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2024 DIGILAW 353 (RAJ)

State Of Rajasthan v. Hukma Ram S/o Kehra Ram

2024-02-26

PUSHPENDRA SINGH BHATI, RAJENDRA PRAKASH SONI

body2024
JUDGMENT : Pushpendra Singh Bhati, J. 1. Both the instant appeals are directed against the impugned judgment dated 27.06.1992 passed by the learned Additional Sessions Judge No.1, Jodhpur (‘Trial Court’) in Sessions Case No.86/92 (State Vs. Hukma Ram & Anr.). Instant D.B. Criminal Appeal No.230/1992 has been preferred to challenge the said judgment to the extent of conviction of the accused-appellants; while the instant D.B. Criminal Appeal No.333/1994 has been preferred by the State against the same impugned judgment to the extent of acquittal of the accused-Hukma Ram herein. 1.2. The accused-appellants herein have been convicted and sentenced as below vide the aforementioned judgment of conviction and order of sentence dated 27.06.1992 : Accused-appellant Hukma Ram : Offence Sentence Fine 323 IPC One Year’s R.I. Rs.1,000/-, in default of which, to further undergo 6 month’s R.I. Accused-appellant Shera Ram: Offence Sentence Fine 323 IPC One Year’s R.I. Rs.1,000/-, in default of which, to further undergo 6 month’s R.I. 341 IPC One month’s S.I. - - All the sentences were ordered to run concurrently. However, vide the impugned judgment, accused-appellant Hukma Ram was acquitted of the charged offence under Section 302 IPC, while extending him the benefit of doubt. Accused-Shera Ram was not charged with the offence under Section 302 IPC. 2. Brief facts of the case giving rise to the instant appeals are that on 15.03.1990, one Tilaram (complainant) lodged an FIR before the Reserve Centre (Aarakshi Kendra), Luni stating therein that on the said date, at about 11:30 a.m., while he alongwith his father Madaram were on their way to Village Mogda for getting certain goods/articles, at that time, accused-Shera Ram intercepted and stopped them, and told the complainant party that they have devised certain magic formula on the cows of the accused party, and in that connection, the accused party subjected the complainant party to beatings by infliction of fists blows; such criminal act was however stopped due to intervention and an act of rescue made by one Manglaram, at the relevant time. 2.1. Thereafter, the said Manglaram alongwith Madaram (complainant’s father) and accused-Shera Ram reached to a School to resolve the dispute through compromise, where one Keka Ram and Mangilal also came and they all mutually decided to go to a Temple. 2.1. Thereafter, the said Manglaram alongwith Madaram (complainant’s father) and accused-Shera Ram reached to a School to resolve the dispute through compromise, where one Keka Ram and Mangilal also came and they all mutually decided to go to a Temple. At that time, accused-Hukma Ram, who at the relevant time, was serving under the B.S.F. came there and started giving kick blows on the face of Madaram (complainant’s father), who, as a result whereof, became unconscious and his nose started bleeding. The said act was however, stopped due to intervention of Keka Ram, Mangla Ram and Mangilal, and Madaram (complainant’s father), who was in a state of unconsciousness, was taken and admitted in a Salawas Hospital. 2.2. As per the prosecution case, since complainant Tilaram was not present at the time when his father (Madaram) was subjected to the aforesaid treatment and he was informed of the same by Mangla Ram, the complainant thereafter immediately reached the hospital and found his father Madaram in the state of unconsciousness. 2.3. In connection with the above incident, complainant-Tilaram lodged an FIR before the concerned police station, which was registered for the offences under Sections 323 & 341 IPC, and the investigation accordingly commenced thereafter. However, during the course of investigation, injured Madaram (father of the complainant) was referred for treatment at Mahatma Gandhi Hospital, Jodhpur, where while undergoing treatment, the complainant’s father Madaram died on 25.03.1990, and thus, the offence under Section 302 IPC was added, apart from the other aforementioned offences, against the accused-appellants. After investigation, the concerned investigating authority filed a charge-sheet against the accused-appellants under Sections 302, 323 & 341 IPC before the learned Munsif & Judicial Magistrate, Jodhpur, District Jodhpur. 2.3.1. The said learned Court however, owing to the offences involved, committed the case to the learned Sessions Judge for due trial, after which, the charges were framed against the accused-appellant Hukma Ram for the offence under Section 302 IPC and as against accused-appellant Shera Ram for the offences under Sections 323 & 341 IPC. The said charges were denied by the accused-appellants and they were made to stand trial, and thus, the trial accordingly commenced. 