Tilok Ram vs State Of Rajasthan
2022 Latest Caselaw 5256 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 380/2021

1. Tilok Ram S/o Moola Ram, Aged About 45 Years, Resident Of Village Dodiyana, Padu Kalla Police Station, District Nagaur. (Presently Lodged At Central Jail, Ajmer)

2. Subhash S/o Chunni Lal, Aged About 41 Years, Resident Of Kukanwali, Chitawa Police Station, District Nagaur. (Presently Lodged At Central Jail, Ajmer)

3. Bhura Ram S/o Mukna Ram, Aged About 53 Years, Resident Of Kitalsar, Degana Police Station, District Nagaur. (Presently Lodged At Central Jail, Ajmer)

4. Kailash S/o Hanuman Ram, Aged About 40 Years, Resident Of Mokalpur, Gotan Police Station, District Nagaur. (Presently Lodged At Central Jail, Ajmer)

----Petitioners Versus State Of Rajasthan, Through P.p.

----Respondent Connected With S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 297/2021 Bhagwan Ram S/o Nathu Ram, Aged About 36 Years, Maukalpur, Police Station Gotan, District Nagaur. (Appellant Present Lodged In Central Jail Ajmer).

----Petitioner Versus State Of Rajasthan, Through P.p.

----Respondent S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 420/2021 Babu Lal S/o Madhu Ram, Aged About 30 Years, R/o Shekhpura, P.s. Thanwala, District Nagaur.

                                                                 ----Petitioner
                                  Versus
State Of Rajasthan, Through Pp



                                         (2 of 9)                  [SOSA-380/2021]


                                                                ----Respondent


For Petitioner(s)        :     Mr.   Vishwajeet Joshi with
                               Mr.   Kapil Bissa
                               Mr.   Kailash Khatri
                               Mr.   Padam Singh Solanki
                               Mr.   B.S. Mertia
For Respondent(s)        :     Mr. Gaurav Singh PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 06/04/2022 Pronounced on 08/04/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

2. The instant applications seeking suspension of sentence have

been preferred against the judgment of conviction and sentence

awarded to the accused-applicants/appellants vide order dated

17.03.2021 passed by the learned Additional District & Sessions

Judge, Merta in Sessions Case No.05/2017, for the offences under

Sections 395, 397, 458, 459, 460, 323, and 307 read with Section

120-B IPC. Accused Kailash was convicted for the offence under

Section 7/27 of the Arms Act as well. The said accused Kailash is

not before this Court in the present applications for suspension of

sentence. However, charge against accused Kailash under Section

3/25 of the Arms Act was dropped by the learned trial court vide

the impugned judgment.

                                          (3 of 9)                 [SOSA-380/2021]


3.   Learned     counsel      for     the      accused-applicants/applicants

submits that complainant, Rajuram Jat, filed a complaint at Police

Station Gotan alleging that about 8-10 persons broke into his

Dhani/residence (where he was residing with his family) on

03.09.2016, at about 01:30 a.m. and lit a fire to the residence,

and stole gold ornaments and electronic gadgets, and also,

opened gun fire upon his family members and other residents.

And that, basis the same, an F.I.R. bearing No. 218/2016 was

registered against the accused for the offences under Sections

395, 307, 323 & 458 IPC and Section 3/25 of the Arms Act; after

investigation, challan was filed against as many as eight accused

persons before the learned trial court for the offences viz. Sections

395, 397, 323, 458, 459, 460 & 307 read with Section 120-B IPC;

out of the said accused person, challan was filed against accused

Kailash for the offences under the Arms Act viz Sections 3/25 &

7/27 as well; the learned trial court, in turn, framed charges

against the appellants and others, and subsequently convicted and

sentenced them accordingly.

3.1. Learned counsel further submit that the incident in question

was alleged to have been occurred when the Dhani/residence of

the complainant was dimly lit, but there was no sufficient evidence

to identify the accused-applicants/appellants, as the culprits,

beyond doubt.

3.2. Learned counsel also submit that the injuries in question

were simple in nature, and were incorrectly held to be grave in

nature. And that, the prosecution failed to prove motive and

intention for the alleged acts against the

accused-applicants/appellants.

(4 of 9) [SOSA-380/2021]

3.3. Learned counsel further submit that the recovery made from

the accused, Babu Lal and Bhagwan Ram, was only a lathi and a

mobile phone and a motorcycle respectively, but the alleged gun

which was fired was not retrieved from either of them; the gun

fire and injury is not attributed to the present accused-applicants/

appellants, but to accused Kailash. And that, there was no blood

on the lathi so recovered, and that the mobile phone so recovered

was in fact, not proven to be the same phone as alleged to have

been stolen from the residence of the complainant. Further, there

was no mention of a motorcycle in the complaint either.

3.4. Learned counsel thus submit that the version of the

prosecution was not proven beyond reasonable doubt, and that

there were gaping holes and no link formed in the evidences so

placed on record before the learned trial court, so as to justify

conviction and sentence awarded to the accused

applicants/appellants.

