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2023 DIGILAW 2118 (RAJ)

Jumaram S/o Lumbaram Ji v. State of Rajasthan

2023-11-21

MANOJ KUMAR GARG

body2023
JUDGMENT : MANOJ KUMAR GARG, J. 1. The matter is listed in ‘Defect category’ as the appeal is time barred by 107 days. An application has been filed under Section 5 of Limitation Act for condonation of delay. 2. For the reasons mentioned in the application, the application is allowed. The delay in filing the appeal is hereby condoned and matter is taken up for hearing. 3. The appellant has filed the present criminal appeal being aggrieved by the judgment dated 15.02.2023 passed by the learned Additional Sessions Judge, Pindwara, District Sirohi in Sessions Case No. 10/2020 whereby, the learned Judge, acquitted accused Kela, Bhamra Ram, Reshma Ram and convicted accused Movana Ram and Babu Ram with lesser offence. 4. Briefly, the facts of the case are that the appellant complainant filed a written complaint before the S.H.O. Police Station, Pindwara, District Sirohi to the effect that on 17.05.2015 at about 10 AM, when the complainant, his father Lumba Ram and his mother Motki reached near Minda’s house, then all the accused persons started assaulting them with lathis and axe. It was alleged that accused Movana Ram caused injury on head of Lumba Ram by axe and accused Babu and Kela caused injuries to Lumba Ram by lathi. When Motki tried to intervene, the accused Movana Ram assaulted her also by axe and other accused persons also caused injuries by lathi. It was stated that Lumba Ram succumbed to injuries and his mother was hospitalized. 5. On this report a FIR No. 153/2015 was registered against the respondents for offence under Sections 302, 341, 323, 143 IPC and investigation commenced. After investigation, challan was presented against the accused persons for offence under Section 147, 148, 149, 341, 323, 302 IPC. 6. The case was committed to the court of Additional Sessions Judge, Pindwara, District Sirohi where charges were framed against the accused persons for offence under Sections 147, 148, 341, 323/149, 302/149 IPC. The accused respondents denied the charge and claimed to be tried. 7. The prosecution in support of its case recorded statements of nine witnesses and exhibited documents. Thereafter, an application was filed under Section 216 Cr.P.C for amendment of charges upon which, the trial court framed additional charges for the offence under Section 326/149, 307/149 IPC. Thereafter, statement of witnesses PW-10 to PW-20 were examined and several documents were exhibited. 7. The prosecution in support of its case recorded statements of nine witnesses and exhibited documents. Thereafter, an application was filed under Section 216 Cr.P.C for amendment of charges upon which, the trial court framed additional charges for the offence under Section 326/149, 307/149 IPC. Thereafter, statement of witnesses PW-10 to PW-20 were examined and several documents were exhibited. The statement of accused under Section 313 Cr.P.C. were recorded and in defence, they exhibited documents Ex.D/1 to D/3. 8. After hearing arguments of both the sides, the trial Court acquitted the accused Kela Ram, Reshma Ram and Bhamra Ram but convicted accused Movana for offence under Section 304-II and Section 323 IPC and accused Babu Ram was convicted and sentenced for offence under Section 307 and 323 IPC. 9. The learned counsel for the appellant argued that the Court below without going through the entire record and evidence wrongly acquitted the accused respondents Kela Ram, Reshma Ram and Bhamra Ram for the offence charged against them and convicted and sentenced the accused respondent No. 2 Movana and respondent no. 4 Babu Ram with lesser offence. The court below while passing the impugned order did not consider the statements of witnesses in correct perspective whereas they categorically proved the prosecution story. It is argued that there were direct evidence as well as circumstantial evidence which proved the guilt of all the accused respondents. The injury report of injured Motki and deceased Lumba Ram have been exhibited which clearly show that they sustained grievous injuries assigned to all the accused respondents. Thus the judgment of the Court below is liable to be set aside and the accused respondents should be convicted for the offences charged against them. 10. I have heard the counsels for the parties and gone through the material on record. 11. From the evidence on record so also finding arrived by the learned trial court, it appears that the learned trial court has acquitted the accused respondents on the basis of material contradictions in the statement of the independent witnesses so also trivial dispute going on between the parties. The learned Trial court came to the conclusion that the prosecution has failed to prove the charges against the accused Kela, Bhamra Ram, Reshma Ram for the offences charged against them, beyond reasonable doubt. The learned Trial court came to the conclusion that the prosecution has failed to prove the charges against the accused Kela, Bhamra Ram, Reshma Ram for the offences charged against them, beyond reasonable doubt. So far as the accused Movana Ram and Babu Ram are concerned, they have been convicted and sentence for offence under Section 304-Part II IPC instead of Section 302 IPC as the trial court took into consideration the fact that the dispute erupted on a very trivial issue of distribution of wheat seeds and in the head of the moment the accused inflicted injury on the head of the deceased, only using backside of axe, thus there was no intention on the part of the accused to kill the deceased. 12. It is relevant to mention here that accused Movana Ram had filed an appeal before this Court being S.B. Criminal Appeal No. 375/2023 against his conviction for offence under Section 304 Part II and Section 323 IPC. The co-ordinate Bench of this Court after taking into consideration the entire facts and circumstances, so also evidence on record, partly allowed the appeal and while upholding the conviction of the accused Movana Ram, reduced the sentence of accused Movana Ram from ten years simple imprisonment to the period already undergone by him and he has been ordered to be released forthwith, if not required in any other case. 13. In the light of aforesaid decision which has now become final, in the opinion of this Court, the findings given by the trial Court are perfectly justified and there is no illegality in the judgment passed by the trial Court. 14. In the case of Mrinal Das and Others vs. State of Tripura, 2011 (9) SCC 479 , decided on September 5, 2011, the Hon'ble Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under: “An order of acquittal is to be interfered with only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable” it is a compelling reason for interference. If the order is “clearly unreasonable” it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.” 15. Similarly, in the case of State of Rajasthan vs. Shera Ram alias Vishnu Dutta, (2012) 1 SCC 602 , the Hon'ble Supreme Court has observed as under: “A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.” 16. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion is that there is no substantial difference between an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the trial Court is a reasonable one and the conclusion reached by it had grounds well set out on the materials on record, the acquittal may not be interfered with. Learned counsel for the appellant has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. 17. In the facts and circumstances of the case, the present criminal appeal has no substance and the same is hereby dismissed.