Rajasthan High Court - Jodhpur
Punja vs State Of Rajasthan on 13 March, 2024
Bench: Pushpendra Singh Bhati, Rajendra Prakash Soni
[2024:RJ-JD:9099-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal (Db) No. 130/2018
Punja s/o Ambawa Meena, Khajuri Fala Kegra, P.S. Goverdhan
Vilas, District Udaipur (Raj.).
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Mr. Kalu Ram Bhati
For Respondent(s) : Mr. B.R. Bishnoi PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Judgment Reserved on 12/02/2024 Pronounced on 13/03/2024 Per Dr. Pushpendra Singh Bhati, J.:
1. In the present appeal, through Jail, the accused-appellant laid a challenge to the judgment of conviction and order of sentence dated 20.06.2014 passed by the learned Sessions Judge, Udaipur ('Trial Court') in Sessions Case No.40/2013 (State of Rajasthan Vs. Punja), whereby the accused-appellant has been convicted and sentenced as below:
Offence Sentence Fine 302 IPC Life imprisonment Rs.50,000/-, in default of which, to further undergo 5 months' S.I.
2. Brief facts of the case are that on 24.12.2012, one Hurji Meena (complainant) submitted a written information (Ex.P-4) (Downloaded on 13/03/2024 at 08:39:58 PM) [2024:RJ-JD:9099-DB] (2 of 15) [CRLAD-130/2018] before the then Station House Officer, Police Station Gordhanvilas, Udaipur, stating therein that on 22.12.2012 at around 7:00 a.m., one Babulal (son of complainant's younger brother-Savji) aged about 30 years, at that time, alongwith accused-appellant (Punja) went to Marwad Forest to get some woods (Baans); whereafter, Babu Lal did not return back home. On 23.12.2012, the mother of Babu Lal enquired from Punja (accused-appellant) of the whereabouts of Babu Lal, to which she (mother) was told that after selling the woods (Baans), Babu Lal proceeded to Ahmedabad (Gujarat). Thereafter, upon the same enquiry being made by the complainant from Punja on 23.12.2012 itself at around 5:00 p.m., the complainant was told that on the relevant day, Babu Lal and Punja (accused-appellant) entered into a fight at Joonapaani Naala; Babu Lal is lying in the said Naala.
Thereupon, the complainant alongwith other nearby persons reached the said Naala at about 06:00 p.m. on the same day i.e. 23.12.2012 and found Babulal thereat in a state of unconsciousness and they also found the shoes of Babu Lal and Baans Bhaari, lying near him at the said place. 2.1. As per the complainant, under such circumstances, the complainant alongwith one Ratan took Babu Lal in the state of unconsciousness to General Hospital and he was admitted therein. On 24.12.2012 (the date of written information) at about 6:00 a.m., Babu Lal expired. It was further stated that at the time of fight in question between deceased Babu Lal and Punja (accused- appellant), the deceased sustained grievous injuries on his head, and the same was stated to be the cause of the death in question. The complainant further stated that at the time of submission of (Downloaded on 13/03/2024 at 08:39:58 PM) [2024:RJ-JD:9099-DB] (3 of 15) [CRLAD-130/2018] the written information, the dead body of Late Babu Lal was lying in the Mortuary of the Hospital.
3. On the basis of the aforementioned written information given by the complainant, an FIR bearing No.470/2012 (Ex.P-5) dated 24.12.2012 was registered at Police Station, Gordhanvilas, Udaipur for the offence under Section 302 IPC, and the investigation accordingly commenced thereafter.
4. Upon completion of the investigation, the concerned investigating officer submitted a charge-sheet under Section 302 IPC before the learned Additional Chief Judicial Magistrate No.3, Udaipur; wherefrom, owing to the nature of offence in question, the matter was committed to the learned Trial Court for framing of charges and the due trial and adjudication.
4.1. On 04.02.2013, the learned Trial Court framed the charge against the accused-appellant for the offence under Section 302 IPC and the said charge was 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.
4.2. During the course of trial, the evidence of 13 prosecution witnesses were recorded and 18 documents were exhibited on behalf of the prosecution, whereas, the accused-appellant did not produce any evidence in support of defence; whereafter, the accused-appellant was examined under Section 313 Cr.P.C., in which the accused-appellant pleaded innocence and his false implication in the criminal case in question. (Downloaded on 13/03/2024 at 08:39:58 PM) [2024:RJ-JD:9099-DB] (4 of 15) [CRLAD-130/2018] 4.3. The learned Trial Court thereafter, framed the following question for consideration and the necessary adjudication of the case before it:
"D;k vfHk;kstu i{k us vfHk;qDr ds fo:} lansg ls ijs ;g izekf.kr dj fn;k gS fd vfHk;qDr us vfHkdfFkr fnukad] le; o LFkku ij ckcqyky firk loth eh.kk dh gR;k djus ds bZjkns ls yksgs dh dwaV ¼nkaryh½ tSls ?kkrd gfFk;kj ls mlds flj tSls ekfeZd vax ij okj dj izk.k?kkrd pksV dkfjr dh ftlls mldh e`R;q gks xbZ ?"
