Rajasthan High Court - Jodhpur
Jeewa And Ors vs State on 19 August, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:31614-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 658/2003
1. Jeewa s/o Lakha (abated on 28.01.2022)
2. Kistura s/o Lakha
3. Babu Ram s/o Lakha
All r/o Gudamalani, District Barmer (Raj.).
(At present lodged in Central Jail, Jodhpur)
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. Manish Bhargava for
Mr. D.S. Udawat
For Respondent(s) : Mr. Ramesh Dewasi PP for the State.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE SUNIL BENIWAL Judgment Reserved on 15/07/2025 Pronounced on 19/08/2025 Per Dr. Pushpendra Singh Bhati, J:
1. The instant criminal appeal under Section 374 (2) Cr.P.C. has been preferred by the accused-appellants against the judgment of conviction and order of sentence dated 20.05.2023 passed by the learned Additional Sessions Judge (Fast Track), Balotra Camp Barmer ('Trial Court'), in Sessions Case No.83/2002 (old No.77/2000) - State of Rajasthan Vs. Jeewa & Ors.), whereby the accused-appellants have been convicted and sentenced as under:(Downloaded on 20/08/2025 at 09:49:50 PM)
[2025:RJ-JD:31614-DB] (2 of 17) [CRLA-658/2003] Conviction u/s. Sentence & In Default of Fine payment of fine further undergo 323/34 of I.P.C. Six month's R.I. a/w 15 days' R.I. fine of Rs.500/-
(each of the accused-appellants) 325/34 of I.P.C. Three years'R.I. One month's R.I. alongwith fine of Rs.1000/-
(each of the accused-appellants) 302/34 of I.P.C. Life Imprisonment One month's R.I. a/w fine of Rs.1000/-
(each of the accused-appellants) 1.2. At the outset, it has been brought to the notice of this Court that accused-appellant No.1-Jeewa had expired, as reflected in the order dated 28.01.2022, whereby, the instant appeal to the extent of the said deceased appellant was ordered to stand abated.
Furthermore, learned Public Prosecutor has produced before this Court the death certificate (dated 07.05.2008) of accused- appellant No.3-Babu Ram, reflected that he had expired on 26.04.2008, and thus, the present appeal qua the said deceased appellant as well, stood abated. The said death certificate is taken on record. Thus, the present appeal is surviving only qua surviving accused-appellant No.2-Kistura, and the present adjudication is being made accordingly.
2. The matter pertains to an incident which had occurred in the year 2000 and the present appeal has been pending since the year 2003.
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3. As reflected from the record, a written report (Ex.P.1) was presented by the complainant, on 12.09.2000, regarding an incident which occurred on 11.09.2000, wherein sixteen buffaloes of accused-Jeewa were grazing in the field of Savda son of Bagwana Meghwal where the complainant was caretaking. On the next morning the complainant confined the said buffaloes in certain Bhakharpura Gate. On the same date, when the complainant was returning to his Dhani from the field at around 8:00 p.m., on the way he saw the accused-appellants along with one unkonwn man and a woman coming with the said buffaloes. Complainant asked the accused as to who is carrying the said buffaloes. Upon the same, the accused asked his name and said that those were the same buffaloes which were confined by the him in the gate, and while saying so, the accused persons (armed with lathis and axe) surrounded complainant and started beating him. It was alleged that the injuries were received on right hand's wrist, right hand's elbow, left hand and left leg. Upon hearing the cries of the complainant, other villagers namely, Bheraram & Bagga Khan, Himmataram came to rescue him; however, the said villagers were also subjected to beatings by the accused persons. 3.1. As per the aforesaid report, the said incident resulted into serious medical condition of Bheraram and Bagga Khan, upon which they were taken to the Gudamalani Hospital by Mukhiya Vikram Singh, Surataram and Sujanaram.
3.2. On the basis of the aforementioned report, the police registered a case against the accused persons under Sections 341, 143 & 323 IPC and started investigation. During the course of (Downloaded on 20/08/2025 at 09:49:50 PM) [2025:RJ-JD:31614-DB] (4 of 17) [CRLA-658/2003] investigation, Bagga Khan died under treatment and thus, the police filed a charge-sheet under Sections 302, 307, 325 & 323/34 IPC; owing to the nature of crime involved, the matter was committed for Sessions Trial, from where the case was transferred to the learned Trial Court for the necessary Trial. 3.3. During the course of trial, the statements of 22 witnesses (P.W. 1 to P.W. 22) were recorded, documents (Ex.P.1 to 35) were exhibited on behalf of the prosecution; whereafter, the accused- appellant was examined under Section 313 Cr.P.C., in which he pleaded innocence and false implication in the criminal case in question.
