a fall from the truck. The act of appellants in not stopping the truck while Shiv Dutt Joshi tried to board in it, shows that the appellants had knowledge that their act could cause death of Shiv Dutt Joshi.
Even though the appellants had no intention of causing death or such bodily injury as is likely to cause death, they are guilty of the offence punishable under Part II of Section 304 IPC. However since the prosecution failed to establish that the appellants had knowledge that the deceased belonged to
Commercial Tax department charges under sections 332 and 353 IPC are not found proved against the appellants. In the facts and circumstances of the case sentence of 10 years imposed on the appellants appears to be harsh and excessive. Taking into account all the circumstances the ends of justice would be served by reducing the sentence. 5. For the reasons aforementioned, I partly allow the appeals and instead of section 304/34, I convict the appellants Dilip @ Dalip and
Mahavir Singh under section 304 part II IPC. Looking to the fact that both the appellants have already undergone confinement for a period of more than five years and two months the ends of justice would be met in sentencing them to the period already undergone by them in confinement, I reduce the sentence from 10 years to the period already undergone by them in confinement. I however acquit the appellants of the charges under sections 332 and 353 IPC. Dilip @ Dalip and Mahavir Singh, who are in jail, shall be set at liberty forthwith, if not required to be detained in any other case.
The impugned judgment of learned trial court stands modified as indicated above.
(Shiv Kumar Sharma)J. arn/
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