Rajasthan High Court - Jodhpur
Bhanwara Ram And Anr vs State Of Rajasthan on 2 August, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:30662-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 210/1996
Bhanwara Ram And Anr
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Mr. Sunil Beniwal with
Mr. Shailendra Gwala
For Respondent(s) : Mr. B.R. Bishnoi PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment
Reserved on 24/07/2024
Pronounced on 02/08/2024
Per Dr. Pushpendra Singh Bhati, J:
1. This criminal appeal under Section 374(2) Cr.PC. has been
preferred claiming the following relief:
"It is, therefore, most respectfully prayed that this
appeal may kindly be allowed and the appellants may kindly
be acquitted from the charges levelled against them."
2. The matter pertains to an incident occurred in the year 1993
and the present appeal is pending since the year 1996.
3. The accused-appellants laid a challenge to the judgment of
conviction and order of sentence dated 22.03.1996 passed by the
learned Sessions Judge, Churu, in Sessions Case No.35/94 (State
of Rajasthan Vs. Bhanwara Ram & Anr.), whereby the accused-
appellants have been convicted and sentenced as below:
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Offence Sentence Fine
under
Section
447 IPC Two months' S.I. (each of
the accused-appellants)
302/34 Life Imprisonment (each of Rs.200/- (each of the
IPC the accused-appellants) accused-appellant), in
default, to undergo
further two months' R.I.
323 IPC Six Months' R.I.
325/34 One year's R.I. (each of the Rs.200/- (each of the
IPC accused-appellants) accused-appellants), in
default, to undergo
further two months' S.I.
4. At the outset, it has been brought to the notice of this Court
that accused-appellant No.1-Bhanwara Ram since already expired,
therefore, the instant appeal qua him already stood abated, as
reflected in the order dated 15.05.2024. Thus, now the present
appeal survives only against accused-appellant No.2- Mst. Dhapa,
and the arguments were heard only to the extent of the said
surviving accused-appellant, and the adjudication in the instant
appeal is being made accordingly.
5. Brief facts of the case, as placed before this Court by learned
counsel for the accused-appellant, are that on 18.04.1993,
statement of Mst. Bhanwari Devi, who was admitted in Sri
Dungargarh Government Hospital, was recorded by the police
(P.S. Dungargarh), wherein she stated that one of her agricultural
field was situated at Rohi Momasar in which she was living, in a
Dhani, alongwith her husband and children.
5.1. As per the said statement, on the west and east sides of the
said field, there situated the fields of accused-appellant Bhanwara
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Ram (now deceased), and on the western side field, the said
accused-appellant (now deceased) was living in a Dhani. There
was no way to reach the eastern side of the field, and thus, the
accused-appellant (now deceased) wanted to approach his field
forcefully, through the field of Mst. Bhanwari Devi.
5.2. It was further stated by Mst. Bhanwari Devi that on
18.04.1993 itself in the morning i.e. at around 11-12 o'clock, she,
her husband Rewantram and Khetaram son of her brother-in-law
(Devar-Jetha Ram) were at the Dhani of Mst. Bhanwari Devi. At
that time, Gopiram son of the accused-appellant (now deceased)
came on his camel-cart and started going through the field of Mst.
Bhanwari Devi, which was objected to by her husband and Kheta
Ram.
5.2.1. When the family member of Mst. Bhanwari Devi did not let
him Gopiram go through their field, he climbed the nearby
Teebada and called out to his family members.
4.2.1. On such calling, his (Gopiram's) father i.e. accused-
appellant (now deceased) who was having Jei, his mother and
sister, who were also carrying Jei, reached the place (field of
Mst.Bhanwari Devi).
5.2.2. On their arrival, the accused-appellant (now deceased)
started abusing the complainant party. The accused-appellant
(now deceased) inflicted a blow on the head of the husband of
Mst. Bhanwari Devi with the use of Jei, due to which she fell on
the ground; however, the accused-appellant (now deceased) and
his son Gopiram continued to inflict blows. The said act, upon
being intervened by the brother-in-law (Khetaram) of Mst.
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Bhanwari Devi, he was also subjected to beating by the family
member(s) of the accused-appellant (now deceased); as a result
of the said act, the complainant party sustained injuries.
Thereupon, the members of the complainant party raised alarm by
shouting, and Bhadar ram, Shankar Lal and Suganaram came to
their rescue and on seeing the said three persons, the members of
the accused party left the injured members of the complainant
party and fled from the place of the incident.
5.2.3. As a result of the said act of the accused party, the
husband of Mst. Bhanwari Devi died on the spot and his dead body
was lying at the place of incident, while Mst. Bhanwari Devi and
son of her brother-in-law (Khetaram) sustained grievous injuries.