4.4. 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 20.06.2014, against which the present appeal, through Jail, has been preferred on behalf of the accused-appellant.
5. Learned counsel for the accused-appellants submitted that the prosecution has failed to produce any evidence before the learned Trial Court, which could prove that the accused-appellant was accompanying the deceased prior to the death nor the recovery of the Koont (weapon) could be proved beyond reasonable doubt.
5.1. Learned counsel further submitted that the accused- appellant has already undergone a custody period of almost 12 years, in furtherance the present accused appellant has no previous criminal record/antecedents.
5.2 Learned counsel further submitted that from a perusal of the record it is clear that there existed no prior conflict between the accused-appellant and the deceased and not one of the 13 (Downloaded on 13/03/2024 at 08:39:58 PM) [2024:RJ-JD:9099-DB] (5 of 15) [CRLAD-130/2018] witnesses so produced gave information regarding the same; in furtherance it was submitted that no motive/intention to cause the death of the deceased can be seen from the facts, circumstances or statements of the witnesses, therefore the conviction under Section 302 IPC is not justified under the eye of the law. 5.3. In support of such submissions, learned counsel relied on the following judgments:
(a) Indrasan Vs. State of Uttar Pradesh (Criminal Appeal No.996/2004, decided by the Hon'ble Apex Court on 06.07.2009);
(b) Magni Ram Balai Vs. State of Rajasthan (D.B. Criminal Appeal No.5/2008, decided by a Division Bench of this Hon'ble Court on 15.02.2018); and
(c) Meetha Lal Vs. State of Rajasthan (D.B. Criminal Appeal No.291/2010, decided by a Division Bench of this Hon'ble Court on 09.12.2015).
6. On the other hand, learned Public Prosecutor appearing on behalf of the State, while opposing the aforesaid submissions made on behalf of the accused-appellant, submitted that on the information given by the accused-appellant under Section 27 of the Indian Evidence Act, 1872 and after due identification by the accused, the Koont (weapon) in question was recovered by the concerned investigating authority and reliance was placed upon the deposition of witnesses as well who had seen the said koont (weapon) being recovered from the accused-appellant's house. 6.1. As per learned Public Prosecutor, on all the articles including the weapon in question, bloodstained clothes of the accused- appellant, bloodstained stone etc. so seized and sent for FSL (Downloaded on 13/03/2024 at 08:39:58 PM) [2024:RJ-JD:9099-DB] (6 of 15) [CRLAD-130/2018] examination, Category 'A' human blood was found thereon which matches with that of the victim.
6.2. Learned Public Prosecutor thus submitted that the prosecution has proved its case against the accused-appellant for the offence under Section 302 IPC beyond all reasonable doubts, and the learned Trial Court has passed the impugned judgment of conviction and order of sentence, after taking into due consideration the overall facts and circumstances of the case and after duly analyzing the material and evidence placed on record before it, and thus, such a well reasoned speaking judgment does not call for any interference by this Court.
7. Heard learned counsel for the parties as well as perused the record of the case, alongwith the judgments cited at the Bar.
8. This Court observes that during the course of the trial the learned Trial Court framed the afore-quoted question whether the accused-appellant had on the relevant date, time and place inflicted Koont (weapon) blow on the head of the victim with the intention to commit murder of the victim.
9. This Court further observes that P.W.4 Hurji had asked the accused-appellant on 23.12.2012 in the evening (a day after the incident took place i.e. on 22.12.2012) regarding the whereabouts of the deceased and only then he had come to know of the fight that took place between the two whereafter P.W.4 himself went to the Joona Pani ka nala where the deceased was found lying bleeding from his head and taking slow breaths, other people- P.W.7 Ratnibai, Sundar, Kalu and two children were already present on the said scene, whereafter a phone call was made to P.W.6 Shanta Meena who thereafter called the Police and thus both (Downloaded on 13/03/2024 at 08:39:58 PM) [2024:RJ-JD:9099-DB] (7 of 15) [CRLAD-130/2018] the Police and P.W.6 reached at the said place and immediately the deceased was taken to General Hospital, admitted in Ward No.16., however the deceased took his last breaths on the morning of 24.12.2012 at 6 o'clock and the body of the deceased was taken for postmortem (Ex.3) whereafter it was given back to P.W.8 Savji for cremation rites (Ex.2).