2.3.2. During the course of trial, in total, 16 witness were produced on behalf of the prosecution for examination; whereas the accused-appellants did not produce any defence evidence. The said charges were denied by the accused-appellants and they were made to stand trial, and thus, the trial accordingly commenced. 2.3.2. During the course of trial, in total, 16 witness were produced on behalf of the prosecution for examination; whereas the accused-appellants did not produce any defence evidence. After evidence of the prosecution witnesses, the version of the accused-appellants was recorded under Section 313 Cr.P.C., and thereafter, the case was transferred for trial to the learned Trial Court. 2.4. Subsequently, after conducting due trial, the learned Trial Court passed the impugned judgment of conviction and order of sentence dated 27.06.1992, as above, whereby on one hand, both the accused-appellant were convicted and sentenced for certain above-mentioned offences, on the other hand, accused-appellant Hukma Ram was acquitted by the learned Trial Court for the charged offence under Section 302 IPC, while extending him the benefit of doubt, as already mentioned above. 3. In D.B. Criminal Appeal No.333/1994, the learned Public Prosecutor for the appellant-State submitted that deceased-Mada Ram died on count of the injuries inflicted upon him by the accused and the same has also been stated by P.W.-14-Dr. Dharmendra Sharma in his deposition; he further stated that the all the injuries, were, in the ordinary course of nature, sufficient to cause the death of Mada Ram (deceased). Therefore, on this count alone, the learned Trial Court committed an error in passing the impugned judgment, to the extent of acquittal of the accused under Section 302 IPC. 3.1. Learned Public Prosecutor further submitted that the deceased was beaten by the accused, till he became unconscious, which fact is sufficient to establish the intention of the accused to cause the death in question. Therefore, as per learned Public Prosecutor, the learned Trial Court has committed an error of law in acquitting the accused, while ignoring such motive and object of the accused. It was thus submitted that the learned Trial Court passed the impugned judgment to the extent of acquittal of the accused, without duly considering the overall facts and circumstances of the case, and without duly analyzing and appreciating the evidence, including the statements of the prosecution witnesses, available on record before it. 3.2. It was thus submitted that the learned Trial Court passed the impugned judgment to the extent of acquittal of the accused, without duly considering the overall facts and circumstances of the case, and without duly analyzing and appreciating the evidence, including the statements of the prosecution witnesses, available on record before it. 3.2. On the other hand, learned counsel for the accused, while opposing the aforesaid submissions made on behalf of the appellant-State, submitted that there is a clear contradiction between the medical report and eye witnesses’ statements, and most of the injuries were not found at the time of the autopsy, and even the concerned investigating agency did not found any injury on the body of the Mada Ram at the time of investigation, and therefore, the learned Trial Court has rightly acquitted the accused for the offence under Section 302 IPC. 3.3. Learned counsel for the accused further submitted that there is no cogent evidence on record regarding any involvement of the accused in causing the death of Mada Ram, therefore, the learned Trial Court has rightly acquitted the accused for the offence under Section 302 IPC, more particularly, owing to the simple nature of injuries in question. 4. In D.B. Criminal Appeal No. 230/1992, the learned counsel for the accused-appellants submitted that both the accused were convicted under Section 323 IPC (apart therefrom accused-Shera Ram was convicted under Section 341 IPC as well) by the impugned judgment, but thereafter, during the pendency of this appeal, a compromise has been arrived between complainant-Tilaram and both the accused, and such compromise has also been duly and lawfully accepted, both the accused were acquitted of the same by the competent Court. 4.1. Learned counsel for the accused-appellants further submitted that the accused-Hukma Ram is a government servant and he was acquitted of the offence under Section 302 IPC by the learned Trial Court, and as regards, the offence under Section 323 IPC, the compromise has been arrived at between the complainant and the accused parties, as mentioned above. 