Rajasthan High Court - Jodhpur
Vachna vs State on 9 October, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:41435-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 418/2000
Vachna S/o Shankra, agedv 33 years, by caste Bheel R/o
Kheda,P.S. Modra, Distt. Jalore.
----Appellant
Versus
State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Suresh Kumbhat
For Respondent(s) : Mr. Rajesh Bhati,AGA
HON'BLE MR. JUSTICE FARJAND ALI
HON'BLE MR. JUSTICE ANUROOP SINGHI
Judgment
Reportable
Judgment Pronounced On : 09/10/2025
Judgment Reserved On : 30/07/2025
BY THE COURT:- (Per Hon'ble MR. FARJAND ALI,J.)
1. By way of filing this instant appeal under Section 374(ii) Cr.P.C., the appellant has assailed the judgment dated 10.07.2000 passed by learned Additional Sessions Judge, Bhinmal in Sessions Case No. 51/99 (18/98), whereby the appellant was convicted for the offence under Section 302 IPC and sentenced to life imprisonment with a fine of ₹100/-, and in default of payment of fine, to further undergo 15 days' simple imprisonment, and also convicted under Section 341 IPC and sentenced to one month's simple imprisonment, with both the sentences directed to run concurrently.
2. The prosecution case, in brief, is that on 16.11.1997, Bhura s/o Uka Bhil, resident of Borta, lodged a written report (Uploaded on 10/10/2025 at 10:58:33 AM) (Downloaded on 11/10/2025 at 12:24:01 AM) [2025:RJ-JD:41435-DB] (2 of 11) [CRLA-418/2000] (Exhibit P-10) at Police Station Modra while being at Modra Hospital. In the report, it was alleged that the complainant and his brother Bharatiya resided in separate households at Borata Bhawri but in close proximity. On 15.11.1997 at about 6:00 p.m., accused Vachna came to the house of Bharatiya and took him along. When Bharatiya did not return till about 9:00 p.m., the complainant went out in search of him. Near Jakrana Nala, the complainant heard cries of his brother and upon reaching the spot, saw that the accused persons Vachna, Kheta, and Himta had wrongfully restrained Bharatiya. It was alleged that accused Vachna struck a stone blow on the neck of Bharatiya, while Kheta and Himta assaulted him with fists and kicks. At that time, Mangia s/o Kesa Bhil along with the complainant intervened and rescued the injured.
2.1 The report further recited that a quarrel had earlier taken place between accused Vachna and deceased Bharatiya after Diwali, and owing to that enmity, accused Vachna, after consuming liquor, assaulted Bharatiya. The injured was taken home and later shifted to the hospital when conveyance was available. On the basis of the said report, an FIR was registered for the offences under Sections 341 and 323 IPC. During investigation, since the injured succumbed to his injuries, Section 302 IPC was also added. Upon completion of investigation, the Station House Officer, Police Station Modra, submitted a charge-sheet against the accused persons (Uploaded on 10/10/2025 at 10:58:33 AM) (Downloaded on 11/10/2025 at 12:24:01 AM) [2025:RJ-JD:41435-DB] (3 of 11) [CRLA-418/2000] before the Court of learned Additional Chief Judicial Magistrate, Bhinmal for the offences under Sections 341 and 302/34 IPC. The case was subsequently committed to the Court of Sessions under Section 209 Cr.P.C. 2.2 After hearing both sides, charges under Sections 302 and 341 IPC were framed against accused Vachna, and charges under Sections 302/34 and 341 IPC were framed against the co-accused Kheta and Himta. The accused denied the charges and claimed trial. The prosecution examined witnesses including Dr. K.K. Goswami (PW-1), Mod Singh (PW-2), Mangia (PW-3), Dr. B.L. Chauhan (PW-4), Dr. G.M. Solanki (PW-5), Bhura (PW-6), Keria (PW-7) and Dursadan (PW-8), besides producing documentary evidence. In their statements under Section 313 Cr.P.C., the accused denied the prosecution allegations and claimed false implication, asserting that no such assault was committed by them. In defence, witnesses Mahendra Singh, Bhanwar Singh, and Chhail Singh were examined.
2.3 Upon appreciation of evidence, the learned Additional Sessions Judge, Bhinmal convicted accused Vachna s/o Shankara Bhil under Sections 302 and 341 IPC and sentenced him to life imprisonment with fine, while co- accused Kheta and Himta were acquitted of the charge under Section 302/34 IPC but convicted under Sections 323 and 341 IPC and awarded appropriate sentences.
(Uploaded on 10/10/2025 at 10:58:33 AM) (Downloaded on 11/10/2025 at 12:24:01 AM) [2025:RJ-JD:41435-DB] (4 of 11) [CRLA-418/2000] 2.4 Aggrieved by the judgment and order of conviction and sentence dated 10.07.2000, the appellant-Vachna has preferred the instant appeal.