10. This Court also observes that P.W. 4 on 24.12.2012 gave a written report of the incident on 24.12.2012 and FIR (Ex.5) was lodged by the concerned Police, whereafter the investigation began and at the place of incident naksha mauka was made (Ex.8) wherein the deceased's bloodied shirt (EX.7), stone covered in blood (Ex.6) was found and the accused-appellant was arrested (Ex.9) whereafter as per the testimony provided by the accused- appellant koont (weapon) (Ex.10) was recovered from his house and the same was witnessed by P.W.9 Chatra and all three objects were subsequently sent to Forensic Lab.
11. This Court further observes that P.W.3 Doctor Akhilesh Sharma did postmortem on the body of the deceased and found three different injuries incurred by the deceased, one being on the back of his head, another being on his knee and the last being on his left arm; in furtherance the P.W.3 deposed that the injury on the back of the head caused the deceased to go into a state of coma which ultimately resulted in the death of the deceased.
12. This Court further observes that as per the FSL Report (Ex.14) all the three objects sent to the Forensic Lab had upon them Category 'A' blood, the same as that belonging to the deceased and koont (weapon) was discovered from the house of the accused-appellant himself on his own testimony. (Downloaded on 13/03/2024 at 08:39:58 PM) [2024:RJ-JD:9099-DB] (8 of 15) [CRLAD-130/2018]
13. This Court further observes that on 22.12.2012 one witness P.W. 6 Shanta Meena in her deposition had alleged to have seen the accused-appellant and the deceased going to the forest and further stated during cross examination that she was unaware why the same had not been mentioned in Fard Exhibit no.2 however the said Exhibit pertains to handing over of the body of the deceased to the legal heir, thus there is clear contradiction in the statement given by P.W. 6.
14. This Court also observes that P.W.2 deposed that his daughter who sits in the shop had seen the accused-appellant and the deceased going into the forest and further stated that his daughter is a child of 6-7 years and that she does not know either the accused-appellant nor the deceased.
15. This Court also observes that another witness P.W. 11 Smt. Jeevali also deposed the accused-appellant and the deceased going to the forest however in her statements she only stated that the accused-appellant and the deceased had been to her house whereafter they had drinks and she gave them roti to eat.
16. At this juncture this Court considers it appropriate to reproduce the relevant portions of the judgment rendered by the this Court in the case of Smt. Jethi Devi v. State of Rajasthan (D.B. Criminal Appeal No. 213/2015 decided on 19.02.2024):
8. At this juncture, this Court considers it appropriate to reproduce the relevant portions of the judgment rendered by the Division Bench of this Hon'ble Court in the case of Nemichand Regar (Supra) as hereunder-:
"29. After thorough consideration of both sets of evidence available on record, we are of the opinion that (Downloaded on 13/03/2024 at 08:39:58 PM) [2024:RJ-JD:9099-DB] (9 of 15) [CRLAD-130/2018] the testimony of deceased recorded by the Head Constable, Bhanwarlal (P.W. 9) and the then Magistrate, Ms. Purnima Gaur (P.W. 11) cannot be disbelieved, but at the same time, this Court cannot lose sight of the fact that there is no evidence of "motive", more so, it emerges from both the sets of evidence that some quarrel took place all of sudden when deceased reached in the house in the evening and incident of quarrel and fire took place all of sudden, so also Smt. Kamla (P.W. 7) immediately made efforts and rescued from fire. Therefore, when there is no specific allegation against accused appellant, Nemichand, of pouring kerosene and lighting fire and there is no evidence of "motive" on record, therefore, we are of the opinion that conviction of the accused appellant, Nemichand, for the offence u/s. 302 of IPC is not sustainable in law. But, this Court cannot accept the argument that involvement of Nemichand is false.
30. With regard to participation of Smt. Mangi Devi, in pouring kerosene upon the body of deceased and lighting fire, we have examined the entire evidence, more particularly, the site plan (Ex. P/7), in which there is no mentioning about the recovery of any kerosene tin, the said site plan was prepared in the presence of P.W. 7 Smt. Kamla, Shantilal (P.W. 3) and Gajraj (P.W. 5). Some articles pieces of "Lehanga", one blanket and one chimney in broken condition were handed over by the husband of deceased to the police and at the time of taking the said articles in possession by the S.H.O., P.S. Ladnu, smell of kerosene was coming out from the clothes. Meaning thereby, the prosecution has proved the fact that on the date of incident, injuries were inflicted by Nemichand and some incident of burning took place in the house.