They were taken to hospital in a jeep by her brother-in-law i.e.
Suganaram.
5.3. On the basis of the aforesaid statement, a case was
registered by the police and the investigation commenced. After
investigation, a charge-sheet was filed against the accused-
appellants under Sections 302/34, 325/34, 323/34, 447 read with
Section 34 IPC and Section 3(1)(8)(10) of the Scheduled Castese
and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(hereinafter referred to as 'Act of 1989').
5.4. The accused-appellants were charged under Section 447,
302 IPC (in alternative under Section 302 read with Section 34
IPC), 325, 325/34 & 323 IPC (in alternative under Section 323
read with Section 34 IPC) and Sections 3(1)(2)(5) of the Act of
1989. The accused-appellants denied the charge and sought trial.
During trial, on behalf of the prosecution, 11 witnesses were
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produced for examination and 33 documents were exhibited for
examination; in defence, one document was produced and no
witness was produced on behalf of the accused-appellants. The
accused-appellants denied the statements rendered against them
by the prosecution witnesses and pleaded their false implication in
the criminal case. After conclusion of the trial, the learned Trial
Court convicted and sentenced the accused-appellants, vide the
impugned judgment of conviction and order of sentence, as
above.
6. Learned counsel for the accused-appellant submitted that
PW.1-Bhanwari Devi and PW.2-Khetaram both were eye-witnesses,
and as per their testimonies, no specific role in commission of the
crime in question is attributable to the accused-appellant. It was
further submitted that in their testimonies, the said witnesses also
did not depose anything which could specifically establish that the
accused-appellant caused any injury to the deceased.
6.1. It was also submitted that there is no evidence on record
with regard to the alleged common intention, because the entire
incident had happened suddenly, nor any pre-planning was there
so as to cause murder of the deceased on the part of the accused-
appellant in collusion with others, and therefore, she cannot be
prosecuted under Section 302 IPC on the ground of the alleged
common intention.
6.2. It was further submitted that the concerned police authority
recovered the Jayee (weapon) on the basis of the information
given by the accused-appellant (now deceased) as stated by PW.-
10- Inder Kumar Vyas (I.O.), and therefore, it is clear that the
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accused-appellant-Dhapu was not involved in commission of the
crime in question.
6.3. It was also submitted that the accused-appellant is a 70
years old lady and she was on bail during trial, in pursuance of her
sentence being suspended by this Hon'ble Court vide order dated
02.04.1996.
7. On the other hand, the learned Public Prosecutor, opposed
the aforesaid submissions made on behalf of the accused-
appellant, while submitting that accused-appellant caused the
death of the deceased, and the said prosecution version was fully
supported by the eye witnesses without a single contradiction.
7.1. It was further submitted that the accused-appellant caused a
total of 20 injuries to the deceased, which were sufficient to cause
his death. It was also submitted that as per PW.1-Bhanwari Devi
and PW.2-Khetaram, who intervened during the fight, had also
sustained injuries, during such intervention, and also stated that
the same were caused by the accused-appellant.
7.2. It was further submitted that the accused-appellants were
having common intention to cause the death of the deceased, and
therefore, the learned Trial Court had rightly passed the impugned
judgment of conviction.
8. Heard learned counsel for the parties as well as perused the
record of the case.
9. This Court observes that the concerned police authority had
recorded the statement (Parcha Bayan-Ex.P/1) of PW.1,
whereafter, FIR (Ex.P.12) was registered and the charge-sheet was
filed under Sections 302, 325, 323, 447 IPC along with Section 34
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IPC and Section 3 (2),(5) of the Act of 1989. After conclusion of
the trial, the learned Trial Court had passed the impugned
judgment whereby though under certain provisions of law, as
aforementioned, conviction of the accused-appellants was made,
but they were acquitted under Section 3 (2),(5) SC/ST Act.
10. This Court further observes that the two eye-witnesses to
the incident in question i.e. PW.1-Bhanwari Devi (wife of the
deceased) and PW.2-Khetaram (nephew of the deceased) stated
that the accused-appellant's son Gopiram came on a bullock Cart
(Belgadi) in their field, which was objected by the deceased while
stating that there was no path way for the said bullock cart
(Belgadi) to run through the field, upon which Gopiram shouted
and called his family including the accused-appellant, whereafter
the accused-appellant (now deceased) came with a Jei and also
other accused along with surviving accused-appellant came with
Chosangi, and the accused-appellant-Bhanwara Ram attacked on
the deceased's head as a result whereof, he fell down on the
ground, but even after the same he was subjected to beating by
the accused-appellants.
