Rajasthan High Court - Jodhpur
Mahipal vs State & Ors on 3 February, 2017
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 616 / 2011
1. Jeevraj Singh S/o Sh. Ranjeet Singh
2. Indra Singh S/o Shri Sawai Singh
3. Sarjeet Singh S/o Bhanwar Singh
4. Bhawani Singh S/o Sh. Gopal Singh
All by caste Rajput R/o Village Thathawatan, Tehsil
Ratangarh, District Churu (Raj)
[presently lodged in Central Jail, Bikaner]
----Appellant
Versus
State of Rajasthan
----Respondent
Connected With
D.B.CRIMINAL APPEAL No. 1012 / 2011
Mahipal son of Sh. Ram Lal, by caste Jat, resident of village
Thathawata, Tehsil Rajgarh, District Churu
----Appellant
Versus
State of Rajasthan
1. Parwat Singh son of Gopal Singh
2. Mool Singh son of Durjan Singh
3. Ravindra Singh son of Sanwant Singh
No.2 to 4 all by caste Rajput, residents of village
Thathawata, Tehsil Rajgarh, District Churu
(2 of 22)
[CRLA-616/2011]
----Respondent
_____________________________________________________
Mr. M.S. Garg, for the appellant Bhawani Singh and Mr. Mahaveer
Bishnoi for the appellants Inder Singh and Jeevraj Singh and Mr.
Dhirendra Singh for the appellant Sarjeet Singh in DB Cr. Appeal
No.616/2011
Mr. M.K. Garg, for the respondents nos.2 to 4 in D.B. Cr. Appeal
No.1012/2011
Mr. Vishnu Kachhawa, PP
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE KAILASH CHANDRA SHARMA Judgment 03/02/2017 Per Hon'ble Mr. Justice Gopal Krishan Vyas:
The above D.B. Cr. Appeal NO.616/2011 has been filed by the accused appellant Jeevraj Singh, Indra Singh, Sarjeet Singh and Bhawani Singh under Section 374(2) of Cr.P.C. against the judgment dated 16.7.2011 passed by the learned Addl. Sessions Judge, Ratangarh, District Churu in Sessions Case No.8/2009 whereby the accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh were convicted for the offence under Section 302 read with Section 120B IPC and accused appellant Bhawani Singh was convicted for the offence under Section 302 and 120B IPC and following sentence was passed against them:
Appellants nos.1 to 3 i.e., accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh for the offence punisblae under Section 120B read with 302 IPC: imprisonment of life and fine of Rs.1,000/- and in default of payment of fine to further undergo three months simple imprisonment.
(3 of 22) [CRLA-616/2011] Appellant No.4 i.e., accused appellant Bhawani Singh punishable under Section 120-B/302 IPC: imprisonment of life and fine of Rs.1,000/- and in default of payment of fine to further undergo three months simple imprisonment. Appellant No.4 i.e., accused appellant Bhawani Singh punishable under Section 302 IPC: imprisonment of life and fine of Rs.1,000/- and in default of payment of fine to further undergo three months simple imprisonment. [all the sentences of accused appellant Bhawani Singh were ordered to run concurrently].
D.B. Cr. Appeal No. 1012/2011 has been filed by the complainant Maipal against Parwat Singh, Mool Singh and Ravindra Singh who were acquitted by the learned Addl. Sessions Judge, Ratangarh, District Churu in Sessions Case No.8/2009 for the offences under Section 120B, 148, 302, 302/149 IPC.
