Rajasthan High Court - Jodhpur
State vs Balveer And Ors on 29 November, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:45699-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 733/2013
State
----Appellant
Versus
Balveer And Ors.
----Respondent
Connected With
D.B. Criminal Appeal No. 483/2013
Pushkar Ram
----Appellant
Versus
Balveer And Ors.
----Respondent
For Appellant(s) : Mr. C.S. Ojha, AGA
For Respondent(s) : Mr. Suresh Kumbhat
Mr. Sheetal Kumbhat
Mr. Naman Bhansali
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN Judgment Reserved on 08/10/2024 Pronounced on 29/11/2024 Per Dr. Pushpendra Singh Bhati, J:
1. The instant criminal appeals have been preferred claiming the following reliefs:
Criminal Appeal No. 733/2013 by State:
"It is, therefore, most humbly and respectfully prayed that this leave to appeal may kindly be granted and appeal may kindly be allowed. The impugned judgment dated 17.04.2013 may kindly be quashed and set aside and the accused respondents may kindly be convicted and sentenced as per the provision of law."(Downloaded on 03/12/2024 at 09:39:34 PM)
[2024:RJ-JD:45699-DB] (2 of 15) [CRLA-733/2013] Criminal Appeal No. 483/2013 by complainant-Pushkar Ram:
"It is therefore most humbly and respectfully prayed under the facts and the circumstances of the case that, this appeal of the appellant may very kindly be allowed and the judgment impugned dated 17-04-2013 passed in the criminal appeal no.1/2010 may very kindly be quashed and set aside, that the accused may be convicted suitably for their offences as mentioned herein above and as mentioned in the charge-sheet of the case, that the heavy compensation may also be awarded to the appellant, any other relief which is just and proper in the favor of the appellant may also be passed."
2. The appellants herein i.e., State & the complainant laid a challenge to the judgment and order dated 17.04.2013 passed by the learned District & Sessions Judge, Pratapgarh ('Trial Court'), in Sessions Case No.01/2010 (State v. Balveer & Ors.), whereby the learned Trial Court acquitted the accused-respondents of the charges against them in the following manner:
Accused-respondents Acquittal (charges u/Ss.) Balveer 302, 452, 148, 307 & 307/149 IPC; in alternative, 324, 323 & 324/149 & 323/149 IPC Ramnarayan 302/149, 452, 148, 307 & 307/149 IPC; in alternative, 324, 323 & 324/149 & 323/149 IPC Geeta Bai 302/149, 452, 148, 307 & 307/149 IPC; in alternative, 324, 323 & 324/149 & 323/149 IPC Uma 302/149, 452, 148, 307 & 307/149 IPC; in alternative, 324, 323 & 324/149 & 323/149 IPC Bharat 302/149, 452, 148, 307 & 307/149 IPC; in alternative, 324, 323 & 324/149 & 323/149 IPC (Downloaded on 03/12/2024 at 09:39:34 PM) [2024:RJ-JD:45699-DB] (3 of 15) [CRLA-733/2013]
3. The matters pertains to an incident which had occurred in the year 2009 and the present appeals have been pending since the year 2013.
4. At the outset, it has been brought to the notice of this Court that accused-respondent Ramnarayan has expired on 28.11.2019, which is reflected in the copy of the death certificate produced before this Court. The said copy of the death certificate is taken on record. Thus, in light of the same, the instant appeals qua deceased accused-respondent Ramnarayan stand dismissed for having abated.
4.1. Accordingly, the present adjudication is made only to the extent of surviving accused-respondents namely, Balveer, Smt. Geeta Bai, Ms. Uma and Bharat.
