Rajasthan High Court - Jodhpur
Bakhtawar Singh vs State Of Rajasthan on 24 May, 2024
Bench: Pushpendra Singh Bhati, Yogendra Kumar Purohit
[2024:RJ-JD:20981-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 305/1991
Bakhtawar Singh
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Mr. Jaswant Singh Bhati,
Amicus Curiae
For Respondent(s) : Mr. B.R. Bishnoi, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT Judgment Reportable Reserved on 09/05/2024 Pronounced on 24/05/2024 Per Dr. Pushpendra Singh Bhati, J:
1. This criminal appeal under Section 374 Cr.P.C. has been preferred claiming the following reliefs:
"Hence the accused petitioner preferred this appeal in this Hon'ble High Court and prays that the Judgement of the learned trial Judge of conviction and sentence may kindly be set-aside and appellant be acquitted and set at liberty."
2. The matter pertains to an incident which occurred in the year 1983 and the present appeal has been pending since the year 1991.
3. The accused-appellants laid a challenge to the judgment of conviction and order of sentence dated 10.09.1991 passed by the (Downloaded on 28/05/2024 at 08:37:31 PM) [2024:RJ-JD:20981-DB] (2 of 14) [CRLA-305/1991] learned Additional Sessions Judge No.1, Jodhpur, in Sessions Case 58/85 (State of Rajasthan Vs. Bakhtawarsingh), whereby the present accused-appellant has been convicted and sentenced as below:
Offence under Sentence Fine
Section
302 IPC Life imprisonment Rs.100/-, in default of which,
to undergo further one
month's S.I.
4. As the pleaded facts and the record would reveal, on 16.07.1983, complainant-Jethu Singh has submitted a written report (Ex.P-3) before Police Station, Sardarpura, Jodhpur stating therein that on 16.07.1983 at around 3:30 in the noon, while the complainant-Jethu Singh was standing at Bhaskar Circle (Chouraha), at that time, one Manohar Singh came to the complainant and informed him that Bakhtawar Singh (accused- appellant), who at the relevant time was serving as a Sepoy in the Railway Protection Force, inflicted Farsa blows 4-5 times on the head and neck of the complainant's brother, namely, Narayan Singh, as a result whereof, as per the said Manohar Singh, blood was oozing from the said parts of Narayan Singh; at the time of incident, as per the written information, the said Manohar Singh alongwith one Rajendra Singh and Manmohan were having tea just opposite the Loco Gate.
4.1. It was further stated in the written report that on seeing this, when at the relevant time, the said Manohar Singh alongwith others rushed to rescue the complainant's brother, Narayan Singh, the accused-appellant alongwith Farsa ran inside Loco. On being (Downloaded on 28/05/2024 at 08:37:31 PM) [2024:RJ-JD:20981-DB] (3 of 14) [CRLA-305/1991] so informed by Manohar Singh, the complainant immediately rushed towards Loco Running Shed, however, by that time, his brother was admitted in the hospital, and hence, the complainant also reached the said hospital, and saw his brother Narayan Singh in an unconscious state with head injury and blood oozing from the same.
4.2. On the basis of the aforesaid written report, the police registered a case under Sections 307 & 324 IPC, and the investigation accordingly commenced thereafter. However, since on the same date i.e. 16.07.1983 itself, Narayan Singh, succumbed to the injuries and died, therefore, the offence under Section 302 IPC was also added against the accused-appellant. After investigation, the police filed charge-sheet against the accused-appellant for the offence under Section 302 IPC before the competent court. Thereupon, the said competent court, committed the matter, owing to the case registered and investigated under the aforesaid provisions of law, committed the matter to the learned Trial Court.
5. The learned Trial Court framed the charge against accused- appellant for the offence under Section 302 IPC; the said charge were read over to the accused-appellant; the accused-appellant denied the same, and sought due trial, and the trial accordingly commenced thereafter before the learned Trial Court.
6. During the course of trial, the evidence of 18 prosecution witnesses were recorded and 17 documents were exhibited on behalf of the prosecution, whereas, the accused-appellants produced 06 witnesses and exhibited 13 documents in support of (Downloaded on 28/05/2024 at 08:37:31 PM) [2024:RJ-JD:20981-DB] (4 of 14) [CRLA-305/1991] defence; whereafter, the accused-appellant was examined under Section 313 Cr.P.C., in which the accused-appellant, while denying all the charges, pleaded innocence and their false implication in the criminal case in question.