As per facts of the case, on 27.6.2009 at about 10.00 pm, the SHO Police Station Ratangarh, District Churu received a telephonic message from the Government Hospital, Ratangarh that one Manoj Jat came to the hospital in injured condition and it is suspected that it is a case of murder. Upon receiving aforesaid information, the SHO Police Station, Ratangarh alongwith other police officials reached at Government Hospital, Ratangarh where the parents of the deceased were making quarrel to arrest accused persons and after intervening the complainant PW--1 Mahipal submitted a written report (Ex.P/1) to the SHO Police Station, Ratangarh, District Churu. In the report it is alleged that on 27.6.2009 at 9.30 pm, he was standing in front of shop of one Chhagan Lal Nai, at that time, heard hue and cry from the house (4 of 22) [CRLA-616/2011] of Moolchand Nayak on which the complainant immediately went there and saw that accused persons in connivance with each other were beating my brother Manoj Jat by Lathi, knife and kick. The complainant tried to intervene but accused persons made quarrel with him also, at that time, Goru Ram and Mani Ram came there and intervened. As per allegation of the complainant, all the accused gave beating to the deceased Manoj Kumar with an intention to kill him and due to the said injuries his brother Manoj Jat died. In complaint (Ex.P/1) following allegations were levelled by the complainant, which reads as under:
**lsok esa Jheku Fkkf/kdkjh egksn;] iqfyl Fkkuk jrux<+ fo'k; & eqdnek ntZ djokus ckcrA Jheku th] fnukad 27-6-2009 dks jkf= ds djhc 9-30 cts eSa xqokM+ esa Nxuyky ukbZ dh nqdku ds vkxs [kM+k FkkA rHkh ewypUn ukbZd ds ?kj ds vkxs "kksj lqukbZ fn;k rks eSa Hkkxdj ogka x;k ogka ioZr flag S/o jkeflag] ewy flag S/o nqtZu flag] Hkokuh flag S/o xksiky flag] xksfoUn flag S/o eksgu flag] ujirflag S/o ctjax flag] jfoUnz flag] ftrsUnz flag S/o lkaor flag] nyir flag S/o thojkt flag] ioZr flag S/o xksiky flag tkfr jktiwr fuoklhx.k BBork us ,oa vU; us esjs HkkbZ eukst dqekj dks tehu ij iVdj j[kk Fkk vkSj ykfB;ks]a pkdqvksa o Bksdjks ls ekj jgs FksA eSaus chp cpko djus dh dksf"k dh rks bu yksxksa us esjs lkFk Hkh /kDdk erqDdh dh rHkh xks:jke iq= ewykjke tkV o euhjke iq= iks[kjjke tkV Hkkxdj vk;s vkSj mUgksus chp cpko djds NqM+k;kA bu yksxks us esjs HkkbZ dks tku ls ekjus dh fu;r ls geyk fd;k Fkk vkSj esjs HkkbZ ds isV] Nkrh] xky] lhj esa pkdqvksa ls pksVs igqapkbZ vkSj gkFkks&iSjksa o iqjs "kjhj ij ykfB;ksa o Bksdjksa dh pksVsa ekjhA ftlls esjs HkkbZ eukst dqekj dh ekSds ij gh e~R;q gks xbZA ;g yksx esjs HkkbZ ls jktuSfrd }s'krk j[krs FksA vkSj bl dkj.k ls igys Hkh ioZu flag S/o jkeflag] Hkokuh flag S/o xksiky flag] xksfoUn flag S/o eksgu flag] tkfr jktiwr fuoklh BBkork us 24-6-09 dks esjs HkkbZ eukst dqekj dks ihV fn;kA mijksDr ukS O;fDr;ksa o vU; us ,d jk; gksdj vkSj ykfB;ksa pkdqvksa ls ySl gksdj o Hkokuh flag us cksry ls bu lHkh us tku ls ekj nsus ds mn~n"s ; ls geyk (5 of 22) [CRLA-616/2011] fd;k o esjs HkkbZ dh gR;k ¼e`R;q½ dj nhA vc esjs HkkbZ eukst dqekj dk "ko ysdj jktdh; fpfdRlky; jrux< ysdj vk;k gqaA Jheku th dks fjiksVZ nsrk gwa eqdnek ntZ dj dk;Zokgh djsA Sd/-
izkFkhZ efgiky iq= jkeyky fuoklh BBkork r- jrux<+ ¼pq:½ Upon aforesaid complaint (Ex.P/1) formal FIR no.156 was registered at Police Station Ratangarh on 28.6.2009, which is on record as Ex.P/2. The FIR was registered against 9 named and some other unknown persons for the offences under Sections 147, 148, 302, 341 read with Section 149 and 120B IPC. After registration of the FIR, thorough investigation was conducted by the investigating agency and charge-sheet was filed against seven accused persons including appellants in the court of ACJM, Ratangarh from where case was committed for trial to the court of learned Addl. Sessions Judge, Ratangarh, District Churu. The police filed another charge-sheet under Section 147, 148, 302, 341, 149 and 120B IPC against five juveniles, Parwat Singh, Ram Singh, Govind Singh, Jitendra Singh, Dalpat Singh and Narpat Singh before the Juvenile Justice Board.
