Rajasthan High Court - Jodhpur
Babu vs State Of Rajasthan on 9 June, 2017
Bench: Gopal Krishan Vyas, Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 60 / 1992
Babu S/o Khuma, by caste Moongia Bagri, Resident of Saroopganj,
District Sirohi (Raj.)
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. B.S. Rathore.
For Respondent(s) : Mr. Deepak Choudhary, PP.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE ARUN BHANSALI
JUDGMENT
09/06/2017 In this criminal appeal filed under Section 374 (2) Cr.P.C., accused appellant, Babu S/o Khuma, has assailed the validity of the judgment dated 22nd February, 1992 passed by learned Sessions Judge, Sirohi, in Session Case No.11/1989, by which the learned trial court convicted the accused appellant for offences under Section 302 and sentenced him for life imprisonment with a fine of Rs.100/-, with default stipulation to further undergo one month's rigorous imprisonment.
(2 of 8) [CRLA-60/1992] Succinctly stated the facts of the case are that an FIR was lodged by the complainant, Smt. Jamna (PW.7) on 11.12.1988 at Police Station Rohida, alleging therein that she along with her husband, Lukia (deceased) was going to her maternal home at Kamboi. Ranki (PW3), Jamna W/o Vaja (PW.2) were also joined them. At about 04.00 PM, when they reached near river, at that time, accused Babu also came there in his bullock cart and Sita was also accompanying him. Iron pipes were loaded in his bullock cart. The said bullock cart was plied by Babu. Deceased, Lukia, asked Babu to give him match stick, which accused Babu refused, on which some hot altercation took place. In the said scuffle, accused Babu inflicted injury by "Jatru" (a stick/wood which is used in the bullock cart) on the person of Lukia, on which Lukia fell down. Accused Babu made repeated blows on the person. Thereafter, accused Babu, Sita went away with their bullock cart, while complainant (PW.7- Jamna) was sitting there. After about half hour, Babu and Sita came there after unloading the bullock cart. Accused Babu and Sita boarded her husband in the bullock cart and went to village Vatera. Jamna also accompanied with them. When they reached Village Vatera, Lukia found dead. Accused Babu and Sita left the place while leaving their bullock cart near Gram Panchayat. The said incident was narrated by the complainant to her father-in-law Udia (PW.5) who met her near Vatera Circle. Udai also saw the dead body of his son and informed to the Sarpanch.
On this, the FIR (Ex.P/20) was registered at 07.10 PM and investigation commented. The police registered FIR against the (3 of 8) [CRLA-60/1992] accused persons for the offence u/s 302 of IPC. Thereafter, after conducting usual investigation, the dead body of the deceased was sent for postmortem and postmortem report (Ex.P/9) was obtained and the dead body was handed over to the father of deceased for cremation.
During investigation, the accused appellant Babu was arrested vide Ex.P/13 on 12.12.1988 and upon his information (Ex.P/14) the weapon of offence i.e. "Jatru" was recovered vide Ex.P/12). The weapon of offence i.e. "Jatru", blood stained clothes of deceased and blood smeared soil were sent for chemical examination to the FSL and FSL report (Ex.P/15) was received.
The investigation of the FIR culminated into the submission of a charge sheet against the accused appellant for the offence u/s 302 of IPC in the court of learned Chief Judicial Magistrate, Sirohi, from where the case was committed to the court of Sessions Court, for trial.
Thereafter on 09.07.1990 the learned trial court framed charge against the accused appellant for offence u/s 302 of IPC, which he denied and prayed for trial.
In the trial, in support of prosecution case, statements of 13 witnesses were recorded. After completion of evidence of prosecution, statements of the accused appellant were recorded u/s 313 Cr.P.C., in which he denied the allegations levelled by the prosecution witnesses, however, in defence no evidence was led by him.
The learned trail court thereafter heard final arguments and after evaluating the evidence led by the parties, vide its judgment (4 of 8) [CRLA-60/1992] dated 22.02.1992 proceeded to convict the accused appellant for the offence under Section 302 IPC and sentenced him for life imprisonment. The said judgment is under challenge in this appeal.
At the threshold, learned counsel for the appellant argued that witnesses examined by the prosecution, except PW.7- Jamna, turned hostile and did not support the prosecution case. Learned counsel for the accused appellant argued that PW.7 in her cross examination specifically admitted that prior to the incident she otherwise was not knowing accused Babu, and that her second husband, namely, Gopi, apprised her that it was accused Babu, who had inflicted injury to Lukia, therefore, the learned trial court has seriously erred in convicting the accused appellant.