3.3. After conclusion of the trial, the learned Trial Court, convicted and sentenced the accused-appellants, as above, vide the impugned judgment of conviction and order of sentence dated 20.05.2023; against which, the present appeal has been preferred by the accused-appellants.
4. Mr. Manish Bhargav, learned counsel appearing on behalf of the accused-appellant, submitted that there was no direct conflict or confrontation between the accused-appellants and the deceased Bagga Khan. It was urged that the complainant's version, even if taken on face value, does not attribute any specific role to the present appellant qua the deceased. Learned counsel further submitted that as per the testimony of P.W.12 - Dr. Phusaram, who had medically examined the injured persons, and the injury report (Ex.P.13), the deceased Bagga Khan was found to have sustained only a single injury on the head. It was thus contended that the medical evidence does not corroborate (Downloaded on 20/08/2025 at 09:49:50 PM) [2025:RJ-JD:31614-DB] (5 of 17) [CRLA-658/2003] the prosecution's allegation of multiple assaults upon the deceased, and at the highest, the case would fall within the ambit of a lesser offence.
4.1. Learned counsel further argued that this contradiction between the ocular and medical evidence strikes at the root of the prosecution case. While the prosecution witnesses, particularly the eye-witnesses P.W. 7, deposed that multiple injuries were caused to the deceased Bagga Khan during the incident, the medical evidence, as reflected from the deposition of P.W.12 - Dr. Phusaram and the injury report (Ex.P.13), clearly records only a single injury on the head of the deceased. It was thus contended that the exaggeration in the ocular version, when compared to the unimpeachable medical record, creates a reasonable doubt in the prosecution story, which ought to enure to the benefit of the accused-appellant.
4.2. Learned counsel further submitted that the prosecution has failed to establish the element of common intention under Section 34 IPC. It was urged that even as per the depositions of the prosecution witnesses, the fatal head injury was attributed to accused-appellant Jeewa alone, and not to the present appellant- Kistura. In such circumstances, fastening the liability of murder upon the present appellant, by invoking the doctrine of common intention, is wholly unjustified. Learned counsel emphasized that in absence of cogent evidence demonstrating a pre-arranged plan or meeting of minds to commit the alleged offence, the application of Section 34 IPC is legally untenable.
(Downloaded on 20/08/2025 at 09:49:50 PM) [2025:RJ-JD:31614-DB] (6 of 17) [CRLA-658/2003] 4.3. It was further submitted that there was no prior concert or pre-arranged plan amongst the accused persons to cause the death of Bagga Khan. The altercation arose suddenly when the complainant party questioned the accused persons regarding the buffaloes, and in the spur of the moment, a scuffle ensued. In such circumstances, fastening joint liability under Section 34 IPC is unwarranted, particularly when the fatal injury is specifically attributed to accused Jeewa alone, who has since expired. 4.4. Learned counsel further pointed out that there is no specific and consistent attribution of injuries to the present appellant. Though P.W.7, in his deposition, stated that accused-appellant Kistura had given a lathi blow during the course of the incident, such assertion is not supported by the medical evidence on record. The injury reports and the testimony of P.W.12 - Dr. Phusaram do not reflect any corresponding injury which could be linked to the alleged act of the appellant. This inconsistency, it was urged, casts serious doubt on the veracity of the prosecution version qua the present surviving appellant.
4.5. Learned counsel also assailed the credibility of prosecution witnesses P.W.10 - Pata and P.W.16 - Shivji, contending that they are "created witnesses." It was urged that neither of them was named in the original written report (Ex.P.1), nor were they shown to be present at the place of occurrence in the earliest version of the prosecution. Their subsequent introduction during the course of investigation, without any cogent explanation, raises a strong inference that they were planted to strengthen the prosecution (Downloaded on 20/08/2025 at 09:49:50 PM) [2025:RJ-JD:31614-DB] (7 of 17) [CRLA-658/2003] case. Hence, their testimonies cannot be relied upon to fasten criminal liability upon the present appellant. 4.6. Learned counsel further submitted that the alleged recovery of the lathi at the instance of the appellant is wholly suspicious and cannot be relied upon. It was pointed out that no independent witness has corroborated the recovery proceedings, and the alleged recovery memo suffers from material infirmities. In absence of reliable corroboration, such recovery loses its evidentiary value and cannot be used to implicate the present appellant.