The learned trial court after providing an opportunity of hearing framed charge against seven accused persons under Section 120B, 148, 302/149 IPC and commenced trial.
In the trial, statements of 11 prosecution witnesses were (6 of 22) [CRLA-616/2011] recorded and thereafter, statements of all accused persons were recorded under Section 313 Cr.P.C. in which they denied all the allegations levelled by the prosecution witnesses and produced three witnesses namely DW-1 Hanuman Singh, DW-2 Prabhu Singh and DW-3 Bhagwan Singh in defence.
The learned trial court finally heard arguments of both the sides and after assessing the entire evidence produced by the prosecution as well as by the defence acquitted the accused Parwat Singh, Mool Singh and Ravindra Singh from the charges levelled against them but convicted the accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh for committing offence under Section 120B read with Section 302 IPC, but acquitted them from the charges levelled against them for the offences under Section 148, 302 or 302/149 IPC whereas held accused appellant Bhawani Singh guilty for the offence under Section 302 and 120B IPC individually but acquitted him from the charges under Section 148 and 302/149 IPC and passed the sentence mentioned above.
It is also one of the important fact that against other accused namely Parbat Singh S/o Ram Singh, Govind Singh, Jitendra Singh, Dalpat Singh and Narpat Singh charge-sheet was filed before the Juvenile Justice Board for the offences under Sections 302, 148 and 149 IPC.
Learned counsel for the appellant vehemently argued that upon perusal of the FIR it will reveal that names of accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh does not appear, however, allegations were levelled against accused (7 of 22) [CRLA-616/2011] appellant Bhawani Singh and other co-accused persons for assaulting the deceased Manoj Jat by deadly weapons. According to the learned counsel for the appellants except accused appellant Bhawani Singh, all the three appellants have been convicted only on the basis of recovery of mobile phone by which some conversations were made by them with the accused before commission of offence, no other evidence is available on record to connect them with the crime, therefore, their conviction is totally based upon presumption.
Learned counsel for the appellants submits that as per the finding of the learned trial court in the impugned judgment accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh committed an offence alongwith main accused persons because as per call detail of their mobile obtained through PW--6 Bhagwan Singh who was working as Computer Operator in the Police Station Ratangarh all the three appellants made call to the each other and other accused, who participated in the incident, but there is no evidence on record with regard to ownership of the mobile nos. 9799183238, 9982477299 and 9460440065 recovered upon their informations, so also no investigation was conducted by the investigating officer PW--11 Chandra Prakash Pareek so as to ascertain the ownership of above mobile, but only on the basis of recovery of mobile from them, all the three appellants are implicated with the crime. It is also argued that there is no evidence of motive on record nor any whisper about criminal antecedents except vague allegations of PW--1 Mahipal (8 of 22) [CRLA-616/2011] with regard to the incident took place on 24.6.2009, therefore, it is obvious from the fact that accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh have been implicated in this case, without any evidence only on the basis of recovery of mobile. In view of above arguments, it is prayed that conviction and sentence passed against them may kindly be quashed.