7. Thereafter, upon hearing the contentions of both the parties as well as considering the material and evidence placed on record, the learned Trial Court, convicted and sentenced the accused- appellant, as above, vide the impugned judgment of conviction and order of sentence dated 10.09.1991, against which the present appeal has been preferred on behalf of the accused- appellant.
8. Learned counsel for the accused-appellant submitted that in the present case, complainant-Jethu Singh submitted a written information (EX.P/3), while Madan Lal (RPF Personnel, posted with the accused-appellant at loco gate) submitted a written information (Ex.P/9), prior to the written information that was lodged by the complainant-Jethu Singh. Learned counsel further submitted that Madan Lal in his written information stated that while he was posted at loco gate with the accused-appellant, the deceased came there and entered unlawfully into the said gate, whereupon, the accused-appellant stopped him, as a result whereof, fight broke between the two; later, the deceased came with a weapon and attacked the accused-appellant, resultantly, grave injury was caused to the accused-appellant, and therefore, the FIR was lodged under Sections 307, 353, and 332 IPC. In furtherance, a charge-sheet had been filed against Manohar Singh (Downloaded on 28/05/2024 at 08:37:31 PM) [2024:RJ-JD:20981-DB] (5 of 14) [CRLA-305/1991] under Section 307 read with Section 114 IPC, who had come at the place of incident with the deceased.
8.1. It was further submitted that the accused had been on duty at loco gate to protect railways property by the competent officer, under the Railway Protection Force Act, 1957, and hence, he is a public servant, and therefore, he could not have been convicted under Section 302 IPC, because at the time of the alleged incident, he was protecting the railways property from the deceased, thus falling under Exception 3 of Section 300 IPC. Thus, as per learned counsel, the impugned conviction of the accused- appellant under Section 302 IPC is not justified in law. 8.2. Learned counsel also submitted that the deceased was a habitual offender and other criminal cases were also lodged against him; in the present case, the deceased unlawfully entered the railways property and indulged into the fight with the accused- appellant.
8.3. Learned counsel further submitted that DW.3 and D.W.4 both clearly stated that the deceased came at the loco gate along with weapon (Farsa) and attacked the accused-appellant, as a result of which, the accused-appellant sustained grievous injury on the thumb of his right hand, while trying to stop the deceased. 8.4. Learned counsel also submitted that the statements of prosecution eye witnesses PW.1 and PW.2 are clearly contradictory as regards the incident in question. It was further submitted that the accused was on bail during trial, and after conviction vide the impugned judgment, his sentence was suspended and he was released on bail, and therefore, in total, the custody period of (Downloaded on 28/05/2024 at 08:37:31 PM) [2024:RJ-JD:20981-DB] (6 of 14) [CRLA-305/1991] accused is 290 days. The accused is 67 years old person and at the time of commission of offence in question, he was 26 years old.
8.5. In support of such submissions, learned Counsel relied upon the judgment rendered by a Division Bench of the Hon'ble High Court of Bombay in the case of Rajkumar Anandilal Vs State of Maharashtra (Crl.A. No. 297 of 1999, decided on 01.09.2005).
9. On the other hand, the learned Public Prosecutor appearing on behalf of the State, opposed the aforesaid submissions made on behalf of the appellant, while submitting that the accused- appellant caused injury to the deceased, followed by repeated attacks on the deceased, as a result whereof the deceased sustained a total nine injuries, out of which, four injuries were caused on the head, and therefore, the accused was rightly convicted by the learned Trial Court vide the impugned judgment. 9.1. It was further submitted that the blood of the accused- appellant matched with the clothes recovered from the body of the deceased. It was also submitted that there are three eye witnesses i.e PW.1, PW.2 and P.W.3 and all of them supported the prosecution story.
9.2. It was also submitted that there is no written order regarding the submission of the accused having been assigned the duty at loco gate; the accused had the motive/intention to cause death of the deceased, and therefore, the learned Trial Court convicted him under Section 302 IPC, which is justified in law. 9.3. It was further submitted that the accused-appellant committed the heinous offence and caused the murder of (Downloaded on 28/05/2024 at 08:37:31 PM) [2024:RJ-JD:20981-DB] (7 of 14) [CRLA-305/1991] deceased in a brutal manner, and therefore, he is not entitled for any relief by this Court.
10. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgment cited at the Bar.
