Rajasthan High Court - Jaipur
Chavala vs State on 15 January, 2020
Bench: Sabina, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 434/1988
1. Chavala son of Khushi Khan
2. Ismail son of Chavla
both by caste Mev, resident of Meena Ka Bas Badoda Meo,
District Alwar.
----Appellant
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Mr. Rahul Kamwar with
Mr. Amit Yadav
For Respondent(s) : Ms. Rekha Madnani for the State
HON'BLE MRS. JUSTICE SABINA
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment 15/01/2020 Appellants have filed this appeal challenging the judgment/order dated 18.11.1988 passed by the trial court, whereby they were convicted and sentenced qua offence punishable under Section 302 of Indian Penal Code, 1860.
Learned State Counsel has submitted that so far as appellant No.1 Chavala is concerned, he has died during the pendency of the appeal. Hence, the appeal qua the appellant no.1 Chavala abates and is disposed of, accordingly.
Heard the appeal qua appellant No.2 Ismail. Prosecution story, in brief, is that on 16.12.1985 appellant Ismail and his co-accused had attacked the complainant party. Appellant No.2 Ismail was armed with an axe. As per the (Downloaded on 18/01/2020 at 08:58:43 PM) (2 of 5) [CRLA-434/1988] prosecution version, the appellant No.2 had inflicted injury to the deceased Ruda as well as the injured.
After the completion of investigation and necessary formalities, challan was presented against the appellants and eight other accused. Charges were framed against the accused under Sections 147, 148, 323/149, 324/149, 302 and 302/149 IPC.
In order to prove its case, during trial, prosecution examined fifteen witnesses.
Accused when examined under Section 313 Cr.P.C., prayed that they were innocent and had been falsely involved in this case.
Trial court vide judgment dated 18.11.1988 ordered the acquittal of eight accused and so far as appellants are concerned, they were convicted and sentenced qua offence punishable under Section 302 IPC. Appellants were acquitted of the charges framed against them under Sections 323/149 and 324/149 IPC.
Learned counsel for the appellants has submitted that so far appellant no.2 Ismail is concerned, he has been falsely involved in this case. Appellant no.2 Ismail had also suffered injuries in the incident. However, he had not inflicted any injury to the deceased. Injury No.2 on the person of deceased is attributed to appellant no.2 Ismail, whereas Dr. P.S. Agarwal P.W.15 in his cross-examination has stated that the injury no.2 on the person of deceased could be a result of injury no.3, if injury no.3 had been inflicted while the victim was lying down. It is the case of the prosecution witnesses that after accused Noor Mohammad had inflicted injury to Ruda, he had fallen down and thereafter, appellant No.2 Ismail and Chavala had inflicted injuries to the deceased.
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(3 of 5) [CRLA-434/1988] Learned State Counsel has opposed the appeal. Present case relates to murder of Ruda. The trial court while ordering the acquittal of the eight accused, has held that so far accused Noor Mohammad is concerned, he was entitled to be given benefit of right of self defence. So far as accused Noor Mohammad is concerned, he is attributed injury no.1, which is on the left parietal region of the deceased.
Dr. P.S. Agarwal P.W.15 deposed that on 17.12.1985 he had conducted Post Mortem Examination on the dead body of Ruda and proved the Post Mortem Examination Report Exhibit- P/37.
A perusal of the Post Mortem Examination Report Exhibit-P/37 reveals that the deceased had suffered following injuries:-
"External Injuries-
1. Incised wound 4cm x 1½ cm x muscle deep on left parieto - occipital region with blood oozing oblique.
2. Haematoma 6cm x 2cm on left temporal region. Just above left ear.
3. Haematoma 8cm x 5cm area on right side scalp Temporal, parieto-occipital region, bruise 6cm x 2cm.
4. Abrasion 3cm x 2cm on left leg in mid.
5. Bruise 8cm x 2cm vertical oblique on left scapular.
6. Bruise 7cm x 2cm near injury no.5. Internal injuries on opening of body-
1. Sub. Scalp blood clots under external injuries nos. 1, 2 and
3.
2. Fracture of left temporal bone extending upto parietal bone under external injury no.2 with Sub. scalp blood clots.
3. Fracture of right temporal bone upto occipital bone and (widening of occipito-parieto suture) with blood oozing under external injury no.3 with Sub. Scalp blood clots pressing over brain.
4. Sub. Cutaneous and muscular blood clots under external injury nos. 4, 5 and 6."
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(4 of 5) [CRLA-434/1988] Cause of death of the deceased was due to head injury with fractures of skull, compression of brain and haemorrhage. All the injuries were held to be ante mortem in nature.
So far as injury no.1 on the person of deceased is concerned, the same is attributed to accused Noor Mohammad. The trial court has acquitted accused Noor Mohammad by giving him benefit of right of self defence. So far as appellants are concerned, it has been noticed by the trial court that the appellants had inflicted injuries to the deceased while he had fallen down and due to this reason, the appellants were not extended the right of self defence. The complainant appeared during trial as P.W.12 and in his cross-examination, he deposed that Chavala and Ismail had inflicted injuries to Ruda while he was lying on the ground. So far as Ismail is concerned, he is attributed injury no.2 to the deceased. So far as the said injury is concerned, Dr. P.S. Agarwal P.W.15 has deposed in his cross-examination that there was no external injury mark vis-a-vis., injury no.2. He further deposed that in case, the victim is lying down and injury no.3 (attributed to accused Chavala) is inflicted to the victim, then injury no.2 could have been consequently suffered by him. Thus, in view of the medical evidence, injury no.2 alleged to have been suffered by the deceased at the hands of appellant no.2 Ismail is rendered doubtful.
It is a case where both the sides had suffered injuries and one of the main accused Noor Mohammad has been extended benefit of right of self defence by the trial court. Accused Chavala, who is attributed injury no.3 to the deceased has died during the pendency of the appeal. After carefully perusing the ocular as well as medical evidence, we are of the considered opinion that so far (Downloaded on 18/01/2020 at 08:58:43 PM) (5 of 5) [CRLA-434/1988] as appellant no.2 Ismail is concerned, he is entitled to be given benefit of doubt, in view of the medical evidence available on record.
It is a settled proposition of law that the prosecution has to plead and prove its case against the accused beyond the shadow of reasonable doubt. Whenever, doubt occurs in the prosecution story, the benefit of same has to be extended to the accused. In the present case, the prosecution has failed to establish its case against appellant no.2 Ismail beyond the shadow of reasonable doubt and hence, he is liable to be acquitted by giving him benefit of doubt.
Accordingly, the impugned judgment/order dated 18.11.1988 qua appellant no.2 Ismail are set aside. Consequently, appellant No.2 Ismail is acquitted of the charge framed against him under Section 302 IPC.
Appeal qua appellant no.2 Ismail stands allowed. Keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant no.2 Ismail is directed to forthwith furnish a personal bond in the sum of Rs. 25,000/-, and surety bond of the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months with the stipulation that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant no.2 Ismail on receipt of notice thereof, shall appear before the Supreme Court.
(NARENDRA SINGH DHADDHA),J (SABINA),J
Anil Makwana /11
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