With regard to accused appellant Bhawani Singh it is submitted that in the written FIR (Ex.P/1) the allegations were made against 9 named persons and some more unknown persons but no specific allegation was levelled against accused appellant Bhawani Singh for inflicting injury by bottle of glass at particular place of body. The only assertion is that accused appellant Bhawani Singh inflicted injuries by glass bottle but in the statement recorded during trial, the author of the FIR who is said to be eye witness improved his statement and made specific allegation, therefore, obviously it is a case in which evidence of motive is absent. No documentary or oral evidence with regard to previous incident has been submitted.
While inviting attention towards the statement of PW--1 Mahipal it is submitted that in cross-examination he was confronted from statement recorded under Section 161 Cr.P.C. and the allegations made by him in complaint (Ex.P/1). In reply to the questions put to him it is stated that all the allegations were levelled by him where brought to the notice of investigating officer but why it has not been recorded in the statement, I don't know. Meaning thereby, the conviction of the accused appellant Bhawani (9 of 22) [CRLA-616/2011] Singh for offence under Section 302 and 120B IPC is not sustainable in law because the said sole eye witness Mahipal completely improved his statement during trial without any evidence of motive.
Learned counsel for the appellants vehemently argued that there is no evidence of motive except some assertion that due to political rivalry Parbat Singh, Bhawani Singh and Govind Singh assaulted the deceased on 24.6.2009, but no evidence is produced with regard to the said incident, therefore, the fact with regard to motive is not sustainable in law. Learned counsel for the appellants further submits that three accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh were implicated in this case only on the basis of recovery of mobile and there is no allegation of motive against them nor any evidence is on record that they are owner of the recovered mobile. Further, no investigation was conducted by the investigating officer as to how accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh were connected with the all other accused and incident in which deceased Manoj Jat died, therefore, their conviction for commission of offence under Section 302 read with Section 120B IPC may kindly be quashed.
With regard to the case of accused appellant Bhawani Singh it is submitted that in absence of any evidence of motive it cannot be said that prosecution has proved its case for commission of offence under Section 302 IPC. In the FIR there is no specific allegation for inflicting any particular injury to the deceased by (10 of 22) [CRLA-616/2011] the glass bottle, but in the statement of complainant recorded during the trial as PW--1 specific allegations were levelled by him for inflicting injuries to the deceased on stomach.
In the statement during trial, the witness PW--1 Mahipal completely improved his statement and made specific allegation against accused appellant Bhawani Singh for inflicting injuries by glass bottle but that bottle was recovered from the site and not upon information given by the accused appellant Bhawani Singh under Section 27 of the Evidence Act, therefore, even if, the allegation of prosecution is accepted against the accused appellant Bhawani Singh, then also it is not a case in which accused appellant Bhawani Singh can be convicted for offence under Section 302 IPC. More so, the offence cannot travel beyond offence under Section 304 Part I IPC, therefore, it is prayed that accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh may kindly be acquitted from the charges levelled against them and conviction of the accused appellant Bhawani Singh may kindly be altered from offence under Section 302 IPC to offence under Section 304 Part I IPC and the sentence of life imprisonment may be reduced to already undergone.
Per contra, learned Public Prosecutor as well as learned counsel for the complainant argued that right from the beginning there was intention of the accused appellant Bhawani Singh and other accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh who were acquitted from the charges levelled against them by the learned trial court to kill his brother deceased Majoj Jat (11 of 22) [CRLA-616/2011] because three days before some quarrel took place due to political rivalry, they assaulted deceased Manoj Jat, which resulted into death.