3.5. Learned counsel placed reliance on the judgment rendered

by the Hon'ble Apex Court in Nallabothu Ramulu alias

Seetharamaiah Vs. State of Andhra Pradesh (2014) 12 SCC

261. it observed as under:-

"The High Court reversed the order of acquittal passed by the trial court. The question is whether the High Court justified in doing that. To answer this question, it would be necessary to refresh our memory and have a look at the principles laid down by this Court for guidance of the Court dealing with an appeal against an order of acquittal. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, this Court laid down the principles as under:

42. From the above decisions, in our considered view, the following general principles regarding powers of the

(5 of 9) [SOSA-380/2021]

appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

In Dwarka Dass and Ors. v. State of Haryana (2003) 1 SCC 204, this Court observed as under:

2. While there cannot be any denial of the factum that the power and authority to appraise the evidence in an appeal, either against acquittal or conviction stands out to be very comprehensive and wide, but if two views are reasonably possible, on the state of evidence: one supporting the acquittal and the other indicating

(6 of 9) [SOSA-380/2021]

conviction, then and in that event, the High Court would not be justified in interfering with an order of acquittal, merely because it feels that it, sitting as a trial court, would have taken the other view. While reappreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on a wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.

In Bihari Nath Goswami v. Shiv Kumar Singh and Ors. (2004) 9 SCC 186, this Court observed as under:

8. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.

...the possibility of witnesses trying to falsely implicate persons belonging to the rival group cannot be ruled out...The trial court meticulously scanned the evidence and opined that there was no sufficient light at the scene of offence to enable the witnesses to identify the accused. ... While coming to this conclusion, the trial court further noted that in the FIR, in the observation report and in the inquest report, there is no mention of availability of light.

The High Court overturned the findings of the trial court on availability of light on the ground inter alia that witnesses were deposing 5½ years after the incident and there are bound to be some discrepancies in their evidence...

(7 of 9) [SOSA-380/2021]

...In any case, it would not be possible for the witnesses to note what role each accused played. The overt acts attributed by the witnesses to the accused must be, therefore, taken with a pinch of salt... Possibility of wrong identification cannot be ruled out...

... The High Court further observed that at best not recording statements of witnesses is an irregularity and cannot affect the veracity of prosecution case. We are of the opinion that the High Court treated this gross lacuna in the prosecution case lightly. In this case, where relations between the two sides were strained, there was an earlier incident of attack and there were about 50 accused involved in the incident, the earliest version of the prosecution case was most crucial but it was not noted down.

Finally, we must note that the High Court has not stated why it felt that the trial court's view was perverse. It has not stated what were the compelling reasons, which persuaded it to disturb the order of acquittal. As noted by this Court in several decisions if two reasonable views are possible, the appellate court shall not disturb the order of acquittal because it feels that some other view is possible. The reasonable view which reinforces the presumption of innocence of the accused must be preferred. In our opinion the trial court's view was not perverse. It was taken after thorough marshalling of evidence. It was a reasonably possible view. The High Court erred in disturbing it."

4. On the other hand, learned Public Prosecutor opposes the

aforesaid submissions made on behalf of the

accused-applicants/appellants, and submits that the learned trial

court has convicted and sentenced the accused applicants-

appellants, vide the impugned judgment, after taking into due

consideration the overall facts and circumstances of the case, after

a perusal and detailed analysis of the evidences placed on record

before it, and rightly so.

                                                (8 of 9)                     [SOSA-380/2021]


4.1. Learned       Public          Prosecutor        further      submits          that   the

averments       made     by        the    learned         counsel     for    the     accused

applicants/appellants, that there is not a single independent

witness of the alleged incident in question, is devoid of logic and

merit as it is a safe presumption that at 01:30 a.m., in the

ordinary course, people in the area would not remain awake.

5. After hearing learned counsel for the parties as well as

perusing the record of the case, alongwith the precedent law cited

at the Bar, this Court finds that the present

accused-applicants/appellants, alongwith others, have entered

into the residential premises of the complainant, where he was

residing with his whole family, that too, at about 1:30 a.m.; the

accused applicants/appellants with an intention of creating fear,

have opened the gun fire with a country-made pistol, and also

gave beatings to the complainant party. The

accused-applicants/appellants have also taken away, under the

threat and fear on gun point, the valuables, including gold

ornaments belonging to the complainant party.

6. On an overall consideration of the facts and circumstances of

the case, this Court, at this stage, does not find it a fit case so as

to grant any indulgence to the present

accused-applicants/appellants, as the same, if done at this stage,

would not only encourage the present applicants/appellants to

repeat such crimes, but also other persons; the crime in question

thus, does not deserve any leniency. This is more so, in view of

the previous criminal antecedents against the discredit of some of

the present accused-applicants/appellants, as reflected in the

(9 of 9) [SOSA-380/2021]

antecedent report furnished by the learned Public Prosecutor

before this Court.

7. The precedent law cited by learned counsel for the

applicants/appellants does not render any support to their case,

rather the same goes against them.

8. Thus, in view of the above, this Court is not inclined to grant

indulgence of suspension of sentence to the

accused-applicants/appellants.

9. Consequently, the present applications for suspension of

sentence are dismissed.

(DR.PUSHPENDRA SINGH BHATI), J.

192-194-skant/-

Powered by TCPDF (www.tcpdf.org)