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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  of  the  appellants  under  Section  302  read  with

Section 34 I.P.C. and sentenced them to undergo imprisonment

for life.

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

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

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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,

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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

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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

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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.