Learned counsel for the complainant submits that the learned trial court has committed a grave error while acquitting Parwat Singh, Mool Singh and Ravindra Singh also, therefore, the appeal filed by the complainant deserves acceptance. With regard to finding recorded by the learned trial court for conviction of accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh it is submitted that there is no error in the finding recorded by the learned trial court because not only eye witness PW--1 Mahipal but other witnesses categorically proved the incident in which injuries were inflicted by the accused appellants to the deceased which resulted into death. It is also argued that against five other accused persons, namely, Parbat Singh S/o Ram Singh, Govind Singh, Jitendra Singh, Dalpat Singh and Narpat Singh charge-sheet has been filed before the Juvenile Justice Board for the offences under Sections 302, 148 and 149 IPC. Out of five persons against whom, charge-sheet was filed before the Juvenile Justice Board, the knife and blood stained cloths of Narpat Singh were recovered and they are facing trial in Juvenile Justice Board, therefore, it is a case in which the learned trial court has committed an error to acquit the respondents nos.2 to 4 of D.B. Cr. Appeal NO.1012/2011 and rightly held accused appellant Bhawani Singh guilty for offence under Section 302 and 120B IPC guilty independently.
(12 of 22) [CRLA-616/2011] Learned Public Prosecutor submits that finding of the learned trial court with regard to conviction against the accused appellants does not require any interference because the entire case is based upon testimony of eye witness PW--1 Mahipal who has categorically made allegations against the accused appellants, therefore, the appeal filed by the accused appellants may kindly be dismissed.
After hearing learned counsel for the parties, it emerges from the facts and evidence on record that to prove the prosecution case, in all statements of 11 prosecution witnesses were recorded by the learned trial court.
The PW--1 Mahipal is author of FIR and he is said to be eye witness.
PW--2 Brijlal is the witness to prove the motive but upon perusal of his statement it cannot be said that his testimony can be accepted for the purpose of ascertain the fact of motive for commission of offence. The said witness has proved arrest memo of the accused appellants.
PW--3 Shishpal is the motbir witness before whom the simple soil and blood stained soil was taken from spot vide Ex.P/9 and P/10. Some pieces of glass were also recovered from the place of occurrence vide Ex.P/11. One pair of sleeper was recovered vide Ex.P/12. The site plan (Ex.P/3) was also prepared in front of him.
The witness PW--4 Goru Ram is produced before the court as eye witness but upon perusal of written FIR (Ex.P/1) it is (13 of 22) [CRLA-616/2011] specifically stated by the witness PW--1 Mahipal that after inflicting injuries to deceased Manoj Jat witness Goru Ram and Mani Ram came on spot. Meaning thereby, he was not eye witness of the incident but prosecution produced PW--4 Goru Ram was eye witness so as to prove the case.
PW--5 Rajendra Saharan was working as Food Constable at Police Station Ratangarh. He has deposited the articles to the FSL for examination.
PW--6 Shiv Bhagwan was working as constable at Police Station Ratangarh. The said witness gave following statements, which reads as under:
**eSa fnukad 28-6-09 dks eSa ,Qlh ds in ij ih,l jrux< esa inLFkkfir FkkA eSa Fkkus esa dEI;wVj vkWijsVj FkkA fnukad 28-06-209 dks bl eqdnek esa ,l ,p vks jrux<+ us eq>s eqyfte ujir flag] bUnz flag] ljthr flag ds eksckbZy uEcj 9799183238] 9982477299] 9460440065 dh dkWy fMVsy gkfly djus ds fy, funsZ"k fn,] ftl ij eSaus funsZ"kkuqlkj mDr uEcjksa dh dkWy fMVsy djus ds fy, Jheku ,l ih lkgc pq: dks bZ&esy fd;k] ftl ij mDr uEcjksa dh dkWy fMVsy ,l ih dk;kZy; pq: ls ,l,pvks ih,l jrux<+ ds b&esy vkbZ -Mh- ij Hksth] ftls eSaus fudky djewy Jheku ,l,pvksa lkgc dks izLrqr dhA dkWy fMVsy eksckbZy ujir flag uEcj 9799183238 tks fnukad 20-06-2009 ls 1-7-2009 rd d gS] izn"kZ ih-24 gS] tks Ng i`'B esa gSA ljthr flag ds eksckbZy uEcj 9982477299 izn"kZ ih- 25 gS] tks nks ist esa gSA bUnzflag ds eksckbZy uEcj 9660440665 izn"kZ ih-26 gS] tks nl ist esa gSA ftjg }kjk eqyfteku ds ;ksX; vf/koDrk & eSaus tks dkWy fMVsy fudkys Fks] mu ls ;g irk ugha iM+rk fd bu nksuksa ekscbZyksa ds chp D;k ckr gqbZ Fkh] dsoy bruk irk pyrk gS fd buds e/; ckr gqbZ FkhA rhuksa eqyftekuksa dk okW;l VsLV ugha djok;kA iqu% ijh{k.k & "kwU;** Upon perusal of above statements, it cannot be said that on the basis of such statement of this witness accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh can be held guilty (14 of 22) [CRLA-616/2011] for offence under Section 120B read with Section 302 IPC.
