Rajasthan High Court - Jodhpur
State Of Rajasthan vs Phoja Singh And Ors ... on 23 October, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:43509-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 32/1995
State Of Rajasthan
----Appellant
Versus
1. Phoja Singh S/o Shanker Singh,
2. Gurdeo Singh S/o Phoja Singh,
3. Jogindra Singh S/o Phoja Singh,
4. Balveer Singh S/o Phoja Singh,
All are R/o Chak 85 RB, P.S. Raisinghnagar, District
Sriganganagar.
5. Ram Singh S/o Fata Singh, R/o 4 FD at present 1 SKM, P.S.
Raisinghnagar, District Sriganganagar.
6. Bagicha Singh S/o Kartar Singh,
7. Mukhtiyar Singh @ Kala Singh S/o Kartar Singh,
Both are R/o 78 NP, at present 4 SKM, P.S. Raisinghnagar,
District Sriganganagar.
----Respondents
For Appellant(s) : Mr. C.S. Ojha, Public Prosecutor
For Respondent(s) : Ms. Twinkle Purohit, Amicus Curaie
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN Judgment 23/10/2024
1. This criminal appeal under Section 378 (iii) and (i) of the Cr.P.C. has been preferred by the appellant-State laying a challenge to the judgment of acquittal dated 03.03.1994, passed by the learned Additional District & Sessions Judge, Raisinghnagar in Sessions Case No.24/1992 (State Vs. Phosa Singh & Ors.), whereby the accused-respondents were acquitted of the offences under Sections 302/149/148/323/149, 326/149 & 452 of the Indian Penal Code.
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2. The matter pertains to an incident which had occurred on the intervening night between 08.11.1991 and 09.11.1991 and the present appeal has been pending since the year 1995.
3. Brief facts of the case, as placed before this Court by Mr. C.S. Ojha, learned Public Prosecutor appearing on behalf of the appellant-State are that the incident said to have happened on the intervening night between 08.11.1991 and 09.11.1991. The FIR was registered on the basis of a complaint given by Nikshtra Singh in which he stated that at Chak 3 SKM, they were at their Dhani in the fields along with his father Nihal Singh, his brothers Teja Singh and Sukhdev Singh and other family members. He further stated that at about 12:30 a.m., they heard the sound of gun shot being fired upon which they woke up and saw that their Dhani was attacked by the accused-respondents Gurdeo Singh, Balveer Singh, Bagicha Singh, Ram Singh, Kala Singh @ Mukhtiyar Singh and 10-15 other persons who were armed with weapons. They snatched away two guns which belonged to his father-in-law Balwant Singh. Gurdeo Singh caused a Gandasi blow to him with the intention to cause death. Teja Singh, Sukhdev Singh, Nihal Singh (father of the complainant) and Seema were also attacked by these attackers. His father Nihal Singh sustained injuries which were caused by the Gandasi blow. It was also written in the FIR that there was a land dispute which was going on between the parties and therefore, the accused persons attacked them with full preparation.
4. On the basis of the written report submitted by complainant
- Nikshtra Singh, an FIR bearing No.202/1991 was registered for the offences under Sections 307/382/452/324 & 323 of the Indian (Downloaded on 22/11/2024 at 09:41:37 PM) [2024:RJ-JD:43509-DB] (3 of 12) [CRLA-32/1995] Penal Code in the Police Station, Rawla, District Sriganganagar. Due to a head injury, Nihal Singh subsequently expired and, therefore, Section 302 IPC was added. After completion of the investigation, the police filed the charge-sheet against the seven accused-respondents namely - Phoja Singh, Balveer Singh, Jogindra Singh, Bagicha Singh, Ram Singh, Mukhtiyar Singh @ Kala Singh and Gurdeo Singh for the offence under Sections 302/307/323/324/ 326/452/147/148 & 149 of the Indian Penal Code and the trial commenced.
5. The learned trial Court framed the charges against the accused-respondents for the aforesaid offences.
6. During the course of trial, the testimonies of 10 prosecution witnesses were recorded and 38 documents were exhibited on behalf of the prosecution and 7 defence documents were exhibited on behalf of the accused-respondents. The accused-respondents were examined under Section 313 Cr.P.C., in which they 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 after considering the material and evidence placed on record, the learned Trial Court, acquitted the accused- respondents, vide the impugned judgment of acquittal dated 03.03.1994, against which the present appeal has been preferred on behalf of the appellant-State.
