Rajasthan High Court - Jodhpur
State vs Pappu @ Nand Lal And Ors on 25 September, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:38775-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 435/2007
State
----Appellant
Versus
Pappu @ Nand Lal And Ors.
----Respondent
For Appellant(s) : Mr. N.K. Gurjar, GA cum AAG
For Respondent(s) : Mr. R.S. Chundawat
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN Judgment Reserved on 18/09/2024 Pronounced on 25/09/2024 Per Dr. Pushpendra Singh Bhati, J:
1. This criminal appeal has been preferred by the appellant-
State claiming the following reliefs:
"It is, therefore, most humbly and respectfully prayed that this leave to appeal may kindly be granted, appeal may kindly be allowed, impugned judgment dated 16.02.2006 so far as it relates to acquittal may kindly be quashed and set aside and the accused-respondents may kindly be punished and sentenced for the offence under section 302/34 IPC."
2. As the pleaded facts and the record would reveal, on 11.07.2004 at around 9:30 p.m., one Mohan (complainant) gave Parcha Bayan (Ex.P-10) before the Police Station i.e. CHC Bijoliya stating that at the relevant time, the complainant was engaged in (Downloaded on 27/09/2024 at 10:26:44 PM) [2024:RJ-JD:38775-DB] (2 of 11) [CRLA-435/2007] the work of Hamali and was residing with his family at Bijoliya for last 25 years.
2.1. It was further stated that on 11.07.2004, in the morning, when he went in connection with his work (labourer) to Aaroli, and when he returned back home at around 7-7:30 p.m., one Pappu (accused-appellant) armed with lathi, was sitting outside the complainant's house. It was also stated that when the complainant reached his house, at that time, at around 8:00 p.m., accused- appellants Chhitar, his wife-Shanti and Pappu were abusing the complainant and his family.
2.2. It was further stated that thereafter, when the complainant went near a Temple, the aforesaid three persons i.e. accused- appellants, armed with lathis, followed the complainant and started beating him. Upon which, the complainant's wife intervened, and she was also subjected to beatings at the hands of the accused party. The said act was intervened by Balu Madrasi, Salim Khan, Durga and others, who at the relevant time, were present at the place of incident, gathered and rescued the complainant and his wife from the clutches of the accused persons. During the said incident, the complainant's wife got severely injured, and was taken in the Jeep belonging to one Laloo Seth to a hospital at Bijoliya, but upon reaching the hospital, the concerned doctor declared the complainant's wife dead. 2.3. Upon the aforesaid Parcha Bayan (Ex.P-10), the case was to be pertaining to the offences under Sections 341, 323 & 302 IPC, whereupon an FIR bearing No.118/2004 (Ex.P-11) was registered under the said provisions of law and the investigation commenced (Downloaded on 27/09/2024 at 10:26:44 PM) [2024:RJ-JD:38775-DB] (3 of 11) [CRLA-435/2007] accordingly, followed by arrest of the accused persons, namely, Pappu, Chhitar and Shanti vide Fards (Ex.P-18, 20 & 21 respectively). After investigation, the police filed a charge-sheet against the accused-appellants under Sections 302 & 323/34 IPC. 2.4. The learned Trial Court framed the charges against the accused-appellants under Sections 302/34 & 323/34 IPC, the same upon being read over to the accused-appellants, were denied by them and they claimed trial; the trial accordingly commenced.
2.5. During the trial, the prosecution produced witnesses (PW-1 to PW-15) and exhibited documents (Ex.P-1 to Ex.P-23); in defence, documents (Ex.D-1 to Ex.D-10) were exhibited. The accused-appellants were examined under Section 313 Cr.P.C., wherein while pleading not guilty, the accused-appellants stated that they had been falsely implicated in this case. 2.6. Thereafter, upon hearing the contentions of both the parties as well as considering the material and evidence placed on record, the learned Trial Court, vide the impugned judgment dated 16.02.2006, acquitted the accused-appellants of the charge against them under Section 302/34 IPC; convicted them under Section 323/34 IPC, but extended to them the benefit of Section 4 of the Probation of Offenders Act, 1958. Hence, the present appeal has been preferred by the appellant-State claiming the afore- quoted reliefs.
3. Learned GA cum AAG appearing on behalf of the appellant- State submitted that as per Parcha Bayan (Ex.P/10) of the injured (Downloaded on 27/09/2024 at 10:26:44 PM) [2024:RJ-JD:38775-DB] (4 of 11) [CRLA-435/2007] witness PW.13-Mohan, the accused-respondents caused injuries to him and killed his wife-Mohini (deceased). It was further submitted that the aforesaid Parcha Bayan (Ex.P/10) was recorded in the presence of PW.5-Dr. Akshay Saxena, which shows the involvement of the accused-appellants.