4.7. Learned counsel lastly submitted that the entire incident arose out of a sudden scuffle, which ensued only when the complainant asked the accused persons as to who was taking away the buffaloes. The occurrence was thus spontaneous, without any premeditation or prior enmity, and in the heat of passion. It was further contended that the incident took place in the heat of passion, without the accused-appellant having taken undue advantage or having acted in a cruel or unusual manner. In this backdrop, learned counsel urged that the essential ingredients for the offence of "murder" under Section 302 IPC are not satisfied, and at the most, the case would fall within Section 304 Part II IPC, as the accused may have had the knowledge that such injury could be likely to cause death, but there was no intention to cause death. In such circumstances, the case clearly falls within the ambit of Exception 4 to Section 300 IPC, thereby reducing the offence from murder under Section 302 IPC to culpable homicide not amounting to murder under Section 304 Part II IPC. (Downloaded on 20/08/2025 at 09:49:50 PM) [2025:RJ-JD:31614-DB] (8 of 17) [CRLA-658/2003] 4.8. Learned counsel also drew the Court's attention to the injury report of accused-appellant Jeewa (Ex.D.3), which demonstrates that even he had sustained injuries during the course of the occurrence. It was urged that this fact clearly indicates that the incident was not a one-sided assault by the accused party, but rather a sudden scuffle in which both sides received injuries. The presence of injuries on the accused lends further weight to the defence version that the case falls within the purview of Exception 4 to Section 300 IPC, and thus the conviction under Section 302 IPC is unsustainable.
5. Per Contra, Mr. Ramesh Dewasi, learned Public Prosecutor opposed the submissions advanced on behalf of the accused- appellants and submitted that P.W.2 - complainant who categorically deposed that when he was returning to his Dhani at around 8:00-9:00 p.m., he saw accused Jeewa, Babu, Kistura and Jeewa's wife taking away the buffaloes. Upon his enquiry, accused-appellant Kistura asked his name, and on being told that he was Varjogaram, Kistura struck him on his leg with a gedi, whereafter the other accused surrounded him and started beating him. When he raised a hue and cry, P.W.7 Himataram, P.W.6 Bheraram and the deceased Bagga Khan came forward to intervene, but they too were assaulted by the accused persons. In the course of this scuffle, Bagga Khan sustained head injuries, as a result of which he later succumbed. Learned Public Prosecutor urged that this ocular testimony, corroborated by other witnesses, firmly establishes the role and participation of the present appellant in the crime.
(Downloaded on 20/08/2025 at 09:49:50 PM) [2025:RJ-JD:31614-DB] (9 of 17) [CRLA-658/2003] 5.1. Learned Public Prosecutor further relied upon the testimony of P.W.3, an independent witness, who corroborated the version of P.W.2 - complainant. P.W.3 deposed that on the day of the incident, accused Jeewa, Babu Ram and Kistura took out the buffaloes from the gate, and thereafter, on hearing hue and cry from some distance, he reached the place of occurrence. There he saw the accused-appellants beating deceased Bagga Khan, Varjogaram, Bheraram and Himtaram with lathis. It was submitted that the testimony of P.W.3, being that of an independent witness with no animus against the accused, lends strong corroboration to the prosecution version and fortifies the finding of guilt recorded by the learned Trial Court.
5.2. Learned Public Prosecutor also emphasized the testimony of P.W.6 - Bheraram, who was himself injured in the occurrence. He categorically stated that accused Jeewa struck the deceased Bagga Khan on the head with a lathi, which injury ultimately proved fatal. Being an injured eyewitness, his testimony carries great evidentiary value and cannot be discarded lightly. Similarly, P.W.7 - Himtaram, another injured eyewitness, corroborated the version of the prosecution and supported the account of P.W.2, P.W.3, and P.W.6. It was submitted that the chain of evidence through multiple injured and independent eyewitnesses is consistent, credible, and firmly establishes the participation of the accused persons, including the present appellant Kistura. 5.3. Learned Public Prosecutor lastly drew attention to the deposition of P.W.7 - Himtaram, who specifically stated that all the accused persons gave beatings to the deceased, and further, that (Downloaded on 20/08/2025 at 09:49:50 PM) [2025:RJ-JD:31614-DB] (10 of 17) [CRLA-658/2003] accused-appellant Kistura himself gave a beating to him (P.W.7) on his head. This categorical assertion by an injured eyewitness firmly establishes the participation of the present appellant in the incident. Being an injured witness, his testimony is entitled to great weight and inspires confidence, thereby demolishing the defence plea of false implication.