11. This Court observes that the witnesses in the present case are PW.1- Vikram Singh, PW.2- Om, PW.3- Manohar Singh, PW.7- Rajendra Singh, PW. 9- Manmohan and PW.-11- Madan Lal (R.P.F. and also posted at loco gate); PW.3 and PW.11 were declared hostile during the trial, and the eye witnesses on behalf of the accused are D.W.3- Dhul Singh and D.W.4- Idan Singh.
12. This Court further observes that there are two sides of the story; firstly, as per the prosecution, PW.1 stated that he was sitting at the Tea Shop, and at that time, the worker Om (Omiya) came and stated that the accused-appellant and the deceased were fighting, whereupon he came out from the shop and saw the accused-appellant causing injury to the deceased, who was lying on the ground; thereafter, the accused went inside the loco gate. He further stated that the entire incident had happened outside the loco gate, near Telephone pole, and similar incident, deposed by PW.2, PW.7, and P.W.9 to the effect that the accused caused injury to the deceased.
12.1.Secondly, P.W-11 who was posted at loco gate alongwith accused filed an FIR against the deceased while stating that the deceased and PW.3 came at loco gate riding on a vehicle (Vickky) and tried to hit the accused-appellant and attempted to enter the loco gate, but were stopped by the accused-appellant; meanwhile, the deceased and PW.3 indulged into a fight with PW.11; during (Downloaded on 28/05/2024 at 08:37:31 PM) [2024:RJ-JD:20981-DB] (8 of 14) [CRLA-305/1991] that time, the accused-appellant came there, and resolved the dispute. Thereafter, the accused-appellant stood at the gate and PW. 11 went to report the incident to the police. At that time, the deceased came alongwith weapon (Dhariya) and attacked the accused; resultantly, grievous injury was caused on the thumb of right hand of the accused-appellant; thereafter, other persons i.e Nain Singh, Aidan Singh and Hari Shankar came and snatched the weapon from the deceased, due to which injury was caused.
13. This Court also observes that an FIR was lodged, and a case was registered before the learned Trial Court (Case No. 61/1985- State Vs. Manohar Singh) wherein Manohar Singh was acquitted. This Court further observes that the accused during examination under Section 313 Cr.P.C also provided a similar story and the D.W-3 and D.W.4 also supportted the aforesaid second part of the narration by the accused-appellant.
14. This Court further observes that the deceased's post mortem (Ex.P/14) was done by PW.17- Dr. M.P Joshi and he deposed during the examination that the deceased died due to injury on the head and total nine injuries were reflected; during the cross- examination, the witness stated that medical of accused-appellant was also done by him, wherein four injuries were found to have been caused on thumb of the right hand of the accused-appellant, and the said injury was found to be grievous in nature.
15. This Court also observes that the grievous injury caused by the deceased to the accused-appellant was proved as per the statement of the PW.17-Dr. M.P. Joshi and in the case filed on behalf of the accused-appellant, P.W-3-Manohar Singh was (Downloaded on 28/05/2024 at 08:37:31 PM) [2024:RJ-JD:20981-DB] (9 of 14) [CRLA-305/1991] acquitted, because the main accused in that case, who caused injury to the accused-appellant, was deceased-Narayan Singh.
16. This Court also perused the statements of D.W.3 and D.W.4, the eye witnesses of the incident, who supported the story of the accused-appellant, which is reflected from the fact that the accused-appellant did not commit any offence and the deceased came to the place of incident and started fighting with the accused-appellant; in furtherance, the deceased caused grievous injury on the thumb of right hand of the accused-appellant.
17. This Court further perused the statements of eye witnesses namely, P.W. 1 P.W.2, P.W.3, P.W.7, and P.W.9 on behalf of the prosecution. P.W.1 and P.W.7 have not stated that the accused- appellant indulged in fight with the deceased as well as that the deceased at the relevant time was lying on the ground; the same was admitted during cross examination in trial, and therefore, the deposition that the accused-appellant caused injury to the deceased was for the first time deposed by him during the trial. This Court also observes that P.W.3 and P.W. 11 were declared hostile, and there are material contradictions between the depositions made by the eye-witnesses, relating to the incident in question.
18. This Court further observes that the accused-appellant was duly assigned the duty at loco gate and the same was stated during the examination by DW. 5- Khuba Ram (RPF-Commandant) and D.W. 6- Babulal- Company Commander-RPF.