3.1. It was also submitted that a total of three injuries were caused to the deceased and she died due to rupture of spleen, as a result of injury No.3 and the said cause of death was fully supported by PW.5.
3.2. It was further submitted that the learned Trial Court in impugned judgment clearly observed that the deceased intervened during the fight to protect her husband PW-13 Mohan, during course of which, the accused-respondents caused injuries to her, but despite such observation, the learned Trial Court has acquitted the accused-respondents under Section 302 IPC is not justified in law.
3.3. It was further submitted that the medical evidence as well as other evidence clearly proved that the accused-respondents had committed the crime in question, but the learned Trial Court instead of convicting them under Section 302 IPC, convicted them under Sections 323/34 IPC while giving the benefits of the Probation of Offenders Act, 1958, which is not sustained in eye of law.
4. On the other hand, learned counsel for the accused- respondents, while opposing the aforesaid submissions made on behalf of the appellant-State, submitted that as per the postmorten report (Ex.P/13), the deceased died due to rupture of (Downloaded on 27/09/2024 at 10:26:44 PM) [2024:RJ-JD:38775-DB] (5 of 11) [CRLA-435/2007] spleen, which resulted on count of injury no.3, and that the accused-respondents did not have any knowledge that if such an injury is caused on a specific party of the body, the same would result into the death in question.
4.1. It was further submitted that PW.5-Dr. Akshay Saxena in his testimony stated that the injuries sustained by the deceased could have been caused even due to falling on the stone, more particularly, when the place of incident, even as per the prosecution itself, was a rocky place. It was also submitted that there was no intention on part of the accused-respondents to cause death of the deceased and that because of the fight, the accused-respondents were convicted under Sections 323/34 IPC while giving aforesaid benefit.
4.2. It was further submitted that all injuries sustained by the deceased as well as PW.13-Mohan were simple in nature and there is nothing on record to show that the accused-respondents deserved to be convicted under Section 302 IPC. It was also submitted that all the important witnesses including the eyewitnesses namely, PW.3, PW,6, PW.8, PW.9, PW.12, and PW.14 have turned hostile during the trial, and therefore, the impugned judgment does not deserve any interference in the present appeal.
5. Heard learned counsel for the parties as well as perused the record of the case.
6. This Court observes that the allegation against the accused- respondent pertains to murder of the deceased. After conclusion of the trial, the learned Trial Court, acquitted the accused- respondents under Sections 302/34 IPC, while convicting them (Downloaded on 27/09/2024 at 10:26:44 PM) [2024:RJ-JD:38775-DB] (6 of 11) [CRLA-435/2007] under Section 323/34 IPC, and giving them the benefit of probation.
7. This Court further observes that the main evidence, as produced by the prosecution, against the accused-respondents, was the testimony of PW.13-Mohan, the injured witness in the present case and his Parcha Bayan (Ex.P/10) was recorded by the PW.10-Omkar Singh in the presence of PW.5-Dr. Akshay Saxena; as per the Parcha Bayan, the accused-respondents attacked PW.13 and during course of such attack, the deceased intervened and therefore, she sustained injuries, resulting into her death. In furtherance, at the time incident in question, Balu Madarasi, Mohammad Salim, Durga Dhobi and others were also present. 7.1. This Court also observes that the eyewitness Balu Madarasi (present at the time of incident in question), as per the Parcha Bayan (Ex.P-10), was not produced as witness by the prosecution and that another eyewitness PW-3 Mohammad Salim alongwith the other important witnesses PW.6- Smt. Kalashi, PW.7- Asha Dhobi, PW.-Durga Shankar, PW.8-Ratan Lal, PW.12-Ram Lal, and PW.14-Ghanshyam have turned hostile during the trial. Therefore, when the aforesaid Parcha Bayan (Ex.P/10) of the complainant- Mohan (PW-13), when seen with the other evidence on record, does not support the prosecution story.
8. This Court further observes as per the postmortem report (Ex.P/13), a total of three injuries were found on the body of the deceased, out of which, two injuries were simple in nature, the death in question was resulted due to rupture of spleen, on count of injury No.3; in furtherance, as per the testimony of PW.5- (Downloaded on 27/09/2024 at 10:26:45 PM) [2024:RJ-JD:38775-DB] (7 of 11) [CRLA-435/2007] Akshay Saxena who conducted the postmortem of the deceased, injury no.3 could have been caused due to collision or falling on a stone, and it is a matter of record that the place of incident was a rocky place.