4.2. Learned counsel for the complainant supported such submissions made on behalf of both the accused-appellants and submitted that the compromise has been arrived between the parties as regards the charge and conviction under Section 323 IPC under impugned judgment. 4.2. Learned counsel for the complainant supported such submissions made on behalf of both the accused-appellants and submitted that the compromise has been arrived between the parties as regards the charge and conviction under Section 323 IPC under impugned judgment. 4.3 Learned counsel for the accused-appellants further submitted that the learned Public Prosecutor appearing on behalf of the State could not refute the factum of such compromise between the complainant and the accused parties as regards the offence under Section 323 IPC, and yet are bent upon to impress for continuation of charge and conviction of the accused-appellant under the said provision of IPC. 5. Heard learned counsel for the parties as well as perused the record of the case. 6. This Court observes that on 15.03.1990, the deceased sustained injuries due to infliction of blows by the accused, and thereafter, he was taken to the local hospital, wherefrom he was referred for treatment at Mahatma Gandhi Hospital, Jodhpur and while undergoing treatment in the said hospital, Mada Ram died on 25.03.1990, due to the aforesaid injuries, during pendency of the investigation in the FIR under Sections 323 & 341 IPC, which resulted into addition of the offence under Section 302 IPC as well for the purpose of investigation. 7. After carefully perusing the impugned judgment, more particularly, to the extent of acquittal of the accused under Section 302 IPC, this Court finds that the impugned judgment has been passed by the learned Trial Court after duly appreciating the evidence placed on record before it, while assigning the following reasoning: I. There are material contradictions in the statements of PW.2 & PW.3, and that, the said witnesses, as per their depositions, did not see the incident in question, and they are only confirming happening of the incident in question, but deposed that they have no clarity about involvement of the accused in the act of giving beatings to the deceased. II. The other two eye-witnesses PW.6 and PW. 7 were declared hostile. III. As per the X-ray report (Ex-14) of the deceased and two Fards EX-4 and EX-10, no injury on the head of the deceased has been recorded, and there are material contradictions between the oral and the documentary evidence, as regards the injury in question. IV. II. The other two eye-witnesses PW.6 and PW. 7 were declared hostile. III. As per the X-ray report (Ex-14) of the deceased and two Fards EX-4 and EX-10, no injury on the head of the deceased has been recorded, and there are material contradictions between the oral and the documentary evidence, as regards the injury in question. IV. If the accused wanted to cause death of the deceased, then at least he would certainly have carried a weapon, which is not reflected anywhere from the record. 8. This Court perused the depositions made by the important witnesses and finds as follows: 8.1. This Court finds that the PW-1-Tilaram (complainant) was not an eye witness to the incident in question and he was informed about the same by PW-2-Manglaram, stating that accused-Hukmaram, who at the relevant time, was wearing the military footwear, hit the deceased on his face; but the said version has not been recorded in the FIR, so also in the statements recorded before the concerned investigating agency; admission in that regard has also been admitted during the statement before the learned Trial Court. 8.2. This Court further finds that PW-2 & PW-3 were the eye-witnesses of the incident in question; as per the deposition made by PW-2, when the deceased was going towards Tatiyo ki Dhani, at that time, the accused came and started fighting with the deceased; the said fighting happened again when the deceased was in a School, and thus due to the injuries sustained by the deceased, during the course of such fighting, he was taken to and admitted in a hospital. 8.2.1. PW-3 deposed that at the relevant time, he heard some sound, whereupon he reached the place of the incident, ten minutes after, but he did not see anyone hitting the deceased. 