State vs Dasrath
2022 Latest Caselaw 6005 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                  D.B. Criminal Appeal No. 66/1986

State of Rajasthan
                                                                    ----Appellant
                                    Versus
1. Dashrath son of Jagannath, resident of Radi, District Bundi.
2. Lal Chand son of Ram Kalyan, resident of Ladpura, District
bundi.
3. Kajod son of Ramkaran, resident of Delunda, District Bundi.
4. Ram Lal son of Nand Lal, resident of Delunda, District Bundi.
5. Devraj son of Kalyan, resident of Swansa, District Bundi.
                                                                 ----Respondents

Connected With S.B. Criminal Appeal No. 238/1985 Dashrath son of Shri Jagannath, resident of Village Radi, Tehsil K.Patan, District Bundi, at present in District Jail Bundi.

----Appellant Versus The State Of Rajasthan

----Respondent S.B. Criminal Appeal No. 248/1985 Devraj son of Shri Kalyan, resident of Village Swansa, Tehsil and District Bundi.

                                                                    ----Appellant
                                    Versus
The State of Rajasthan
                                                                 ----Respondent


For State                 :     Mr. Javed Choudhary, AGA
For Complainant           :     Ms. Savita Nathawat for
                                Mr. Rinesh Gupta
For Accused               :     Mr. S.K. Jain with Ms. Dipti Jain
                                Mr. Sanjay Mehrishi



            HON'BLE MR. JUSTICE PANKAJ BHANDARI
              HON'BLE MR. JUSTICE SAMEER JAIN



                                              (2 of 10)                   [CRLA-66/1986]

                                 Judgment

RESERVED ON                             ::                           23/08/2022
PRONOUNCED ON                           ::                           30/08/2022

1.   State   has   preferred        D.B.       Criminal         Appeal   No.66/1986

aggrieved by the judgment and sentence dated 02.05.1985

whereby accused Lal Chand has been acquitted, accused Kajod

has been given benefit of probation and whereby accused

Dashrath, Devraj, Ram Lal and Kajod have been acquitted for

offence under Section 302/149 of IPC, however, accused

Dashrath, Devraj and Ram Lal have been convicted for offence

under Sections 147, 304 Part-II read with Section 149 IPC and

accused Kajod has been convicted for offence under Sections 147,

324/149 of IPC.

2. Appellant - Dashrath has preferred D.B. Criminal Appeal

No.238/1985 and accused Devraj has preferred D.B. Criminal

Appeal No.248/1985 aggrieved by the judgment of conviction

dated 02.05.1985 for offence under Section 147 and Section 304

Part-II read with Section 149 IPC.

3. Succinctly stated the facts of the case are that Avtar Singh

(PW-7) lodged an FIR on 19.07.1983 alleging therein that

Dashrath, Devraj, Kajod, Om, Ram Lal, Mohan and Lal Chand have

given beating to his father. The police after due investigation

submitted charge-sheet against Dashrath, Lal Chand, Kajod, Ram

Lal and Devraj for offence under Sections 147, 302, 302/34,

302/149 of IPC. The accused denied the charges and sought trial.

On behalf of the prosecution as many as 12 witnesses were

examined and explanation of the accused was recorded under

Section 313 Cr.P.C. On behalf of defence, 7 witnesses were

examined as DW-1 to DW-7. Learned trial Court after hearing the

(3 of 10) [CRLA-66/1986]

parties has acquitted accused Lal Chand, Kajod has given benefit

of probation and has convicted Dashrath, Devraj and Ram Lal for

offences under Section 147 IPC and Section 304 Part-II read with

Section 149 of IPC and has sentenced them to 5 years rigorous

imprisonment and a fine of Rs.500/-, on non-payment of the fine,

to further undergo 5 months simple imprisonment for offence

under Section 304 Part-II read with Section 149 IPC and has

sentenced to 6 months imprisonment for offence under Section

147 of IPC and a fine of Rs.200/-, aggrieved by which the

appellants Dashrath and Devraj have preferred D.B. Criminal

Appeal Nos.238/1985 and 248/1985 respectively and aggrieved by

the judgment of acquittal and of conviction under Section 304

Part-II instead of Section 302 IPC, State has preferred D.B.

Criminal Appeal No.66/1986.

