Rajiv Kumar vs State of Haryana

K.K. Srivastava, J.

This appeal is directed against the judgement dated October 16/17, 1995, passed by Shri S.K. Kapoor, Additional Sessions Judge, Rohtak, convicting the accusedappellant Rajiv Kumar alias Kala under Section 201, Indian Penal Code, and sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/. In default of payment of fine, the appellant has been ordered to suffer further rigorous imprisonment for a period of six months.

The appellant was tried in the Court of the Additional Sessions Judge, Rohtak, on the charges under Sections 366/376/302/316 and 201, Indian Penal Code. The prosecution case against the appellant, stated briefly, was that he abducted Shrimati Shakuntla, deceased, the wife of Om Parkash, on August 21, 1993, in the area of village Kheri Jasor situated within the limits of Police Station Saddar, Bahadurgarh. After abducting the aforesaid Shrimati Shakuntla, the appellant is alleged to have committed rape on her the same day and thereafter committed her murder. The prosecution further alleged that at the time of the occurrence, the deceased Shrimati Shakuntla was carrying a child in her womb which was also killed due to her murder. The appellant, it is alleged, caused the evidence of murder to disappear by concealing the dead body of Shrimati Shakuntla in a heap of rubbish (kurari) and thereby committed the offence under Section 201, Indian Penal Code also. For these offences, FIR No. 256 dated August 24, 1993, was registered at the aforesaid Police Post. The case of the appellant was committed to the Court of Sessions by the concerned Magistrate. The appellant was tried in the Court of the Additional Sessions Judge, Rohtak, as mentioned earlier. He was charge sheeted for the offences punishable under Sections 366/376/302/316 and 201, Indian Penal Code. The appellant pleaded not guilty to the charges and claimed to be tried. The prosecution at the time of the trial examined eight prosecution witnesses including Dr. S.P. Saini, Medical Officer, C.H.C. Julana and Dr. Vijay Khangwal, PW.2, who had conducted the post mortem examination on the dead body of the deceased Shrimati Shakuntla Devi, on August 25, 1993, at 4.30 P.M. The prosecution further examined Bhim Singh, PW.3, who is a witness to the recovery of the dead body of deceased Shrimati Shakuntla, made at the instance of the appellant, who suffered a disclosure statement; S.I. Raj Kumar, PW.5; Vinod Kumar, a photographer, PW.6; and Jagdish Chander, PW.7, Patwari of the halqa who had prepared the site plan on a scale. Inspector Risal Singh, PW.8, who completed the investigation and submitted the challan was also examined. The statement of the appellant was recorded under Section 313 Code of Criminal Procedure, and he was called upon to enter his defence, as it was not found to be a case of no evidence against him. The appellant examined Dhanpati, DW.1, wife of Jagpal Singh, who produced the letter mark A; Mahender Singh, DW.2 who is a witness of the arrest of the accusedappellant and Ram Avtar, DW. 3 who brought the record pertaining to Raj Singh, the brother of the complainant.

The learned trial Judge acquitted the accused of all the offences noticed above, except the offence punishable under Section 201, Indian Penal Code, and sentenced him as mentioned above. Feeling aggrieved against his conviction and sentence under Section 201, Indian Penal Code, the accused has filed this appeal in this Court.

I have heard the learned counsel for the appellant and the learned Assistant Advocate General, Haryana. I have been taken through the judgment of the learned trial Judge on the record of the case.

The learned counsel for the appellant argued that once the accused was acquitted of the offences under Section 366/376/302 and 316, Indian Penal Code, he could not legally be convicted under Section 201, Indian Penal Code. In support of the contention, the learned counsel placed reliance on Duvvur Dagaradharmareddy v. State of Andhara Pradesh, AIR 1971 Supreme Court 1461. Therein the Supreme Court held that if once the case of the prosecution regarding the offence of murder is not accepted, it follows that the appellant cannot be convicted for the offence under Section 201, Indian Penal Code, either because the evidence relating to that offence is common. The other authority relied upon by the learned counsel for the appellant in support of his submission is State of U.P. v. Kapil Deo, AIR 1991 Supreme Court 2257, wherein the Supreme Court decision in Duvvur Dagaradharmareddy''s case (supra) was relied on and it was held that once the accused was acquitted of the offence of murder punishable under Section 302, Indian Penal Code, he could not be convicted under Section 201, Indian Penal Code. In view of the settled position of law, as noticed above, the conviction of the appellant for the offence under Section 201, Indian Penal Code, in the face of his acquittal under Section 366/376/302 and 316 Indian Penal Code, cannot be sustained.

Resultantly, the appeal is allowed. The conviction and sentence passed by the Additional Sessions Judge, Rohtak, against the appellant are set aside, and the appellant is acquitted of the offence punishable under Section 201, Indian Penal Code. The appellant shall be set at liberty forthwith in case he is not required in connection with any other case.