PW--7 Mani Ram is also alleged to be eye witness of the incident. Mani Ram and Goru Ram categorically stated in their statements that on 24.6.2009 the occurrence took place in which Bhawani Singh, Parbat Singh S/o Ram Singh and Govind Singh assaulted Manoj Jat for which FIR was registered in which compromise was arrived at between the parties, but it is very strange that no FIR is on record or filed by the prosecution to prove the said motive. Therefore, even if the testimony of PW--7 Mani Ram and PW--4 Goru Ram is accepted then also it cannot be said that prosecution has proved the motive for commission of offence under Section 302 and 120B IPC by the accused appellant Bhawani Singh.
PW--8 Gopal Singh was working as Head Constable at Police Station Ratangarh. He was incharge of Malkhana where the articls were deposited.
PW--9 Dr. Ravindra Kadel was working as medical jurist of Government Hospital and was one of the member of the medical board who performed the post mortem of the body of the deceased. In the post mortem report, the board gave its opinion that cause of death was hemorrhage due to shock caused due to multiple injuries nos. 7,8,9, 10 and 11.
PW--10 Ratan Lal is the witness of recovery of mobile and cloths vide Ex.P/29 and P/30. He is not eye witness of the incident.
PW--11 Chandra Prakash Pareek is the investigating officer.
(15 of 22) [CRLA-616/2011] Upon perusal of his statement, it will reveal that it is nowhere stated by him that any documentary evidence came on record to prove the motive and with regard to call details of mobile numbers of accused appellant Jeevraj. It is state by him that :
**;g lgh gS fd nksuksa ?kjksa ls tc eksckbZy cjken fd, rc muds rkys yxs gq, ugha Fks] vkSj ifjokj ds vU; lnL; Hkh mu dejks esa vk ldrk FkkA izn"kZ ih-24 ls ih-26 dk izekf.kdj.k fdlh us ugha fd;k gS] ;s dkWy fMVsy dEI;wVj ls fudkyh gqbZ gSA eSaus fdlh dkWy dk okW;l VsLV ugha djok;k gSA** Upon perusal of the above evidence, we are of the opinion that finding of guilt recorded against the accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh on the basis of recovery of mobile and call details do not connect them with the alleged crime because without reliable evidence of motive and participation of accused the conviction for commission of offence under Section 302 read with Section 120B IPC is not sustainable in law.
We have considered the argument of learned counsel for the appellants that in absence of any evidence of motive and allegation of prosecution that more than 9 persons caused injuries to the deceased, it cannot be said that accused appellant Bhawani Singh is guilty for offence under Section 302 and 120B IPC individually. It is admitted fact that learned trial court acquitted all accused appellants from offence under Section 302 read with Section 149 IPC because there is no evidence of motive on record, finding given by the learned trial court there is no evidence for participation of the respondents nos.2 to 4 (Parwat Singh, Mool (16 of 22) [CRLA-616/2011] Singh and Ravindra Singh ) of DB Cr. Appeal No.1012/2011 to connect them with the alleged crime, therefore prosecution has neither proved the case against the accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh nor against the respondents nos. 2 to 4 (Parwat Singh, Mool Singh and Ravindra Singh) of D. B. Cr. Appeal No. 1012/2011 to connect with the crime, therefore, accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh are entitled to be acquitted from the charges and the appeal of complainant against Parbat Singh, Mool Singh and Ravindra Singh deserves to be dismissed.