8. As per the report dated 21.08.2024 received by the learned Public Prosecutor, sent by the SHO, P.S. Rawla, the main accused- respondents Gurdeo Singh, Phoja Singh, Ram Singh and Bagicha Singh have already expired and the proceedings qua aforesaid (Downloaded on 22/11/2024 at 09:41:37 PM) [2024:RJ-JD:43509-DB] (4 of 12) [CRLA-32/1995] accused-respondents have already been abated vide order dated 11.09.2024, passed by this Court. The report submitted by the SHO concerned is already taken on record.
9. Mr. C.S. Ojha, learned Public Prosecutor appearing on behalf of the appellant-State submits that PW-1 - Shanker Lal was the Investigating Officer initially and he supported the Fard report and the Panchnama. PW-2 - Dr. Balwant Singh Sindhu is a crucial witness because he had supported the Parcha Bayan (Ex.-P/6) given by injured Nihal Singh and that it was drawn by the police authority and was signed by Dr. Balwant Singh Sindhu and he admitted his signatures on Ex.-P/6.
9.1 Learned Public Prosecutor has taken this Court to the statement of PW-4 - Dr. Mahesh Bhardwaj, who conducted the postmortem and had come to a conclusion that the head injuries so received caused paralysis on one part of the body, resulting in the death of Nihal Singh.
9.2 Learned Public Prosecutor has further taken this Court to the statement of PW-5 - Nikshtra Singh, who lodged the FIR in question and has given names of the accused persons in the said FIR. He has also stated regarding Nihal Singh being unconscious for a substantial time in the hospital.
9.3 Learned Public Prosecutor has also taken this Court to the statement of PW-6 - Rajendra Singh, who was the subsequent Investigating Officer and remained in the investigation until the weapons were recovered.
9.4 As per the learned Public Prosecutor, PW-7 - Sukhdev Singh is a crucial witness as he has supported the complete story of the prosecution and has categorically attributed the head injury to (Downloaded on 22/11/2024 at 09:41:37 PM) [2024:RJ-JD:43509-DB] (5 of 12) [CRLA-32/1995] accused-respondent Gurdeo Singh. He also narrated as to how the accused persons caused injuries upon injured Sukhdev Singh, Teja Singh and Seema.
9.5 Learned Public Prosecutor further submits while laying emphasis on PW-9 - Teja Singh who was an injured. PW-9 has also almost supported the story of the prosecution in the same manner. Though, PW-7 Sukhdev Singh and PW-9 Teja Singh have not supported the prosecution story with regard to the motive part of it as according to them the dispute between the parties was because of some property.
9.6 Learned Public Prosecutor also submits that there was consistency in the statements of the eye-witnesses supported by Parcha Bayan (Ex.-P/6). The Parcha Bayan in which the deceased before dying has narrated the whole story, would have an incriminating effect on the dying declaration, particularly when the same has been signed by the Doctor (who was a neutral authority) and the same is a crucial part which gives credibility to the prosecution story.
9.7. Learned Public Prosecutor further submits that on a bare reading of Parcha Bayan, it is evident that Nihal Singh has narrated the story almost on the same wavelength as the other eye-witnesses and has submitted that accused-respondents Gurdeo Singh, Balveer Singh and Mukhtiyar Singh @ Kala participated in the aggravated attack, whereas the head injury is specifically assigned by him to accused-respondent Gurdeo Singh. Learned Public Prosecutor, therefore, submits that the accused- respondent Gurdeo Singh was alone who made the Gandasi blow at the head of deceased Nihal Singh.
(Downloaded on 22/11/2024 at 09:41:37 PM) [2024:RJ-JD:43509-DB] (6 of 12) [CRLA-32/1995] 9.8 Learned Public Prosecutor also submits that even if there was a change in the motive on the eye-witnesses' account, then also credibility of the eye-witnesses could not be lost to the main incident which was consistent in the FIR, the depositions of the eye-witnesses and the Parcha Bayan (Ex.-P/6). Learned Public Prosecutor further submits that the injury report and the statement of the Doctor broadly support the prosecution story and even if there are minor lacunae, the same cannot result in the complete collapse of the case of the prosecution.
10. On the other hand Ms. Twinkle Purohit, learned Amicus Curiae, appearing for the accused-respondents while opposing the submissions made on behalf of the appellant-State, submits that there are discrepancies as the names of the accused-respondents in the FIR did not find exact presence in the depositions of the eye-witnesses and initially in the FIR, the motive was attributed to a land dispute but PW-7 Sukhdev Singh and PW-9 Teja Singh, who are the critical eye-witnesses have not supported the same theory of the prosecution.
10.1 Learned Amicus Curiae further submits that the appeal qua the principal accused-respondents Gurdeo Singh, Phoja Singh, Ram Singh and Bagicha Singh has already been abated as they have already expired.