4. Accused Ram Lal and Kajod have expired. On account of

their death, appeal filed by the State qua Ram Lal and Kajod was

abated. The present State appeal now confines to accused

appellants - Lal Chand, Dashrath and Devraj only.

5. All these appeals arise out of the judgment and sentence

dated 02.05.1985, hence, all are being decided by this common

order.

6. Learned Additional Government Counsel appearing for the

State contended that deceased - Charan Singh had sustained as

many as 34 injuries, out of which 21 were incised wounds and

there were more than 8 fractures, which clearly goes to show that

the intention of the accused was to commit the offence of murder.

It is also contended that the trial Court has erred in convicting

appellants - Dashrath and Devraj for offence under Section 304

Part-II of IPC and has further erred in acquitting Lal Chand. It is

(4 of 10) [CRLA-66/1986]

argued that the case clearly falls under Section 300 Clause-III of

IPC. It is further contended that an axe and 2 paltas were

recovered from Dashrath. It is argued that deceased Charan Singh

died due to cumulative effect of all the injuries and when there

were specific allegations against all the accused in the first

information report filed by son of the deceased Avtar Singh (PW-

7), there was no justification for the Court below to acquit the

accused - Lal Chand and to convict the appellants for offence

under Section 304 Part-II of IPC. Learned Additional Government

Advocate has placed reliance on State of Madhya Pradesh Versus

Goloo Raikwar & Anr.: AIR 2016 SC 1182.

7. Learned counsel appearing on behalf of accused appellants -

Dashrath and Devraj contends that Dashrath received as many as

12 firearm injuries, Devraj received 5 firearm wounds, Kajod

received 1 firearm injury and Lal Chand received 8 firearm

injuries, which have not been explained by the prosecution. It is

only after the deceased fired at the appellants that the villagers

attacked the deceased and gave him beating, as a result of which,

he expired. It is argued that after having received firearm injuries,

the appellants were not in a position to retaliate or attack the

deceased. With regard to Lal Chand, it is contended that no injury

is assigned to Lal Chand, no recovery was made from him, no

weapon is stated to be with Lal Chand and his blood stained

clothes were recovered, but were not sent for FSL. Lal Chand has

received 8 gunshot wounds and merely because blood stained

clothes were recovered, it cannot be presumed that the blood

stains was that of the accused.

8. It is contended by the counsel for accused appellants -

Dashrath and Devraj that since the appellants have received

(5 of 10) [CRLA-66/1986]

gunshot injuries, there was no justification for the Court below to

convict the appellants for offence under Section 304 Part-II of IPC.

It is contended by counsel for appellant - Dashrath that first

information to the police was given by Dashrath and FIR number

was 81/1983 and thereafter, FIR of the present case i.e. FIR

No.82/1983 was lodged. In the FIR lodged by Dashrath, it was

specifically mentioned that Charan Singh Sardar has fired at

Dashrath, due to which, many persons have sustained gunshot

injuries. Counsel for the accused appellants has placed reliance on

the judgment of this Court in D.B. Criminal Revision Petition

No.132/1984: Mohammad Noor Versus Bhanwar Lal & Ors. and

one other connected matter decided on 19.07.2022.

9. We have considered the contentions and have carefully

perused the material on record.

10. The prosecution case rests on the evidence of Avtar Singh

(PW-7), son of the deceased, who is aged about 15 years. On the

Parcha Bayan of Avtar Singh, FIR has been lodged. Avtar Singh

(PW-7) in the FIR has mentioned the name and father's name of

the accused and place to which they belonged. Avtar Singh (PW-7)

has not stated anything about the gunshot injuries being caused

to the accused. However, in the court statement, Avtar Singh has

stated that the gun was with Mohan and as to who fired the pistol,

he is not aware. It is evident that incident took place near a

Village Haat in which as per different versions of the witnesses,

there were between 600 to 1000 persons. No independent witness

has been examined on behalf of the prosecution and it is on the

solitary evidence of Avtar Singh (PW-7) that three accused have

been convicted under Section 304 Part-II, one has been convicted

but benefit of probation has been given and one has been

(6 of 10) [CRLA-66/1986]

acquitted. It is pertinent to mention that initial report, which was

lodged with the police, was lodged by Dashrath wherein he has

specifically alleged that deceased Charan Singh fired upon him on

which he received various gunshot wounds. He along with other

persons also sustained gunshot wounds.