31. We have also perused the statement of the doctor, P.W. 15, Dr. Sanjeev Puri, who conducted who performed the postmortem, and gave report Ex. P/15. As per opinion of the doctor, the cause of death was shock due (Downloaded on 13/03/2024 at 08:39:58 PM) [2024:RJ-JD:9099-DB] (10 of 15) [CRLAD-130/2018] to burn ante-mortem as mentioned, was sufficient to cause death in ordinary course of nature.
32. We have perused the statement of Investigating Officer, Girdhari Singh, who conducted the investigation initially and statement of P.W. 12, S.H.O. Dharamveer Janu (P.W. 14), who conducted further investigation and statements of Mr. Rajendra Beniwal (P.W. 13) who filed charge sheet against the accused appellants for the offences under Sections 306, 498A, 323 of IPC. It is evident from the record that on the basis of dying- declaration, charge u/s. 302 and in the alternative 302/34 of IPC was framed against accused appellant, Nemichand and Smt. Mangi Devi.
33. In the case of Om Pal Singh v. State of U.P. reported in AIR 2011 SC 1562, the Hon'ble Apex Court held that in absence of certificate of fitness by the doctor the dying declaration cannot be disbelieved. The certificate of the doctor is rule of caution. The relevant discussion made by the Hon'ble Apex Court in the said case reads as infra:-
"20. This now brings us to the submissions with regard to the dying declaration. Factually, it is to be noticed that the Tehsildar, who recorded the dying declaration appeared as PW-6, he has clearly stated that although no doctor was present in the hospital, he was informed by the pharmacist that Rishipal Singh was in a fit state to make a statement. He, thereafter, isolated the injured Rishipal Singh and recorded his statement. He further stated that he wrote down word by word what Rishipal Singh had stated. The contents of the statement were read to the injured who stated that he understood and accepted the same. Only thereafter, he put his thumb impression on the statement. It is undoubtedly true that the statement has not been recorded in the question and answer form. It is also correct that at the time when the statement was recorded Rishipal Singh was in a "serious condition".(Downloaded on 13/03/2024 at 08:39:58 PM)
[2024:RJ-JD:9099-DB] (11 of 15) [CRLAD-130/2018] xxx
22. In our opinion, the trial court as well as the High Court correctly accepted that the dying declaration was an acceptable piece of evidence. Merely because, it is not in question and answer form would not render the dying declaration unreliable. The absence of a certificate of fitness by the Doctor would not be sufficient to discard the dying declaration. The certification by the doctor is a rule of caution, which has been duly observed by the Tehsildar/Magistrate, Bisauli, who recorded the statement. The statement made by the injured is candid, coherent and consistent. We see no reason to disbelieve the same. We, therefore, see no reason to differ with the conclusions arrived at by the trial court and the High Court with regard to the dying declaration also. We must also notice that PW2 and PW3 have given clear and consistent eyewitness account. They have narrated the previous incident of disharmony between the appellant and the deceased. They have also adverted to the previous attempts by the appellant to harm the deceased. The entire incident of shooting has been graphically described by the two witnesses. The direct testimony of these two witnesses have been corroborated by the medical evidence and the dying declaration."
34. It is settled principle of law that dying-declaration cannot be disbelieved unless and until it is found to be false on the basis of other reliable evidence, therefore, this Court is not inclined to accept the arguments of learned counsel for the appellants to disbelieve the dying declaration, but at the same time, upon consideration of entire evidence on record and upon the fact that all of sudden occurrence took place, we find that the trial court has committed error in convicting the accused appellant for the offence under Section 302/34 of IPC because there is no evidence or allegation of motive on record so as to (Downloaded on 13/03/2024 at 08:39:58 PM) [2024:RJ-JD:9099-DB] (12 of 15) [CRLAD-130/2018] hold accused appellant guilty for offence under Section 302/34 of IPC.
35. Consequently, the instant appeal filed by the appellants, is partly allowed, the finding of guilt recorded by the trial court for the offence u/s. 302/34 of IPC against the appellant No. 1, Nemichand, is not sustainable in law because as per evidence on record, in spur of moment, all of sudden occurrence took place without any motive to commit the offence of "murder" by the accused appellant No. 1, Nemichand, therefore, the conviction and sentence of the accused appellant No. 1, Nemichand to the extent for the offence u/s. 302/34 of IPC, is hereby quashed but conviction and sentence for other offences is hereby maintained.
36. Similarly, the conviction of accused appellant No. 2, Smt. Mangi Devi, for the offence u/s. 302/34 IPC, is hereby altered to offence u/s. 304 Part I of IPC and the sentence of life imprisonment is hereby reduced to ten years' rigorous imprisonment but the conviction and sentence of other offences is hereby maintained."