5. Brief facts of the case, as placed before this Court by learned counsel representing the appellants, are that on 07.11.2009 at about 11:15 PM, a written report (Ex.P-1) was submitted by one Pushkar (complainant), stating therein that on the said day, at about 8:30 PM, accused-respondents namely Balveer, Ram Narayan, Bharat, Uma, Geeta Bai and Radha Bai, armed with lathi, sword, knife, and dhariye, had unlawfully entered the residential premises of Pushkar (complainant) at Devkhera; at that time, the complainant's father Ramlal, mother Narayanidevi, younger brother Arjun and Arjun's wife Santosh, were inside the house. 5.1. It was further stated in the report that accused-Balveer attacked Narayanidevi with a knife on abdomen above her waist, accused-Bharat caused injury by knife to Santosh on her chest; accused-Bharat also inflicted blow by dhariya on the head of (Downloaded on 03/12/2024 at 09:39:34 PM) [2024:RJ-JD:45699-DB] (4 of 15) [CRLA-733/2013] Arjun; accused-Ramnarayan caused injury by knife on the right side of the chest of Ramlal; Pushkar himself was injured by accused-Uma with knife and lathi. The complainant shouted and raised an alarm, whereupon the persons, namely, Mohan Singh, Gopal Das, Rajkumar and Mubarik, who at the relevant time, present at the place of incident (which was properly lit), witnessed the entire incident and came forward to the rescue of the complainant party. Narayanidevi (mother of complainant), fainted at the spot and thereafter was taken to the hospital and upon arrival was declared dead. As per the complainant, the accused persons used a vehicle (Gypsy) bearing registration No. RJ 23 C 2843 to commit the crime in question.
5.2. On the basis of the aforesaid report, an FIR bearing No.231/2009 was registered at the Chhotisaddri Police Station, for the offences under Sections 147, 148, 149, 307, 302, 452 & 323 IPC. During the course of investigation, no case was found to be made out against accused-Radhabai. Thus, the charge-sheet was filed against the accused-respondents herein, before the learned Additional Chief Judicial Magistrate, Chhotisaddari. Owing to the nature of the offence involved, the matter was committed to the learned Sessions Court, from where the matter was referred to the learned Trial Court for the necessary adjudication and due trial. 5.3. The learned Trial Court framed the charges against the accused-respondent Balveer under Sections 302, 452, 148, 307, 307/149 IPC in alternate under Sections 324, 323, 324/149, 323/149 IPC and against accused-respondents Ramnarayan, Bharat, Geeta, Uma under Sections 302/149, 452, 148, 307 & (Downloaded on 03/12/2024 at 09:39:34 PM) [2024:RJ-JD:45699-DB] (5 of 15) [CRLA-733/2013] 307/149 IPC, in alternate under Sections 324, 323, 324/149, & 323/149; the said charges were read over to the accused- respondents, which they denied and claimed to stand due trial, whereafter the trial commenced.
5.4. During the course of trial, the prosecution produced 19 witnesses and got exhibited documents (Ex.P.-1 to Ex.P.-47) in support of its case. On the other hand, in defence, 2 witnesses were produced and exhibited documents (Ex.D-1 to Ex.D.-10) were exhibited; whereafter the accused-respondents were examined under Section 313 Cr.P.C., wherein they pleaded innocence and their false implication in the criminal case in question.
5.5. Thereafter, upon hearing the contentions of both the parties as well as considering the material and evidence placed on record, the learned Trial Court, acquitted the accused-respondents, vide the impugned judgment and order dated 17.04.2013, as above; against which the present appeals have been preferred by the appellant-State and the appellant-complainant, respectively.
6. It was submitted on behalf of the appellants that the learned Trial Court has erred in law in acquitting the accused-respondents of the charges against them, more particularly, when there were four injured witnesses and four other eyewitnesses who intervened in the incident in question.
6.1. It was further submitted that PW-1 Pushkar, PW-2 Santosh, PW-3 Arjun & PW-5 Ramlal were the family members of the deceased, who were also brutally attacked by the accused- respondents using deadly weapons and resultantly, sustained (Downloaded on 03/12/2024 at 09:39:34 PM) [2024:RJ-JD:45699-DB] (6 of 15) [CRLA-733/2013] injuries. It was also submitted that the testimonies of the said witnesses were however, discarded by the learned Trial Court, while considering them as interested witnesses, and such conclusion, in the given circumstances, is not sustainable in the eyes of law.
