Gokia vs State
2022 Latest Caselaw 5424 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                 S.B. Criminal Appeal No. 362/1991

Gokia
                                                                  ----Appellant
                                   Versus
State
                                                                ----Respondent


For Appellant(s)         :     Mr. SK Verma
For Respondent(s)        :     Mr. Mukesh Trivedi, PP



     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

                                    Order

12/04/2022

     In 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 Court, for the safety of

all concerned.

     Learned counsel for the appellant submits that this Criminal

Appeal has been preferred against the impugned judgment dated

25.10.1991, passed by the learned Additional Sessions Judge, Bali

in Sessions Case 46/86 whereby the appellant was convicted for

the offences under Section 304 Part-II and sentenced to undergo

5 years R.I. and a fine of Rs. 2,000/-, default of payment of which

he was ordered to further undergo 6 months' R.I.

     Briefly stated the facts of the case are that one Bhagirath,

who received injuries, died on 26.10.1983 and his statement was

recorded and was treated as dying declaration. The allegation is

that on 25.10.1983 at about 5.00 P.M. when he was going to

graze his cattle, he was attacked by the accused persons carrying


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lathies and inflicted injuries and subsequently he was rescubed by

Kesa Ram and Daula.

     Learned counsel for the appellant pointed out that in the

impugned judgment, learned court below has disbelieved the

dying declaration and has rendered it to be an evidence to be read

with great caution. The complainant in the case has turned hostile,

as he merely said that the accused caught hold of deceased

Bhagirath's legs and pulled him down from the tree, which is a

different version of the FIR.

     Learned counsel for the appellant further submits that even

the wife of the injured Tulsi has not supported the veracity of FIR,

but has taken a version that he was pulled down from a tree and

she was also declared hostile. The mix-up of the two versions

clearly show that the prosecution could not firmly establish its

story of culpable homicide.

     Learned counsel for the appellant also submits that the wife

of the deceased turning hostile is an itself sufficient cause to cast

doubt upon the case of the prosecution and the benefit of which

has to be given to the present appellant. Learned counsel also

submits that PW-4 Daula Ram has also turned hostile and

Investigating Officer was not examined before the learned court

below.

     Learned counsel for the appellant further submits that the

sentence so awarded to the appellant was however suspended by

this Hon'ble Court, vide order dated 14.01.1992 passed in S.B.

Criminal Misc. Bail Application No.350/1991.

     Learned Public Prosecutor opposes the petition.

     After hearing the learned counsel for the parties and

perusing the record of the case, this Court is of the opinion that

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                                   learned trial court has not been able to establish the story of the

                                   prosecution beyond reasonable doubt. On one side there is a

                                   version of the deceased, which is read with caution by the learned

                                   trial court that he was attacked with lathies and on the other side

                                   the crucial witness including PW-2 wife of the deceased, gave a

                                   different version, who being an eye-witness of the incident that

                                   the deceased was pulled down by the present appellant and thus,

                                   the injuries were received. This Court is unable to convince itself

                                   for continuation of conviction.

                                         In view of the above, the present appeal is allowed.

                                   Accordingly, the impugned judgment dated                    25.10.1991, passed

                                   by the learned Additional Sessions Judge, Bali is quashed and set

                                   aside. The appellant is acquitted of the charges levelled against

                                   him. The appellant is on bail. He need not surrender. His bail

                                   bonds stand discharged accordingly.

                                         All pending applications stand disposed of. Record of the

                                   learned court below be sent back forthwith.



                                                                (DR.PUSHPENDRA SINGH BHATI), J.

47-Sudheer/-

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