Kalua @ Koshal Kishore vs The State Of Rajasthan

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No(s). 138 OF 2010

KALUA @ KOSHAL KISHORE Appellant(s)

VERSUS

THE STATE OF RAJASTHAN Respondent(s)

WITH

CRIMINAL APPEAL No(s). 139 OF 2010

PINTOO @ KAMAL KISHORE AND ANR. Appellant(s)

VERSUS

THE STATE OF RAJASTHAN Respondent(s)

J U D G M E N T

BANUMATHI, J.:

(1) These appeals arise out of the judgment and order dated

18th August, 2008 passed by the High Court of Gujarat at

Ahmedabad in D.B.Crl.Appeal No.10/2005 and D.B.Crl.Appeal

No.99/2005 in and by which the High Court affirmed the

conviction Signature Not Verified of the appellants under Section 302 read with Digitally signed by MAHABIR SINGH Date: 2019.02.09 Section 34 I.P.C. and sentenced them to undergo imprisonment 12:24:30 IST Reason:

for life.

2

(2) The case in a nutshell is as follows. On the complaint

lodged by one Prem Shankar (PW-9) on 17 th September, 1999

stating that at about 5.00 p.m.the deceased-Lakhan was busy in

the main market Bayana in inspection work of safai Karamcharis

of Municipal Council/Corporation. At that time Lakhan was

surrounded by Susya @ Lokesh (A-4), Pintoo @ Kamal Kishore (A-

1), Laddu @ Mool Chand (since acquitted), Dinesh (A-2), Kalua

(A-5), Satish (A-3) (since Acquitted) and other persons who

were armed with gun and weapons. Pintoo @ Kamal Kishore (A-1)

and Kalua @ Koshal Kishore (A-5) opened fire in the air in

order to create terror in the market. Susya @ Lokesh (A-4)

fired at Lakhan from his katta (country made gun) which hit on

the left side of the abdomen of Lakhan, and thereafter all the

accused fled away from the spot. Prem Shankar (PW-9) and other

persons present on the spot admitted the injured Lakhan in a

hospital and during the treatment at hospital Lakhan succumbed

to his injuries. Initially a case was registered under Section

307 I.P.C. against the appellants but after the death of Lakhan

FIR was altered to Section 302 I.P.C.

(3) Upon consideration of evidence of Prem Shankar (PW-9) and

Rakesh (PW-12) and that there was recovery of empty cartridges

from the scene of occurrence and recovery of country made gun

(katta) from Pintoo @ Kamal Kishore (A-1), the Trial Court

convicted Pintoo @ Kamal Kishore (A-1), Kalua @ Koshal Kishore

(A-5) and Susya @ Lokesh (A-4) under Section 302 read with

Section 34 I.P.C. and sentenced each of them to undergo life 3

imprisonment. The Trial Court acquitted Dinesh (A-2) and

Satish (A-3) and also Laddu @ Mool Chand. In appeal, the High

Court affirmed the conviction of the appellants, as aforesaid

in para (2).

(4) We have heard Ms. Charu Mathur, learned counsel appearing

for appellant-Kalua @ Koshal Kishore (A-5) and Mr. Ashok K.

Srivastava, learned counsel appearing for the appellants-Pintoo

@ Kamal Kisjhore (A-1) & Susya @ Lokesh (A-4) at great length.

We have also heard Mr. Jayant Bhatt, learned counsel appearing

for the respondent-State and also perused the impugned judgment

and other materials on record.

(5) Mr. Ashok K. Srivastava, learned counsel appearing for the

appellants-Pintoo @ Kamal Kisjhore (A-1) & Susya @ Lokesh (A-

4), inter alia, placed reliance upon the judgment of this Court

in Balaka Singh and Other v. The State of Punjab, (1975) 4 SCC

511 to contend that false implication of some of the accused,

namely, Dinesh (A-2) and Satish (A-3), raises serious doubts on

the complicity of the appellants and this aspect was not

properly considered either by the Trial Court or by the

Appellate Court.

(6) The Trial Court as well as the High Court recorded

concurrent findings of fact that the eye-witnesses, namely,

Prem Shankar (PW-9) and Rakesh (PW-12) are the natural

witnesses of the incident. Upon appreciation of the evidence, 4

both the courts recorded the concurrent findings observing that

Prem Shankar (PW-9) and Rakesh (PW-12) were purchasing some

articles in the main market Bayana, Panchayati Raj Mandir, and

that they witnessed the occurrence that the deceased-Lakhan was

surrounded by the appellants and other accused. When both the

courts have accepted their evidence as credible, we do not find

any ground to discredit the evidence of these witness.

(7) After referring to various judgments, the Trial Court vide

para (37) of its judgment observed that upon analysis of the

fact and circumstances of the case obtained, pointed out that

grain can easily be separated from the chaff and that lie and

truth can be separated easily. Considering the evidence

adduced by the prosecution, the Trial Court held that acquittal

of accused no.2 and 3 viz., Dinesh (A-2) and Satish (A-3), the

involvement of the other accused in the commission of the

offence cannot be doubted. The Trial Court and the High Court

concurrently held that evidence of eye-witnesses Prem Shankar

(PW-9) and Rakesh (PW-12) is cogent and consistent establishing

the guilt of accused Pintoo @ Kamal Kishore (A-1), Susya @

Lokesh (A-4) and Kalua @ Koshal Kishore (A-5). Having regard

to the consistent version of the eye-witnesses, we do not find

any good ground to take a different view.

(8) Insofar as the contention assailing the credibility of

Prem Shankar (PW-9) that he has been convicted in another

murder case and that he is undergoing life imprisonment, in 5

para (38) of its judgment the Trial Court recorded its findings

stating that the present incident relates to the period earlier

to awarding Prem Shankar (PW-9) sentence of life imprisonment

in the case of murder of one Rajesh and attempt to commit

murder of Thalesh. The Trial Court has rightly held that

merely because Prem Shankar (PW-9) has been convicted in other

case, it does not affect his credibility, he being the witness

in this occurrence.

(9) Insofar as the contention as to the non-recovery of the

katta (country made gun) from Susya @ Lokesh (A-4) who has

fired on the abdomen of the deceased-Lakhan, both the courts

have recorded concurrent findings that such non-recovery or

non-production of weapon would not materially affect the case

of the prosecution.

(10) Upon appreciation of evidence of the eye-witnesses and

other materials adduced by the prosecution, the Trial Court as

well as the High Court recorded the concurrent findings that

the evidence of Prem Shankar (PW-9) and Rakesh (PW-12) are

unassailable and we do not find any ground warranting

interference with the concurrent findings of the Trial court

and the High Court.

(11) The appeals are accordingly dismissed.

(12) Since the appellants are stated to be undergoing

imprisonment for more than ten years, the appellants are at

liberty to approach the competent authority for considering 6

their case for remission. As and when such representation in

this regard is made, it is for the concerned authority to take

a decision in accordance with law.

..........................J. (R. BANUMATHI)

..........................J. (R. SUBHASH REDDY) NEW DELHI, JANUARY 31, 2019.