7. On the other hand, while opposing the aforesaid submissions made on behalf of the appellants, learned counsel for the respondents submitted that in connection with the FIR of the incident in question, the accused-Balveer was taken into custody; during the course of which, the said accused addressed a letter (Ex.D-6) to the Superintendent of Police raising his grievance, however no action was taken on the same, which in turn creates doubt vis-a-vis the fairness of the investigation process. 7.1. It was further submitted that in the said letter (Ex.D-6), accused-Balveer stated that in regard to a land dispute between the accused and the complainant, a compromise has been arrived at between them, vide compromise document (Ex.D-1) duly drawn on the stamp, wherein it was also mentioned that the said land had been in occupation and use of the accused-respondents. 7.2. It was also submitted that despite the aforesaid compromise, the members of the complainant party, on the date of alleged incident, attacked the accused party with deadly weapons; in connection with which accused-Balveer went to the police station concerned to lodge the report, but instead of lodging such report against the complainant party, the police arrested the said accused and falsely implicated him along with the other accused- respondents.
(Downloaded on 03/12/2024 at 09:39:34 PM) [2024:RJ-JD:45699-DB] (7 of 15) [CRLA-733/2013] 7.3. It was also submitted that there are contradictions as to the presence of electricity at the place of incident. As per the testimonies of PW.1 Pushkar, PW.2 Santosh and PW.5 Ramlal, the place of incident was properly lit; however DW.1 Satyanarayan, engineer testified, as per the records of the electricity board, that there was no domestic connection available at the site in question. 7.4. It was further submitted that the eyewitnesses to the incident have turned hostile during the trial and that have contradicted the statements with respect to the deceased being taken to Neemch Hospital and not to Chhotisaddri Hospital. Further, the recovery witnesses PW 8 and PW 13 have also turned hostile during the trial.
7.5. It was also submitted that the recovery of the weapons allegedly used to commit the crime in question is also doubtful. Lathi and knife which were recovered by the police were not produced during the trial. Further, the sword and dhariya allegedly used in the committing the murder in question have not been recovered.
7.6. In support of such submissions, learned counsel relied upon the judgments rendered by the Hon'ble Apex Court in the case of Chadrappa and Ors. v. State of Karnataka (Criminal Appeal No. 853 of 2006, decided on 15-02-2007) and Mallappa v. State of Karnataka (Criminal Appeal No. 1162 of 2011, decided on 12-02-2024).
8. Heard learned counsel for the parties as well as perused the record of the case and the judgments cited at Bar. (Downloaded on 03/12/2024 at 09:39:34 PM) [2024:RJ-JD:45699-DB] (8 of 15) [CRLA-733/2013]
9. This Court observes that the complainant PW.1 filed a written report on 07.11.2009 stating therein that on the said day, at about 8:30 PM, accused-respondents attacked the family of the complainant, causing multiple injuries to them using deadly weapons. The complainant's mother (since deceased) fainted due to injuries and blood loss and thereafter was declared to be dead, upon reaching the hospital. On the basis of the same, FIR No. 231/2009 (Ex.P.-1) was registered at Police Station Chhotisaddri under Sections 147, 148, 149, 307, 302, 452, 323 IPC against Balveer, Ram Narayan, Bharat, Uma, Geeta Bai, Radha Bai. However during the course of investigation, accused-Radhabai was found to be innocent and therefore, no charge-sheet was submitted against her.
9.1. This Court further observes that the learned Trial Court conducted the trial and after hearing both the sides and considering and analyzing the material placed on record before it, passed the impugned judgment of acquittal dated 17.04.2013; against which the instant appeals have been preferred on behalf of the State and the complainant.