9. This Court also finds that as per the entire record and the evidence produced by the prosecution, it is an admitted position that the deceased died due to burns, and one hand, this Court finds that the dying declarations EX-15 and EX-24 as recorded, are not worthy of being discarded, but at the same time, the entire record including all evidences, make it apparently clear that the incident had occurred on count of the sudden fight between the accused-appellant and the deceased, which do not showcase any motive/intention on the part of the accused-appellant to cause death of the deceased, which is the main element/ingredient to make out a case against the accused-appellant for recording conviction under Section 302 IPC. This Court further observes that the accused-appellant has already undergone the custody period of almost 11 years and there is no previous criminal antecedent recorded against the accused-appellant.
10. Thus, having regard to the overall facts and circumstances of the case and looking into the nature of offence in question and and the above-quoted precedent law (Downloaded on 13/03/2024 at 08:39:58 PM) [2024:RJ-JD:9099-DB] (13 of 15) [CRLAD-130/2018] as well as all the evidence available on record, the present appeal deserves to be allowed and the same is hereby allowed, and accordingly, conviction of the accused-appellant under Section 302 IPC is hereby altered/converted into an offence under Section 304 Part I of IPC, while holding the accused-appellant guilty under the said provision of law. However, since the accused-appellant had already undergone a custody period of almost 11 years, therefore, her sentence is hereby reduced from life imprisonment to the sentence already undergone by her.
17. This Court further observes that the information was received by P.W.4 from the accused-appellant himself who though earlier had lied regarding the whereabouts of the deceased however on 23.12.2012 the same day when he was asked once again the same question, he came clean while stating that a fight broke out between the two and mentioned the entire incident that had taken place the day before to P.W.4, resulting in the discovery of the deceased at Joona Pani ka nala by P.W.4 and being able to take the deceased to aforesaid Hospital for appropriate treatment. 17.1.This Court observes that as per the entire evidence including the statements of the prosecution witnesses, it is clear that the accused-appellant committed the crime in question, but the essential ingredient of motive/intention under Section 302 IPC is missing and the same can be deciphered from the lack of any prior dispute between the accused and appellant or any any other reason for causing the murder of the deceased.
18. This Court further observes that the accused-appellant himself provided the whereabouts of the injured deceased as well as the incident that took place in the forest and the same was reflected from the statements of PW.4 thus after perusal of (Downloaded on 13/03/2024 at 08:39:58 PM) [2024:RJ-JD:9099-DB] (14 of 15) [CRLAD-130/2018] records of the case, this Court finds that it is a case where the accused-appellant knew what he was doing, but had no intension to cause death of the deceased, therefore, the act of the accused- appellant does not meet out the essential ingredients of Section 302 IPC.
19. This Court further observes that there exists nothing on record to showcase any prior animosity between the accused- appellant and the deceased, nor does the entire incident proves any kind of pre-planning on part of the accused-appellant. Thus from the above factual matrix it is clear that there was no motive/intention on part of the accused-appellant. Furthermore the essential ingredients of Section 302 IPC are not made out. 19.1 This Court also observes that the accused-appellant is under custody of almost 12 years and there is no past criminal antecedent against him. This Court further observes that there is nothing on record showcasing any bad conduct of the accused- appellant in jail.
20. In light of the above observations and having regard to the overall facts and circumstances of the case and the above-quoted precedent laws as well as all the evidence available on record, the present appeal deserves to be allowed and the same is hereby allowed, and accordingly, conviction of the accused-appellant under Section 302 IPC vide the impugned judgment dated 20.06.2014 is hereby altered/converted into an offence under Section 304 Part I of IPC, while holding the accused-appellant guilty under the said provision of law. However, since the accused- appellant had already undergone a custody period of almost 12 (Downloaded on 13/03/2024 at 08:39:58 PM) [2024:RJ-JD:9099-DB] (15 of 15) [CRLAD-130/2018] years, therefore, his sentence is hereby reduced from life imprisonment to the sentence already undergone by him. 20.1. Appellant is in custody, he be released henceforth, if not required in any other case.
20.2. Keeping in view the provision of Section 437-A Cr.P.C., the accused-appellant is directed to furnish a personal bond in a sum of Rs. 20,000/- and a surety bond 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- appellant, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court as soon as she would be called upon to do so.
20.3. The record of the learned Trial Court be sent back forthwith. (RAJENDRA PRAKASH SONI),J (DR.PUSHPENDRA SINGH BHATI), J. SKant/-
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