5.4. Learned Public Prosecutor also drew support from the depositions of P.W.8 - Tejaram, P.W.10 - Pata, P.W.11- Surataram corroborated the prosecution version. These witnesses stated that they had seen the accused persons assaulting the complainant party, and their testimonies are in harmony with those of P.W.2, P.W.3, P.W.6 and P.W.7. It was urged that the presence of such independent witnesses further fortifies the prosecution case and rules out the possibility of false implication. 5.5. Learned Public Prosecutor further relied upon the medical evidence on record. Referring to Ex.P.13 - the injury report of deceased Bagga Khan - and the testimony of P.W.12 - Dr. Phusaram, it was pointed out that the deceased had indeed sustained a head injury, which corroborates the version of the injured eyewitnesses that Jeewa struck him on the head. 5.6. Learned Public Prosecutor further relied upon the testimony of P.W.22 - Dr. M.P. Joshi, who conducted the post-mortem examination of deceased Bagga Khan. He categorically deposed that the deceased had sustained injuries on the head, resulting in multiple fractures on the skull, along with internal injuries. In his opinion, the cause of death was shock as a result of the said head (Downloaded on 20/08/2025 at 09:49:50 PM) [2025:RJ-JD:31614-DB] (11 of 17) [CRLA-658/2003] injury. Thus, the ocular version of the eyewitnesses stands fully corroborated by the medical evidence, and there is no contradiction between the two.
5.7. Learned Public Prosecutor further submitted that P.W.16 - Shivji, in his deposition, categorically stated that accused- appellant Jeewa had earlier threatened him, saying that he would kill either Gopa, Varjoga or Bagga if he happened to meet them. This prior threat clearly establishes the motive of the accused, thereby ruling out the defence plea of a sudden quarrel or scuffle and lending assurance to the prosecution case of a concerted assault on the deceased.
5.8. Learned Public Prosecutor, on the strength of the aforesaid ocular as well as medical evidence, contended that the present case squarely falls within the ambit of Section 302 IPC. It was urged that the accused-appellants, acting in furtherance of their common intention, inflicted a fatal head injury on deceased Bagga Khan, which has been medically proved to be the cause of death. The consistency in the testimony of the injured eyewitnesses, independent witnesses and the medical experts leaves no scope for doubt. Thus, the offence cannot be mitigated to any lesser charge under Exception 4 to Section 300 IPC, and the conviction under Section 302 IPC is fully justified.
6. Heard learned counsel for the parties as well as perused the record.
7. This Court observes that the present case arises out of an occurrence dated 11.09.2000, wherein the buffaloes of accused (Downloaded on 20/08/2025 at 09:49:50 PM) [2025:RJ-JD:31614-DB] (12 of 17) [CRLA-658/2003] Jeewa were allegedly found grazing in the agricultural field of one Savda. Complainant (PW-2), who was working as a caretaker, on the following morning confined the buffaloes near Bhakharpura Gate. Later, around 8:00 p.m., while returning to his dhani, PW-2 came across the accused persons along with the said buffaloes. An altercation ensued, during which PW-2 was allegedly surrounded and beaten. On hearing the commotion, Bheraram (PW-6), Himtaram (PW-7) and Bagga Khan (since deceased) reached the spot. They too were allegedly assaulted, and in the course of the incident, deceased Bagga Khan sustained a head injury, to which he later succumbed despite medical treatment.
8. This Court further observes that the prosecution has relied upon the testimonies of PW-2 Varjogaram, PW-6 Bheraram, PW-7 Himtaram, PW-8 Tejaram, and the medical evidence of PW-22 Dr. M.P. Joshi, who conducted the post-mortem of deceased Bagga Khan. Their statements indicate that the entire incident occurred in the backdrop of a quarrel over grazing of buffaloes in field where the complainant was caretaking and the said buffaloes being taken away by accused-appellants.
9. This Court finds that the medical evidence, particularly the testimony of PW-22 and post-mortem report Ex.P.35, confirms that the deceased died due to head injuries resulting in multiple skull fractures. The ocular account and medical evidence on this point are broadly consistent.
10. However, the prosecution has not led any clear evidence as to how the scuffle actually began. While PW-2 has stated that he (Downloaded on 20/08/2025 at 09:49:50 PM) [2025:RJ-JD:31614-DB] (13 of 17) [CRLA-658/2003] questioned the accused persons when they were taking away the buffaloes, there is no consistent version as to what triggered the physical fight. The witnesses only narrate events after the quarrel had already started.
11. This gap in the chain of events indicates that the incident may have been spontaneous and without premeditation ot planing. Furthermore, there was no anticipation that the complainant party and the accused would encounter each other. Significantly, even accused Jeewa sustained injuries (Ex.D.3), showing that it was a mutual scuffle rather than a pre-planned assault. There is also nothing on record to suggest any prior concert or pre-arranged plan on the part of the accused to cause injuries to the complainant party.