10. This Court further observes that during the trial, PW-1 Pushkar (complainant and son of the deceased), PW-2 Santosh (daughter-in-law of the deceased), PW-3 Arjun (son of the deceased and husband of PW-2) and PW-5 Ramlal (husband of the deceased), who were produced as the eyewitnesses to the incident in question, belonged to the same family, and hence, were interested witnesses, but their presence at the place of incident at (Downloaded on 03/12/2024 at 09:39:34 PM) [2024:RJ-JD:45699-DB] (9 of 15) [CRLA-733/2013] the relevant time was natural as they were residing together in the same premises.
10.1. This Court further observes that as per the testimony of complainant PW-1 Pushkar, at the relevant time, when he raised the alarm, four passersby (namely, Mohan Lal, Gopaldas, Rajkumar, and Mubarik) rushed to the place of incident and intervened the act in question, however all of them, when produced as independent witnesses, turned hostile during the trial and did not support the prosecution story.
11. This Court also observes that there has been contradiction as to the presence of electricity at the place of incident at the relevant time. PW-1, PW-2 & PW-5 claimed that at the relevant time, electricity connection in the name of PW-5 was available at the place of incident; however DW-1 Satyanarayan Soni (an independent witness), the then Assistant Engineer, at Ajmer Vidyut Vitran Nigam Limited, Chotisaddri on 30.05.2011, certified on the basis of the official records that at the relevant time, there was no electricity connection in the name of PW 5 Ramlal, PW 1 Pushkar and PW 3 Arjun, in the village. This creates a doubt on the testimonies of the eyewitnesses.
12. This Court further observes that there has been contradiction as to the place of incident as well, because per the prosecution story, the incident took place inside the complainant's residential premises which were allegedly entered by the accused- respondents unlawfully; however, testimonies of certain other prosecution witnesses show that the incident took place outside (Downloaded on 03/12/2024 at 09:39:34 PM) [2024:RJ-JD:45699-DB] (10 of 15) [CRLA-733/2013] the said premises, which has also been rightly pointed out by the learned Trial Court in its impugned judgment.
13. This Court also observes that the recovery of the alleged weapon used to cause the injury to the deceased which led to her death, i.e., the knife, creates a doubt on the prosecution's case. The blood stained knife recovered vide Ex. P. 20 differed from the description of the knife given by the eyewitness and complainant PW. 1 and the alleged knife was also not produced before the learned Trial Court thereby shaking the credibility of the prosecution's case.
13.1. This Court further observes that the recovery witness of the alleged knife PW 13 Bhopraj has also turned hostile during the trial.
14. This Court further observes that there has been contradiction as to the hospital to which the deceased was taken after the incident in question. PW 10 Gopaldas and PW 17 Mohan Singh stated that the deceased was taken to 'Neemch Hospital' which is about at a distance of 20 minutes from Devkheda; however PW.1, PW.2, PW.3 and PW. 5 unequivocally stated that they took the deceased directly to Chotisaddri Hospital and not to the Neemch Hospital.
15. This Court also observes that the statements of the accused- respondents recorded under Section 313 Cr.P.C., wherein they claimed to have entered into a mutual settlement letter Ex.D.-1, with PW. 5 with respect to the already existing land dispute between the parties; there appears no substantial reason in the (Downloaded on 03/12/2024 at 09:39:34 PM) [2024:RJ-JD:45699-DB] (11 of 15) [CRLA-733/2013] presence of the same settling the issue, for the accused- respondents to cause the incident in question.
16. This Court also observes that as per the Post Mortem Report Ex.P. 33, and the testimony of PW. 16 Dr. Arun Mathur, the sole injury caused by the accused- respondents to the deceased were caused ante-mortem, however neither of the two mentions the approximate time at which such injury was caused to the deceased. This Court further observes as per Ex.P.-37, the injury report of accused- Balveer, the accused suffered burn injuries and that such injuries can be caused due to burning of rubber part of a vehicle, which supports the defence story (the alleged attack was made by the petitioners on the accused- respondents; the same was brought to the notice of police, vide Ex.P.-6, however the same was not investigated upon). The lack on the part of the investigating authorities remains unexplainable and further shows a biased investigation.