8.2.2. This Court after a perusal of the statements of PW-2 and PW-3 finds material contradictions in the same. Firstly, in the statements recorded before the police as well as before the learned Trial Court, there seems to be no clarity in the depositions of the said witnesses, as to who hit the deceased causing the injuries resulting into the death in question, and as to the version that the deceased went to Tatiyo ki Dhani and then the school, even PW-3 stated that he came to the site in question after 10 minutes of the incident. Therefore, in view of the same, PW-2 & PW-3 cannot be termed as eye witnesses, and their version also cannot be said to be believable. 8.3. This Court further finds that PW. 11-Dr. Malhotra, who was the treating doctor of the deceased, upon the deceased being referred to the hospital, stated that at the relevant time, during the course of treatment, there was swelling on his temporoparietal, bleeding in the left ear, and other injuries were also found on the back side of the stomach, on the arm, as well as on the nose; but as per the X-ray report (Ex.14), no fracture was found on the head of the deceased. 8.4. Furthermore, as per deposition of PW.-12-Hari Singh who was then posted at the Reserve Centre (Aarakshi Kendra) and drawn Fard-Ex.4, only three injuries on the body of the deceased were there, and no injury was there on the head of the deceased. As per the statement of PW-15-Ramvalabh, the then Sub-Inspector, who made Fard Surat Haal Laash Ex-10, no injury was found on the head of the deceased. This Court further finds that it is clear that there are material contradictions in the depositions made by the witnesses, regarding the injuries on the body of the deceased. 8.5. This Court also finds that PW. 6 and PW.7 stated that they did not see the incident, and also did not see anyone beating the deceased, whereupon, PW.6 and PW. 7 were declared hostile. 9. At, this juncture, this Court considers it appropriate to reproduce the relevant portions of the judgment rendered by the Hon’ble Apex Court in the case of Mallappa & Ors. Vs. State of Karnataka (Criminal Appeal No. 1162/2011, decided on 12.02.2024) as hereunder-: “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. Vs. State of Karnataka (Criminal Appeal No. 1162/2011, decided on 12.02.2024) as hereunder-: “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. 9.1. This Court also considers it appropriate to reproduce the relevant portions of the judgment rendered by a Division Bench of this Hon’ble Court in the case of State of Rajasthan Vs. Shiv Narayan & Ors. (D.B. Criminal Appeal No. 250/1992, decided on 13.12.2022) as hereunder:- “In Yogesh Singh Vs. Mahabeer Singh and Ors. reported in AIR 2016 SC 5160 , Hon’ble the Supreme Court held that one of the golden threads which runs through the web of administration of justice in criminal cases is that if there are two perspectives arising from the evidence adduced in a matter, one inclining towards the guilt of the accused and another inclining towards the innocence of the accused, the view which is favourable to the accused should be adopted. In a recent judgment dated 28th July, 2022 passed in Criminal Appeal No. 2119 of 2010 titled State of Rajasthan Vs. In a recent judgment dated 28th July, 2022 passed in Criminal Appeal No. 2119 of 2010 titled State of Rajasthan Vs. Kistoora Ram, the Apex Court has held that the scope of interference in an appeal against acquittal is limited unless the view taken by Court is impossible or perverse. It was opined that if two views are possible, then the order of acquittal cannot be discarded only because the Appellate Court is of the view that conviction is more probable. The order of acquittal would warrant interference only when the view taken by the lower court is not possible at all. In light of the above observations and considering the arguments advanced at the bar, this Court does not find any room for interference in the order passed by the learned trial Court. The story of the prosecution is not found proved beyond reasonable doubt and the plea of the accused regarding right to private defense is found to be reasonable and worth accepting”. 10. This Court also finds that there are four eye-witnesses, i.e. PW-1, PW-2, PW-6 & PW-7, and the PW-1 & PW-2 did not confirm the incident in question, but they have not seen anyone beating the deceased, and both the statements i.e of PW-1 & PW-2 also reflects contradictions and they cannot be termed as reliable witnesses, so as to convict the accused for the offence under Section 302 IPC. This Court further finds that PW.6 & PW.7 were declared hostile. 