3. Heard learned counsels present for the parties and gone through the materials available on record.
4. Having given our anxious consideration to the rival submissions advanced at the Bar and having minutely scrutinized the ocular as well as medical evidence available on record, this Court proceeds to record its findings as follows:
5. At the very threshold, it is to be noticed that the prosecution version, as unfolded in the FIR (Ex. P-10) and reiterated by PW-6 Bhura (the complainant and real brother of the deceased), does not inspire implicit confidence. The FIR recites that 4-5 persons assaulted the deceased, whereas, upon investigation, the complicity of all other named persons was disbelieved and the charge-sheet eventually came to be filed only against the present appellant. This very divergence between the initial version and the final police report casts a cloud upon the unerring veracity of the FIR. Furthermore, PW-6 Bhura being the brother of the deceased is undeniably an interested witness and, as is evident from his deposition, he admitted that at the time of incident there was complete darkness and no source of light was available. He further conceded that he only rushed upon hearing cries. In such (Uploaded on 10/10/2025 at 10:58:33 AM) (Downloaded on 11/10/2025 at 12:24:01 AM) [2025:RJ-JD:41435-DB] (5 of 11) [CRLA-418/2000] circumstances, it becomes doubtful whether Bhura actually witnessed the assault being perpetrated or merely reached the spot moments after the occurrence. The Court cannot lose sight of this vital infirmity.
6. The evidence of PW-3 Mangiya, however, assumes greater significance. He is projected as an independent witness and, in his testimony, he gave a detailed narrative of the events on the fateful evening. He unequivocally deposed:
"दारू पीते समय हे मीया व भारतीया के बीच बोलवाल हुई थीं, फिर वसना भारतीया के पीछे दौड़ा को आगे जाकर भारतीया नीचे गिर गया तो भारतीया चिल्लाया तो मैं वहां गया और मैने हल्ला किया तो भूरिया वहाँ आया । वसना ने एक पत्थर भारतीया के गर्दन के पीछे मारा था, जो पत्थर बड़ा था । चोट मारकर वसना वहाँ से भाग गए ... वसना के अलावा खेतीया व हे मा ने भारतीया को थापा-मुक्कों से मारपीट की थीं।"
7. This testimony, if analyzed critically, reveals that the quarrel arose spontaneously under the influence of liquor. There is nothing to suggest that the appellant harbored any deep- rooted enmity against the deceased or that the assault was premeditated. Rather, discord, if at all, existed between Hemiya and Bharatiya, and significantly, Hemiya was not even chargesheeted. The sequence as narrated shows that after a verbal altercation during a drinking bout, the deceased tried to flee, fell down, and thereafter the appellant hurled a stone from behind which struck his cervical region. Co-accused allegedly inflicted fist and kick blows, but there is no medical corroboration of any external injuries attributable to such acts.
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8. Turning to the medical evidence, the post-mortem report (Ex. P-7) and the testimony of PW-1 Dr. K.K. Goswami, PW-4 Dr. B.L. Chauhan, and PW-5 Dr. G.M. Solanki are material. All the three medical experts consistently opined that there were no external or superficial injuries apparent on the person of the deceased except swelling and neurological deficit suggestive of paralysis. The internal dissection revealed dislocation of cervical vertebrae C6 and C7 with associated haematoma, which led to obstruction of respiration and ultimately caused death. Dr. Chauhan candidly admitted in cross-examination that such dislocation can even be caused by a fall on a hard surface. It is noteworthy that had the stone been hurled with force from a distance, some external laceration or contusion would certainly have been present. The absence of any visible mark of violence strongly militates against the hypothesis of a direct fatal assault by a heavy stone. Furthermore, the allegation of injuries being inflicted by kicks and fists does not find any corroboration and, in fact, stands in direct conflict with the medical as well as ocular evidence. The doctors have clearly stated that apart from cervical dislocation and haematoma on the outer surface, no other injury was noticed on the body. It is a well-known medical proposition that whenever cervical dislocation occurs, some swelling or haematoma is bound to appear on the external part corresponding to the site of trauma. Thus, even if the (Uploaded on 10/10/2025 at 10:58:33 AM) (Downloaded on 11/10/2025 at 12:24:01 AM) [2025:RJ-JD:41435-DB] (7 of 11) [CRLA-418/2000] prosecution evidence is accepted at face value, it does not unequivocally establish whether the cervical dislocation resulted from the impact of a stone or from a fall on a solid surface. This aspect assumes greater significance in light of the categorical admission of the medical expert that such dislocation could indeed be caused by a fall on hard ground.
9. Thus, when the ocular account is juxtaposed with the medical findings, a grey area emerges. The prosecution failed to establish with scientific certainty whether the dislocation was the direct result of the stone blow allegedly given by the appellant, or whether it was the consequence of the deceased having already fallen to the ground in an intoxicated state. The possibility that the injury resulted from the fall itself cannot be altogether excluded. This uncertainty goes to the root of the charge under Section 302 IPC, for it is trite that when two views are reasonably possible on the cause of death, the one favoring the accused must be adopted.