12. This Court further observes that while the prosecution witnesses have broadly deposed that all the accused persons participated in the incident, there is no consistent or specific evidence attributing the fatal head injury, which led to the death of Bagga Khan, to accused-appellant Kistura. In absence of a specific attribution, the individual liability of the surviving accused could not be fastened, particularly when the other co-accused had already expired during the pendency of the proceedings. Moreover, the testimony of PW-6 and PW-7 only refers to Kistura inflicting blows during the scuffle, but not that he caused the head injury of the deceased. On the contrary, PW-6 has categorically stated that it was Jeewa who struck the deceased on the head. In view of the absence of any premeditated or concerted action, the (Downloaded on 20/08/2025 at 09:49:50 PM) [2025:RJ-JD:31614-DB] (14 of 17) [CRLA-658/2003] application of Section 34 IPC to fasten joint liability on Kistura is not legally sustainable.
13. This Court is also conscious of the Judgment of the Hon'ble Supreme Court in Jasdeep Singh @ Jassu vs. State of Punjab (Criminal Appeal No.1584 of 2021 (@SLP (CRL.) No. 11816 of 2019, decided on 07.01.2022), relevant portion whereof reads as under:
"37. Under the Penal Code, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had a common intention to commit the acts or if the offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, then also he can be vicariously responsible. Under the Penal Code, two sections, namely, Sections 34 and 149, deal with them circumstances when a person is vicariously responsible for the acts of others.
38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under section 34 IPC, the evidence and (Downloaded on 20/08/2025 at 09:49:50 PM) [2025:RJ-JD:31614-DB] (15 of 17) [CRLA-658/2003] documents on record acquire a great significance and they have to be very carefully scrutinized by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent."
14. Thus it is settled that for the application of Section 34 IPC, there must be proof of a pre-arranged plan and the criminal act must have been committed in furtherance of the common intention of all. The common intention must be anterior in point of time to the act constituting the offence and must be shared by all the accused. In the present case, the incident occurred suddenly when the complainant questioned the accused persons regarding the buffaloes. There is nothing on record to indicate that the accused had come prepared with a prior design to assault the complainant party or to cause the death of Bagga Khan.
15. In absence of proof of prior concert or any cogent material to show that accused-appellant Kistura shared a common intention with Jeewa to cause the death of Bagga Khan, the invocation of Section 34 IPC is not legally sustainable. The conviction of Kistura under Section 302/34 IPC, therefore, cannot be upheld. His culpability has to be examined solely on the basis of his individual acts. Further, keeping in mind his role and participation in the incident as reflected from the record, and in view of the absence of any prior concert or meeting of minds, the conviction qua the surviving accused-appellant under Sections 325/34 and 323/34 IPC deserve to be altered to that under Sections 325 and 323 IPC. (Downloaded on 20/08/2025 at 09:49:50 PM) [2025:RJ-JD:31614-DB] (16 of 17) [CRLA-658/2003]
16. Thus, in view of the above, the present appeal is partly allowed. Accordingly, the impugned judgment of conviction and order of sentence dated 20.05.2023 passed by the learned Additional Sessions Judge (Fast Track), Balotra Camp Barmer, in Sessions Case No.83/2002 (old No.77/2000) - State of Rajasthan Vs. Jeewa & Ors.), is modified by altering/substituting the conviction of the surviving accused-appellant-Kistura from Sections 302/34, 325/34 & 323/34 IPC to Sections 325 & 323 IPC. As regards the sentence to be ordered for such conviction, it is apparent that the accused-appellant Kistura already remained in custody from 17.09.2000 to 18.06.2003 and considering the totality of the circumstances and custody period already undergone by him, the sentence for the charges under Sections 323 and 325 IPC is reduced to the period already undergone by the surviving accused-appellant in this case, which in the opinion of this Court is sufficient to meet the ends of justice. The surviving accused-appellant is on bail; he need not surrender; his bail bonds stand discharged.
17. Keeping in view the provisions of Section 437-A Cr.P.C. / Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the surviving accused-appellant- Kistura is directed to furnish a personal bond of Rs. 25,000/- and a surety bond of like amount before the learned Trial Court, which shall remain effective for a period of six months. The bond shall ensure that in the event of filing of a Special Leave Petition against this judgment or for grant of leave, the said accused-appellant shall appear before the Hon'ble Supreme Court upon receipt of notice.
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18. All pending applications stand disposed of. The record of the learned Trial Court be returned forthwith.
(SUNIL BENIWAL),J. (DR.PUSHPENDRA SINGH BHATI),J. SKant/-
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