19. This Court also observes that when the judgment of conviction is challenged before the Appellate Court, a proper (Downloaded on 28/05/2024 at 08:37:31 PM) [2024:RJ-JD:20981-DB] (10 of 14) [CRLA-305/1991] 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:-
"386. Powers of the Appellate Court.--
After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(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--
(c) in an appeal for enhancement of sentence--
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, 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, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper:(Downloaded on 28/05/2024 at 08:37:31 PM)
[2024:RJ-JD:20981-DB] (11 of 14) [CRLA-305/1991] Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal. "
19.1. This Court further observes that as provided under of Section 386(b)(i) Cr.P.C., the Appellate Court has the power to reverse the findings of the conviction, so as to acquit the accused.
20. 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 Prabhudas Tanna v. State of Gujarat, (2013) 15 SCC 263, as hereunder:-
"9. At this juncture, we are obliged to state that though it may be difficult to state that the judgment suffers from sans reasons, yet it is not at all difficult to say that the reasons ascribed are really apology for reasons. If we allow ourselves to say so, one may ascribe certain reasons which seem to be reasons but the litmus test is to give seemly and condign reasons either to sustain or overturn the judgment. The filament of reasoning must logically flow from requisite analysis, but, unfortunately, the said exercise has not been carried out. In this context, we may refer with profit to the decision in Padam Singh v. State of U.P. [(2000) 1 SCC 621: 2000 SCC (Cri) 285], wherein a two-Judge Bench, while dealing with the duty of the appellate court, has expressed thus: (SCC p. 625, para 2) "2. ... It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a (Downloaded on 28/05/2024 at 08:37:31 PM) [2024:RJ-JD:20981-DB] (12 of 14) [CRLA-305/1991] witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court." (emphasis supplied)
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."
11. In Iqbal Abdul Samiya Malek v. State of Gujarat [(2012) 11 SCC 312: (2013) 1 SCC (Cri) 636], relying on the pronouncements in Padam Singh [(2000) 1 SCC 621 : 2000 SCC (Cri) 285] and Bani Singh v. State of U.P. [(1996) 4 SCC 720:
1996 SCC (Cri) 848] , this Court has reiterated the principle pertaining to the duty of the appellate court.
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 (Downloaded on 28/05/2024 at 08:37:31 PM) [2024:RJ-JD:20981-DB] (13 of 14) [CRLA-305/1991] application of mind to vital evidence and important submissions which go to the root of the matter."
21. This Court also observes that in the present case, there are two sides of the story, and both sides have eye witnesses; on prosecution side, P.W. 1 P.W.2, P.W.3, P.W.7, and P.W.9 are the eye witnesses, while the P.W.3 and P.W.11 were declared hostile; on the side of the accused, the eye witnesses are D.W.3 and D.W.4, and PW.3 also supported the version of the accused.
22. This Court further observes that the accused was posted on government duty for protecting the railways property, and the story of the accused is supported by the evidence, when seen with the injuries opined to be grievous in nature sustained by the accused and the same was duly proved by the statement of PW.17-Dr. M.P Joshi. This Court also observes that the prosecution has failed to prove its case beyond all reasonable doubts and also the possibility of the crime in question having been committed by the accused-appellant.
23. 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 under Section 386(b)(i) of Cr.P.C "reverse the finding and sentence and acquit".
24. This Court is conscious of the judgment rendered by the Hon'ble Apex Court in case of Munna Pandey Vs State of Bihar 2023 SCC OnLine SC 1103, relevant portion whereof is reproduced as hereunder:-
(Downloaded on 28/05/2024 at 08:37:31 PM)
[2024:RJ-JD:20981-DB] (14 of 14) [CRLA-305/1991] "74. If anyone would ask us the question, "What is the ratio of this Judgment?" The answer to the same would be very simple and plain, in the words of Clarence Darrow;
"Justice has nothing to do with what goes on in the courtroom; Justice is what comes out of a courtroom."
25. 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 10.09.1991 passed by the learned Additional Sessions Judge No.1, Jodhpur, in Sessions Case 58/85 (State of Rajasthan Vs. Bakhtawarsingh), the appellant is acquitted of the offence under Section 302 IPC. The appellant was granted bail vide order dated 26.10.1999 passed by a Coordinate Bench of this Hon'ble Court in the instant appeal. His bail bonds stand discharged. All pending applications stand disposed of. Record of the learned Trial Court be sent back forthwith.
26. This Court is thankful to Mr. Jaswant Singh Bhati, who has rendered his assistance as Amicus Curiae, on behalf of the accused-appellants, in the present adjudication. (YOGENDRA KUMAR PUROHIT),J (DR.PUSHPENDRA SINGH BHATI),J SKant/-
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