11. This Court further finds that the X-ray report (Ex-14) of the deceased and two fards EX-4 and EX-10, clearly show that no injury was found on the head of the deceased and even it has not been prove that the death of the deceased was caused due to the injury on his head, and also as to the fact that the said injury was caused by the accused, and therefore, the prosecution failed to proved the involvement of the accused in commission of the offence of murder of the deceased, beyond all reasonable doubts. 12. This Court also observes that on a consideration of the overall facts and circumstances of the case, the essential ingredients of the Section 302 IPC are not made out in the present case, because, amongst others, the accused did not carry any weapon, at the relevant time, to cause the death in question. 12. This Court also observes that on a consideration of the overall facts and circumstances of the case, the essential ingredients of the Section 302 IPC are not made out in the present case, because, amongst others, the accused did not carry any weapon, at the relevant time, to cause the death in question. The record also clearly shows that the motive/intention to cause the death in question on the part of the accused is absent, and therefore, the learned Trial Court has rightly acquitted the accused of the offence under Section 302 IPC. 13. This Court further finds that the incident in question had been reported to have happened on 15.03.1990 and the deceased died on 25.03.1990 in the hospital after 10 days of the incident, and thus, it is clear that for causing the death in question by the accused, there would have been sufficient fight and altercations, which is apparently absent in the present case, and absence of such essential elements for conviction under Section 302 IPC, weakened the prosecution case in regard to the offence of murder. 14. This Court also finds that the learned Trial Court passed the impugned judgment regarding the acquittal of the accused for the offence under Section 302 IPC, which is justified in law. As per the precedent law laid down by the Hon’ble Apex Court in the judgment rendered in Mallappa & Ors. (supra), particularly in principle (vi) mentioned in para 36 of the said judgment, as quoted hereinabove, “In a case of reversal from acquittal to conviction, the appellate Court must demonstrates an illegality, perversity or error of law or fact in the decision of the Trial Court.” 14.1. In the present case, the learned Trial Court duly and thoroughly examined each and every witness and also examined the documents produced before it and thus, the conclusion drawn by the learned Trial Court in the impugned judgment regarding acquittal of the accused of the offence under Section 302 of IPC does not suffer from any legal infirmity or perversity or error of law or fact. 15. 15. This Court also finds that the scope to interference in the conclusion regarding acquittal arrived at by the learned Trial Court is very limited and if the impugned acquittal judgment of the learned Trial Court is legally a plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal, as per the law laid down by the Hon’ble Apex Court in the judgment rendered in Mallappa & Ors. (supra). 16. Thus, looking into the nature of offence in question and having regard to the overall facts and circumstances of the case as also in view of the above-quoted precedent law as well as the material and evidence available on record, D.B. Criminal Appeal No. 333/1994 preferred by the State against the part of the impugned judgment, whereby the accused was acquitted of the offence under Section 302 IPC, is dismissed. 17. However, as regards, D.B. Criminal Appeal No. 230/1992, preferred by the accused against the conviction vide the impugned judgment passed by the learned Trial Court under Sections 323 and 341 IPC, this Court finds during pendency of the present appeal, both the accused and the complainant filed a joint application in regard to compromise under Section 320 (4) (b) &(6) Cr.P.C. as regards the conviction of the accused under Section 323 IPC. This Court further finds that a perusal of the compromise application, clearly substantiates the fact of such compromise, as also stated by the learned counsel for the complainant, and therefore, this Court does not find any reason to doubt the fact of such compromise. 18. This Court also observes that the offence under Section 323 IPC is compoundable as per Section 320 Cr.PC., therefore, the D.B. Criminal Appeal No.230/1992 is allowed, and the compromise arrived at between the complainant and accused parties is accepted, and the impugned judgment, as regards the conviction and sentence dated 27.06.1992 is modified to the said extent only. Both the accused are hereby acquitted for the offence under Section 323 IPC; their bail bonds stand discharged. All pending application, if any, disposed of.