10. Another striking feature of the case is the conduct of the accused. Had there been any intention to cause homicidal death, nothing prevented the appellant and the others from inflicting repeated and graver injuries upon the deceased, especially when he was already in a fallen and vulnerable condition. Instead, the evidence indicates only a single blow with a stone, of which no superficial signs were (Uploaded on 10/10/2025 at 10:58:33 AM) (Downloaded on 11/10/2025 at 12:24:01 AM) [2025:RJ-JD:41435-DB] (8 of 11) [CRLA-418/2000] noticed by the board of doctors who conducted the autopsy . Such conduct is hardly consistent with a predetermined design to kill. The element of mens rea requisite for murder is conspicuously absent. At the most, the act can be characterized as a rash and reckless assault committed in the heat of a drunken brawl.
11. The so-called dying declaration (Ex. P-11) also does not advance the prosecution case. The Investigating Officer PW- 8 Dursadan conceded that he did not obtain any clinical fitness certificate from the doctor before recording the same. The thumb impression or signature of the injured was also not obtained owing to paralysis. In such circumstances, the authenticity of Ex. P-11 stands vitiated, and reliance thereupon would be wholly unsafe. At what point of time the statement was recorded by the officer not mentioned on Ex. P-11.
12. It is equally pertinent to note that though PW-7 Keria stated to have witnessed the assault, his version does not stand the test of cross-examination. His testimony suffers from embellishments and partisan coloring, thereby eroding its probative worth.
13. On a cumulative appreciation of the evidence, this Court is of the considered view that the prosecution has failed to prove the charge of murder against the appellant beyond reasonable doubt. The chain of circumstances does (Uploaded on 10/10/2025 at 10:58:33 AM) (Downloaded on 11/10/2025 at 12:24:01 AM) [2025:RJ-JD:41435-DB] (9 of 11) [CRLA-418/2000] not irresistibly point towards the guilt of the appellant under Section 302 IPC. However, the fact remains that the appellant did participate in the quarrel and did hurl a stone which, though not conclusively established to be the sole cause of death, certainly inflicted hurt upon the deceased. Similarly, the wrongful restraint of the deceased stands proved from the consistent testimony of the eye-witnesses, as the deceased wanted to go in a certain direction but was restrained to some extent.
14. Therefore, the conviction of the appellant under Section 302 IPC cannot be sustained. Nevertheless, the evidence unerringly establishes his culpability for voluntarily causing hurt within the meaning of Section 323 IPC and for wrongful restraint under Section 341 IPC.
15. Coming to the aspect of sentence, it is relevant that the appellant belongs to the marginalized Bhil community, is stated to be advanced in age now, and has already undergone incarceration of about 14 months during the trial and appeal. The incident is more than twenty-five years old, having occurred in November 1997. Keeping in view the efflux of time, the socio-economic background of the appellant, and the fact that the occurrence was not premeditated but arose out of a sudden drunken quarrel, this Court is persuaded to take a lenient view in the matter of sentence.
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16. In the considered opinion of this Court, having regard to the mitigating circumstances, including the age and socio- economic status of the appellant, the fact that he has already undergone part of the custodial sentence, and more particularly the principles enunciated by the Hon'ble Supreme Court in Haripada Das v. State of West Bengal, (1998) 9 SCC 678, and Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648, the ends of justice would be sufficiently met if the sentence of imprisonment is reduced to the period already undergone by the petitioner.
17. In the result, the appeal is partly allowed. The conviction of the appellant Vachna under Section 302 IPC is set aside. Instead, he is convicted under Sections 323 and 341 IPC. Having regard to the period of sentence already undergone, the appellant is sentenced to the period already undergone for the said offences.
18. Accordingly, The impugned judgment passed by learned Additional Sessions Judge, Bhinmal in Sessions Case No. 51/99 (18/98), is hereby set aside. The appellant stands acquitted of the charge under Section 302 IPC. As the appellant is already on bail, their bail bond is discharged.
19. However, in compliance with Section 437-A Cr.P.C., the appellant is directed to furnish a personal bond of ₹40,000/- along with one surety in the like amount before the trial court. The bond shall remain in force for six months to (Uploaded on 10/10/2025 at 10:58:33 AM) (Downloaded on 11/10/2025 at 12:24:01 AM) [2025:RJ-JD:41435-DB] (11 of 11) [CRLA-418/2000] ensure the appellant's presence before the Hon'ble Supreme Court in the event a Special Leave Petition is filed against this judgment and notice thereof is received. The record be transmitted back forthwith.
(ANUROOP SINGHI),J (FARJAND ALI),J
107-Mamta/-
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