It is further submitted that PW.2, Jamna W/o Vaja, PW.3 Ranki W/o Vaja, PW.5 Hakma, turned hostile and did not support the prosecution case. While inviting our attention towards statement of PW.5, Udia (father of the deceased) it is submitted that his evidence is hearsay evidence as he was apprised about the incident by Jamna (PW.7), thus, the learned trial court has erred in relying upon the testimony of PW.5. He further argued that testimonies of PW.5 Udia and PW.7 Jamna, do not get any corroboration from the medical evidence, which also goes to falsify the case. Learned counsel for the appellant thus submitted that the accused appellant be acquitted from the offences.
Per contra, learned Public Prosecutor vehemently opposed submissions made by the learned counsel for the appellant and submitted that the trial Court has not committed an error so as to (5 of 8) [CRLA-60/1992] hold appellant guilty because the complainant PW.7 wife of the deceased categorically stated before the Court that on the date of incident, hot talks took place between accused Babu and her husband as accused Babu refused to provide him match stick, and Babu inflicted injury on the person deceased by "Jatru" (a stick/wood which is used in the bullock cart), which was recovered on the basis of information given by the accused himself, therefore, it cannot be said that prosecution has failed to prove its case beyond reasonable doubt.
Learned Public Prosecutor further argued that PW.6, Dr. Jagdish Singh Shekhawat, who was posted as Medical Officer at Govt. Hospital, Rohida who conducted postmortem on the request of the police. According to Dr. Jagdish Singh Shekhawat, the deceased died as a result of brain hemorrhage due to heady injury, which injury was caused before death. Thus, from the medical evidence, it is clear that on account of infliction of injury on the head of deceased, death was caused. The argument of the learned Public Prosecutor is that prosecution has proved its case beyond reasonable doubt by leading trustworthy evidence, therefore, the instant criminal appeal may kindly be dismissed.
After hearing learned counsel for the parties, we have considered the finding in the light of evidence on record. It is worthwhile to observe here that except PW.7 Smt. Jamna, other eyewitnesses turned hostile and did not support the prosecution case. We have perused the cross-examination of PW.7 Smt. Jamna, which is not corroborated by any other evidence. As per cross-examination PW.7 Smt. Jamna (wife of deceased) it is (6 of 8) [CRLA-60/1992] obvious that no identification parade was conducted by the investigating officer, so also, it is specifically stated by the witness PW.7 that, "eSa okds ls igys eqyfte ckcw dks ugha tkurh FkhA esjs ifr dks ekjihV dj eqyfte l:ixat dh vksj Hkx x;k FkkA eqyfte dks ?kVuk ds ckn eSaus vkt gh ns[kk gSA iqfyl us esjs }kjk eqyfte dh "kuk[rxh dk;Zokgh ugha djokbZA esjs lkFk esjk nwljk ifr lkFk esa vk;k gSA ftldk uke xksih gSA vkt esjs ifr us Hkh dgk Fkk fd ekjus okyk eqyfte ckcw gSA esus s esjs ifr xksih ds dgus ls gh eqyfte ckcw dks igpkuk gSA eSaus esjs ifr dks tc ekjk ml oDr eSaus eqyfte dks ugha igpkuk FkkA eSa Hkksyh gwaA ekSds ds LFky ns[kus ds fy;s iqfyl eq>s lkFk esa ys xbZ FkhA >xM+k gqvk rc eSa ogh ij csgks"k gksdj fxj iM+h FkhA eq>s fQj ogka ls jksfgMk vLirky es ys x;s tgka ij esjk nks fnu vLirky esa bZykt pyk vkSj eq>s rhljs fnu gks"k vk;kA"
We have also considered the statements of PW.3- Ranki W/o Vaja Ji, who in her statements recorded before the trial court specifically stated that she does not know the accused and she has not seen the accused Babu quarrelling with deceased Lukia. Thus, in our considered opinion, in the instant case the prosecution has failed to prove its case beyond reasonable doubt against the appellant and benefit whereof deserves to be extended to the accused appellant.
As per verdict judgments of Hon'ble Apex Court in the cases of Jose @ Pappachan Vs. The Sub-Inspector of Police, Koyilandy & Ors. reported in (2016) 10 SCC 519 has held as infra: -
"56. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the (7 of 8) [CRLA-60/1992] grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or nonexistent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted"
In view of above, the instant criminal appeal is hereby allowed. The conviction and sentence passed against the accused appellant vide judgment dated 22.02.1992 by the learned Sessions Judge, Sirohi in Session Case No.11/1989 whereby the accused appellant was convicted and sentenced under Sections 302 of IPC, is hereby quashed and set aside. The appellant is, accordingly, acquitted from the said offence while giving him benefit of doubt. The sentence awarded to the accused appellant was already suspended, therefore, he is not required to surrender and his bail bonds are hereby discharged.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bonds in the sum of Rs.20,000/- and a surety bond in the like amount each, before the learned trial court, which shall be (8 of 8) [CRLA-60/1992] effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(ARUN BHANSALI)J. (GOPAL KRISHAN VYAS)J.
DJ/-
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