With regard to accused appellant Bhawani Singh it is submitted that even if statement of PW--1 Mahipal, author of the FIR and PW--4 Goru Ram and PW--7 Mani Ram are accepted then also in absence of any evidence of motive it cannot be said that prosecution has proved its case beyond reasonable doubt for offence under Section 302 and 120B IPC.
We are in full agreement with the arguments of the learned counsel for the appellants that even if the alleged incident is accepted as a whole then also it cannot be presumed that prosecution has proved its case against accused appellant Bhawani Singh for commission of offence under Section 302 read with Section 120B IPC because main ingredient of motive is absent in this case.
In the case of State of HP Vs. Ram Pal reported in (2006)
2 SCC (Cri.) 165, the Hon'ble Supreme Court, gave following (17 of 22) [CRLA-616/2011] finding upon the identical facts. The paras nos. 5 to 8 of the said judgment are as follows:
"5. Having perused the record for the limited purpose of finding the nature of offence, we see that it is clear from the evidence of PW- 3 himself that he and Jaiwant consumed liquor before going to the tea stall of the respondent herein to demand the money which was due to him and when they reached there the deceased went inside the tea stall and started quarreling with the accused persons. During the said quarrel it is stated that the deceased called the accused persons as "cheat" and "beiman" and the quarrel then spilled outside the stall at which point of time a stick that was carried by Choudhary Ram was snatched by PW- 3, in the process Choudhary Ram got injured and fell down. Here we must notice the case of the defence is that PW- 3 assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted PW- 3 first with a knife and then assaulted the deceased twice on his back.
6. On the facts of this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall of the accused. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW- 3. It is at that time the respondent stabbed PW--3 and the deceased. From the above facts stand proved are (a) the deceased went with PW- 3 to the shop of the accused; (b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW- 3 and the deceased; (d) injury was inflicted on the back of the deceased.
7. On the above facts we are of the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part I IPC. We are also in agreement with the finding of the High Court that sentence of over 4 years' RI suffered by the respondent meets the ends of justice.
8. For the reasons stated, this appeal fails hence dismissed."
(18 of 22) [CRLA-616/2011] In the case of Buddhu Singh Vs. State of Bihar (now Jharkhand) reported in 2011 Cr. L.R. (SC) page 519 the Hon'ble Supreme Court gave following verdict in paras nos. 6 to 9, which reads as under:
"6. Mr. Ajit Pandey, learned counsel appearing for the accused persons contended that firstly this was a case of single blow and the blow could not have been intended to be given on the head though it did land on the head. Mr. Pandey further argued that if the intention was to commit the murder, then the accused persons, more particularly accused Buddhu Singh would have repeated the assault which he actually and admittedly did not repeat.
7. Mr. Pandey further contended that once the injury was unintended, the offence could be converted into Section 304 Part II IPC from Section 302 IPC because the accused ought to have the knowledge that a single assault by an axe could result into the death of the deceased.
8. Mr. Manish Mohan, learned counsel appearing for the State supported the judgment and contended that the injury was serious enough and was on a very vital part i.e. head and resulted in the fracture of frontal bone and the death was almost instantaneous, though in the hospital.
9. Considering the overall material, we are of the view that there is hardly anything on record which can be said against the accused Ledwa Singh and Balchand Singh though the common intention on their part could be attributed since they had done the over act of grappling with and pinning down the deceased. Now, seeing his father and brother had been grappling with the deceased, the accused Buddhu Singh dealt an axe blow which could not be said to be intended towards the head. It could have landed anywhere. However, it landed on the head of the deceased. Therefore, the element of intention is ruled out. Again the defence raised on behalf of the accused that there could not have been the intention to commit the murder of the deceased is justified by the fact that the accused Buddhu Singh did not repeat the assault. Under the circumstances, we feel that the prosecution has been able to establish the guilt of the accused persons under Section 304 Part II I.P.C."