17. This Court further observes that the multiple injuries caused to the accused- Balveer were medically examined by PW. 16 Dr. Arun Mathur, though caused with a few hours of the incident were not explained by the prosecution.
18. At this juncture, this Court deems it appropriate to reproduce the relevant portions of the judgments rendered by the Hon'ble Apex Court in the cases of Mallappa & Ors. Vs. State of Karnataka (Criminal Appeal No. 1162/2011, decided on 12.02.2024) and Babu Sahebagouda Rudragoudar and Ors. Vs. State of Karnataka (Criminal Appeal No. 985/2010, decided on 19.04.2024), as hereunder-:
(Downloaded on 03/12/2024 at 09:39:34 PM)
[2024:RJ-JD:45699-DB] (12 of 15) [CRLA-733/2013] Mallappa & Ors. (Supra) :
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."
Babu Sahebagouda Rudragoudar and Ors. (Supra):
"38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:
"8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;(Downloaded on 03/12/2024 at 09:39:34 PM)
[2024:RJ-JD:45699-DB] (13 of 15) [CRLA-733/2013] 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:
(a) That the judgment of acquittal suffers from patent perversity;
(b) That the same is based on a misreading/omission to consider material evidence on record;
(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
19. In the light of the judgments cited above and the facts and circumstances of the case as presented before us, this Court observes that the prosecution has failed to prove their case as both the eyewitnesses and the recovery witnesses have turned hostile during the trial. Further, the investigation conducted during the trial has been biased, and that as observed by the learned Trial Court, the FIR has been filed after exaggerating the facts. In addition to these, there have been major contradictions in the testimonies of the witnesses, which further weakens the (Downloaded on 03/12/2024 at 09:39:34 PM) [2024:RJ-JD:45699-DB] (14 of 15) [CRLA-733/2013] prosecution case and gives the benefit of doubt to the accused- respondents.
20. This Court further observes that the learned Trial Court passed the impugned judgment of acquittal of the accused- respondent under Sections 302, 452, 148, 307 and 307/149 in alternate Section 324, 323, 324/149 and 323/149 and rest of the accused- respondents for the offence under Section 302/149, 452, 148, 307/149 in alternate Section 324, 323 and 324/149 and 323/149, which in the given circumstances, is justified in law, because as per the settled principles of law as laid down by the Hon'ble Apex Court in the aforementioned judgments, to the effect that the judgment of the Trial Court can be reversed by the Appellate Court only when it demonstrates an illegality, perversity or error of law or fact in arriving at such decision; but in the present case, the learned Trial Court, before passing the impugned judgment had examined each and every witnesses at a considerable length and duly analysed the documents produced before it, coupled with examination of the oral as well as documentary evidence, and thus, the impugned judgment suffers from no perversity or error of law or fact, so as to warrant any interference by this Court in the instant appeal.
21. This Court also observes that the scope of interference in the acquittal order passed by the learned Trial Court is very limited, and if the impugned judgment of the learned Trial Court demonstrates a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal as held by the Hon'ble Apex Court in the aforementioned judgment, and (Downloaded on 03/12/2024 at 09:39:34 PM) [2024:RJ-JD:45699-DB] (15 of 15) [CRLA-733/2013] thus, on that count also, the impugned judgment deserves no interference by this Court in the instant appeal.
22. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case as well as in light of the aforementioned precedent laws, this Court does not find it a fit case warranting any interference by this Court.
23. Consequently, the present appeals are dismissed.
24. However, keeping in view the provision of Section 437-A Cr.P.C./Section 481 B.N.S.S, each of the surviving accused- respondents are directed to furnish a personal bond in a sum of Rs.25,000/- and a surety bond each 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 suriving accused-respondents, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court as and when called upon to do so.
25. All pending applications stand disposed of. Record of the learned Trial Court be sent back forthwith.
(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J SKant/-
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