11. This Court also observes that from the testimonies of the
eye-witnesses, it is clear that there occurred a sudden fight
between deceased's family and accused's family with regard to
dispute pertaining to the way in the field. Both the eye witnesses
i.e. PW.1 & PW.2 stated that the accused-appellant-Bhanwara Ram
attacked on the deceased's head; the specific allegation is only
against the accused-appellant (now deceased) and nothing
specific is on record there as against the surviving accused-
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appellant, as to which specific injury has been caused by her and
on which part of the deceased's body, which has resulted into his
death.
12. This Court, in view of the above observation, finds that there
was no pre-planning on the part of the surviving accused-
appellant pertaining to commission of the crime in question; even
the Jei and Chosangi, which were being carried by the surviving
accused-appellant were not weapons, but are regular tools, which
are used for agricultural purposes and the same were not
recovered by the concerned police authority, and therefore, in the
entire incident in question, the intention, on the part of the
surviving accused-appellant, is clearly missing.
13. This Court also observes that the son (Gopi Ram) of the
surviving accused-appellant, upon arriving at the field of the
deceased, shouted in distress, whereupon the surviving accused-
appellant reached the field of the deceased immediately, without
any pre-meditation or pre-planning, which clear reflects that there
was no common intention or common object on the part of the
surviving accused-appellant to cause murder of the deceased.
13.1. Thus, looking into the fact that in commission of the crime
in question, prime role has been attributed to the accused-
appellant (now deceased), which is not so in the case of the
surviving accused-appellant, and therefore, the adjudication qua
the surviving accused-appellant has to be made independent from
that of the accused-appellant (now deceased).
14. This Court also observes that the concerned police authority
recovered the Jei on the basis of the information given under
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Section 27 of the Indian Evidence Act, 1872 by the accused-
appellant (now deceased), but no recovery was made from the
surviving accused-appellant.
15. This Court further observes that as per the aforesaid
testimonies of eye witnesses PW.1 & PW.2 as well as other
evidence on record, the surviving accused-appellant was having
no intention to cause the death of the deceased and no specific
role in commission of the crime in question was attributed to her,
and therefore, the learned Trial Court was not justified in law to
convict the surviving accused-appellant vide the impugned
judgment.
16. This Court also observes that when the judgment of
conviction is challenged before the Appellate Court, a proper
appreciation of the evidence recorded by the learned Trial Court
has to be made. The power of the Appellate Court is provided
under Section 386 of Cr.PC, which reads as under:-
(b) in an appeal from a conviction--
(i) reverse the finding and sentence and acquit or discharge the
accused, or order him to be re-tried by a Court of competent
jurisdiction subordinate to such Appellate Court or committed
for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the
extent, or the nature and extent, of the sentence, but not so as
to enhance the same--
17. Now, as regards, the scope of interference in the judgment
of conviction passed by the learned Trial Court, it is considered
appropriate to reproduce the relevant portion of the judgment
rendered by the Hon'ble Apex Court in case of Kamlesh
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Prabhudas Tanna v. State of Gujarat, (2013) 15 SCC 263, as
hereunder:-
......
10. In Rama v. State of Rajasthan [(2002) 4 SCC 571:
2002 SCC (Cri) 829], the Court has stated about the duty of the appellate court in the following terms: (SCC p. 572, para 4 "4. ... It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law." ......
12. Recently, a three-Judge Bench in Majjal v. State of Haryana [(2013) 6 SCC 798] has ruled thus: (SCC p. 800, para 7) "7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter."
18. This Court also observes that there are reliable and cogent evidence on record that the accused-appellant's conviction deserves to be reversed, from conviction to acquittal, as provided (Downloaded on 02/08/2024 at 10:04:28 PM) [2024:RJ-JD:30662-DB] (11 of 11) [CRLA-210/1996] under Section 386(b)(i) of Cr.P.C "reverse the finding and sentence and acquit".
19. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case, as well as in view of the aforementioned precedent laws, the present appeal is allowed.
Accordingly, while quashing and setting aside the impugned judgment of conviction and order of sentence dated 22.03.1996 passed by the learned Session Judge, Churu, in Sessions Case No.25/1994 (State of Rajasthan Vs. Bhawara Ram & Ors.), qua the surviving accused-appellant Mst. Dhapa, the surviving accused-appellant is acquitted of the offence under Sections 302/34, 325/34, 323 and 447 IPC. The surviving accused- appellant was granted bail, vide order dated 02.04.1996 passed by a Coordinate Bench of this Hon'ble Court, whereby the sentence as awarded to her vide the impugned judgment was suspended. Her bail bonds stand discharged. 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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