10.2 Learned Amicus Curiae also submits that as per the injury report of Nihal Singh shows that the paralysis of the half portion was already there due to the head injury and when the deceased Nihal Singh was critically injured before succumbed to the injuries. In such a situation, the possibility of his ability to give proper statement is doubtful.
(Downloaded on 22/11/2024 at 09:41:37 PM) [2024:RJ-JD:43509-DB] (7 of 12) [CRLA-32/1995] 10.3 Learned Amicus Curiae also submits that the dates on which the Investigating Officer had initially taken the statements also cast the same kind of shadow on such testimonies although the learned Amicus Curiae is unable to refute that the key eye- witnesses were examined in proper time.
10.4 Learned Amicus Curiae further submits that once the appeal has abated qua the main accused persons, then also seeing the injury reports which are on record for PW-7, PW-9 and injured Seema, it comes out that the other injuries were meniscus and did not carry much weight for the purpose of taking ahead a common participation of 7 accused-respondents.
10.5 Learned Amicus Curiae further submits that neither the recovery report is supported by proper independent witnesses nor the site plan has properly been made. Thus, the prosecution story, which ought to have been beyond reasonable doubt, is not made out.
11. Heard learned counsel for the parties at length as well as perused the material available on record.
12. This Court after examining the peculiar factual matrix and testimonies of 10 prosecution witnesses and after seeing 38 Exhibits finds that the prosecution could not prove its case beyond all reasonable doubts.
13. This Court observes that the appeal has already been abated against the principal accused-respondents Gurdeo Singh, Phoja Singh, Ram Singh and Bagicha Singh whereas the incident itself is about 33 years old as it happened in the intervening night between 08.11.1991 and 09.11.1991 and the death of four (Downloaded on 22/11/2024 at 09:41:37 PM) [2024:RJ-JD:43509-DB] (8 of 12) [CRLA-32/1995] accused persons has a substantial impact in the consideration of the appeal.
14. This Court also observes that the learned Trial Court has given substantial reasons for arriving at the considered reason by observing that the Investigating Officer did not prove the land dispute as a motive and thus deprived the prosecution of a definite motive theory which could have supported the prosecution case and would have enabled the Court to arrive at a conclusion that it was a motivated crime which has taken place, even if the other depositions had minor contradictions regarding the same. Learned Trial Court has rightly observed that the disparity in examining the witnesses though not very relevantly pointed out but had a considerable impact upon the decision arrived at by the learned Trial Court. Further Ex.P/29 which is Naksha Mauka (site plan) also was not supported by the independent witnesses though it may not have a very widespread impact upon present consideration.
15. The learned Trial Court has also observed that the Parcha Bayan (Ex.P/6) in the shape of a dying declaration which could have been done in the presence of the Magistrate by following the proper procedure of law, could have given more credibility to the story of the prosecution.
16. This Court is of the opinion that looking into the overall perspective and the time elapsed as well as the four of the accused-respondents have expired during course of the pendency of the appeal, any reversal or second opinion regarding the conclusion arrived at by the learned Trial Court would not be justifiable.
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17. 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-:
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:(Downloaded on 22/11/2024 at 09:41:37 PM)
[2024:RJ-JD:43509-DB] (10 of 12) [CRLA-32/1995] "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;
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."
18. This Court further observes that the learned Trial Court passed the impugned judgment of acquittal of the accused- respondents for the offences under Sections 302/149/148/323/ 149, 326/149 & 452 of the Indian Penal Code, which in the given circumstances, is justified in law, 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 (Downloaded on 22/11/2024 at 09:41:37 PM) [2024:RJ-JD:43509-DB] (11 of 12) [CRLA-32/1995] 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 witness 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.
19. 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 judgments, and thus, on that count also, the impugned judgment deserves no interference by this Court in the instant appeal.
20. 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.
21. Consequently, the present appeal is dismissed.
22. However, while keeping in view the provision of Section 437-A Cr.P.C./Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the accused-respondents are directed to furnish a personal bond in a sum of Rs.25,000/- each and a surety bond each in the like amount, before the learned Trial Court, which shall (Downloaded on 22/11/2024 at 09:41:37 PM) [2024:RJ-JD:43509-DB] (12 of 12) [CRLA-32/1995] 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-respondents, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court as soon as they would be called upon to do so.
23. All pending applications stand disposed of. Record of the learned Trial Court be sent back forthwith.
24. This Court is thankful to Ms. Twinkle Purohit, who has rendered her assistance as Amicus Curiae on behalf of the accused-respondents in the present adjudication. (MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J 68-Ramesh/PoonamS/-
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