(19 of 22) [CRLA-616/2011] The Hon'ble Apex Court in the case of Arjun Vs. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506 held that if motive is absent and there was allegation of prosecution for inflicting one injury may be that too by force, then also no offence under Section 302 IPC is said to be made out because offence cannot travel beyond offence under Section 304 Part I IPC. The relevant para No.17 of the said judgment is quoted herein below for ready reference: -
"17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat and passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, we are of the view that this case falls under the forth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part I IPC and we do so."
On the basis of above discussion, we are of the firmed opinion that the finding of conviction recorded against the accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh on the basis of recovery of mobile and call details is not sufficient to hold them guilty for the offence because neither their names were mentioned in the FIR nor any evidence is on record with regard to motive, therefore, their conviction and sentence for offence under Section 302/120 IPC is not sustainable in law and they are entitled to be acquitted from the charges levelled against them.
With regard to finding recorded against the accused appellant Bhawani Singh for the offence under Section 302 and 120B IPC, we are of the opinion that in absence of any evidence of (20 of 22) [CRLA-616/2011] "motive" and upon the fact that complainant eye witness Mahipal has completely improved his statement during trial, therefore, we are of the opinion that accused appellant Bhawani Singh cannot be held guilty for offence under Section 302 or 120B IPC because neither any weapon was recovered from him, the alleged bottle which is said to be used by the accused Bhawani Singh to cause injury upon the stomach of deceased was recovered from the place of occurrence itself not upon information of the accused appellant Bhawani Singh. The knife was recovered from another juvenile accused Narpat Singh, therefore, the finding of conviction recorded against the accused appellant Bhawani Singh for the offene under Section 302 and 120B IPC is not sustainable and at the most it can be held guilty for offence under Section 304 Part I IPC.
On the basis of the above discussion, we are of the opinion that in absence of any evidence of motive, it cannot be said that offence under Section 302 read with Section 149 IPC is made out, the finding of the learned trial court for acquittal does not require any interference, therefore, there is no substance in the appeal (D.B. Cr. Appeal No.1012/2011) filed by the complainant against the respondents nos.2 to 4 (Parwat Singh, Mool Singh and Ravindra Singh) who were acquitted from the charges levelled against them by the learned trial court.
Consequently, the appeal No.616/2011 as filed by the accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh (21 of 22) [CRLA-616/2011] is hereby allowed and their conviction and sentence for the offence under Sections 302 read with Section 120B IPC passed by the learned Addl. Sessions Judge, Ratangarh District Churu vide judgment dated 16.7.2011 in Sessions Case No.8/2009 is hereby quashed and set aside; The accused appellants Jeevraj Singh, Indra Singh and Sarjeet Singh are already on bail, therefore, their bail bonds are hereby discharged The appeal no.616/2011 as filed by the accused appellant Bhawani Singh is hereby partly allowed and the conviction of and sentence of the accused appellant Bhawani Singh S/o Sh. Gopal Singh for the offence under Section 302 and 120B IC imposed by the learned trial court vide the same judgment is hereby altered to Section 304 Part I of IPC and the sentence of life imprisonment is hereby reduced to already undergone. The accused appellant Bhawani Singh is behind the bars since 4.7.2009, therefore, he may be released forthwith if not required in any other case;
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants of D.B. Cr. Appeal No.616/2011 are directed to forthwith furnish personal bonds in the sum of Rs.20,000/- each and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(22 of 22) [CRLA-616/2011] The appeal (D.B. Cr. Appeal No.1012/2011) as filed by the appellant complainant Mahipal against the acquittal of the respondents nos.2 to 4 (Parwat Singh, Mool Singh and Ravindra Singh) for the offences under Sections 120B, 148, 302 and 302/149 IPC is hereby dismissed.
(KAILASH CHANDRA SHARMA)J. (GOPAL KRISHAN VYAS)J. cpgoyal/ps