9. This Court further observes that as per the information given by the accused-respondent Chhitar under Section 27 of the Indian Evidence Act, 1872, a lathi (Wooden stick) was recovered, but the said recovery was not supported by PW.2-Moda and PW.1-Ram Lal, who were the witness (Motbirs) of recovery, and that, they both have turned hostile during the trial and did not support the prosecution story. Similarly, as regards recovery of lathi (wooden stick) made on the basis of the information given by accused- respondent Pappu, the said recovery was not supported by PW.12- Ram Lal and PW.3-Mohammad Salim, who were the witness of the recovery and have turned hostile during the trial, thus, have not supported the prosecution story.
10. At this juncture, this Court deems it appropriate to reproduce the relevant portions of the judgments rendered by the Hon'ble Apex Court in the cases of Mallappa & Ors. Vs. State of Karnataka (Criminal Appeal No. 1162/2011, decided on 12.02.2024) and Babu Sahebagouda Rudragoudar and Ors. Vs. State of Karnataka (Criminal Appeal No. 985/2010, decided on 19.04.2024), as hereunder-:
Mallappa & Ors. (Supra):
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which (Downloaded on 27/09/2024 at 10:26:45 PM) [2024:RJ-JD:38775-DB] (8 of 11) [CRLA-435/2007] come into play while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."
Babu Sahebagouda Rudragoudar and Ors. (Supra):
"38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:
"8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;(Downloaded on 27/09/2024 at 10:26:45 PM)
[2024:RJ-JD:38775-DB] (9 of 11) [CRLA-435/2007] 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles: (a) That the judgment of acquittal suffers from patent perversity; (b) That the same is based on a misreading/omission to consider material evidence on record; (c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
11. This Court further observes that one eyewitness Babu Madrasi was not produced as witness before the learned Trial Court; eyewitness namely PW.3, as well as other important witnesses i.e. PW-6, PW-7, PW-8, PW-9, PW-12 and PW-14, as also witnesses of the recoveries have turned hostile during the trial. This Court also observes that it is reflected from the medical evidence that the injuries said to have been caused to the deceased by the accused-respondents were not sufficient to cause her death. This Court further observes that there was no intention, on the part of the accused-respondents to commit the crime in question, is reflected from the record.
12. This Court also observes that the learned Trial Court passed the impugned judgment of acquittal of the accused-respondents (Downloaded on 27/09/2024 at 10:26:45 PM) [2024:RJ-JD:38775-DB] (10 of 11) [CRLA-435/2007] under Sections 302/34 IPC which in the given circumstances, is justified in law, because as per the settled principles of law as laid down by the Hon'ble Apex Court in the aforementioned judgments, to the effect that the judgment of the Trial Court can be reversed by the Appellate Court only when it demonstrates an illegality, perversity or error of law or fact in arriving at such decision; but in the present case, the learned Trial Court, before passing the impugned judgment had examined each and every material, evidence and witnesses at a considerable length and duly analyzed the documents produced before it, coupled with examination of the oral as well as documentary evidence, and thus, the impugned judgment suffers from no perversity or error of law or fact, so as to warrant any interference by this Court in the instant appeal.
13. This Court also observes that the scope of interference in the acquittal order passed by the learned Trial Court is very limited, and if the impugned judgment of the learned Trial Court demonstrates a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal as held by the Hon'ble Apex Court in the aforementioned judgment, and thus, on that count also, the impugned judgment deserves no interference by this Court in the instant appeal.
14. This Court observes that the conclusion regarding acquittal of the accused-respondents under Sections 302/34 IPC and their conviction under Sections 323/34 IPC while giving benefits of Probation of Offenders Act, 1958, as recorded in the impugned (Downloaded on 27/09/2024 at 10:26:45 PM) [2024:RJ-JD:38775-DB] (11 of 11) [CRLA-435/2007] judgment of the learned Trial Court, is justified in law and warrant no interference by this Court in the instant appeal.
15. In light of the aforesaid observations and looking into the factual matrix of the present case as well as in light of the aforementioned precedent laws, this Court does not find it a fit case warranting any interference.
16. Consequently, the present appeal is dismissed, and accordingly, the impugned judgment passed by the learned Trial Court is upheld.
16.1. Keeping in view the provision of Section 437-A Cr.P.C., the accused-respondents are directed to furnish a personal bond in a sum of Rs. 25,000/- each and a surety bond each in the like amount, before the learned Trial Court, which shall be made effective for a period of six months, to the effect that in the event of filing of Special Leave Petition against this judgment or for grant of leave, the accused-respondents, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court as and when called upon to do so.
16.2. All pending applications stand disposed of. Record of the learned Trial Court be sent back forthwith.
(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J skant/-
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