11. Contention of counsel for the accused that after Charan

Singh fired at the accused - Dashrath and other persons sustained

pellet wounds, on which, the villagers got enraged and attacked

Charan Singh cannot be brushed aside lightly for the very reason

that Dashrath has sustained gunshot injuries and was shifted in

the bus to a hospital where he was examined by a doctor. In the

explanation given by the accused, they have specifically

mentioned that deceased Charan Singh fired at Dashrath and

many persons received gunshot wounds. Exhibit D-6 is the injury

report of Dashrath as per which he received as many as 12

gunshot wounds. Gunshot wounds were received at left side of

forehead, on front of neck, on left side of chest, on upper 1/2 of

right forearm, in right arm, in back of middle finger, lower 1/3 left

forearm, in front of middle of left thigh, in upper 1/3 of right thigh

and in front of right knee. There was also swelling in all the

wounds.

12. After receiving so many gunshot wounds at different parts of

the body, it is highly improbable that Dashrath would have caused

injuries to deceased Charan Singh. Nagesh Joshi (DW-2), who is

the doctor and examined the accused persons, has stated in his

evidence that he has examined Dashrath and as per the gunshot

wounds that he has sustained, his condition must have been

extremely painful and he would not be in a position to move.

Looking to the medical condition of accused Dashrath, which is

(7 of 10) [CRLA-66/1986]

established from Exhibit D-6 and the statement of doctor -

Nagesh Joshi (DW-2), it can be inferred that the prosecution's

version, which is silent about the use of firearm, is not sterling

worth. Nagesh Joshi (DW-2) on the same day had examined

Kajodi Lal, who had also received one gunshot wound, muscle

deep below the left ear. Witness also examined Devraj, who had

received five gunshot wounds and Lal Chand, who had received 8

gunshot wounds. Nagesh Joshi (DW-2) on the same day had also

examined Ram Lal, who had received one gunshot wound, which

was cavity deep in the right maxillary region and that he has

opined that injury was grievous. The injury report of Ram Lal has

been exhibited as Exhibit D-16. Thus, from the perusal of the

statement of Nagesh Joshi (DW-2) and Exhibit D-6 injury report of

Dashrath, Exhibit D-13 injury report of Kajodi Lal, Exhibit D-14

injury report of Devraj, Exhibit D-15 injury report of Lal Chand

and Exhibit D-16 injury report of Ram Lal, it is evident that all the

accused sustained gunshot injuries; Dashrath sustained 12

gunshot wounds, Devraj sustained 5 gunshot wounds, Kajod and

Ram Lal each sustained 1 gunshot wound and Lal Chand sustained

8 gunshot wounds. The prosecution has utterly failed to explain

the gunshot wounds sustained by the accused.

13. State of Madhya Pradesh Versus Goloo Raikwar & Anr.

(supra) reliance upon which has been placed by the learned

Additional Government Advocate does not apply to the facts of the

present case as we have come to the conclusion that the genesis

of the crime has not been properly placed before the Court and

the gunshot wounds sustained by all the accused persons have not

been explained by the prosecution. No independent witness has

been produced by the prosecution even when there were 600 to

(8 of 10) [CRLA-66/1986]

1000 persons present near the place of occurrence. The accused

Dashrath against whom there was allegation of causing injuries on

the head was not in a position to move and he was shifted in the

bus to the nearby hospital and he was the first to lodge the FIR in

which he has mentioned that deceased Charan Singh opened fire.

The judgment of the Court below thus cannot be sustained.

14. The prosecution story rests on the statement of Avtar Singh

(PW-7), who is son of the deceased. It is evident that in the

Parcha Bayan, which was lodged by Avtar Singh (PW-7), name

and father's name of the accused has been mentioned, however,

in his cross-examination, this witness has admitted that he never

had any work with Kajod and Ram Lal, that he has never visited

Village Reddi, he had no work ever with Dashrath and he had

never visited the house of Lal Chand and he had no work

whatsoever with Lal Chand. He has specifically stated that prior to

the date of the incident, he never had any work with any of the

accused persons. Non-explanation of the gunshot wounds on the

accused, the fact that Avtar Singh (PW-7), who is a boy aged

around 15 years, never had any work with the accused, as also

the fact that on the day of occurrence there was a village Haat in

which around 600 to 1000 persons were present, the defence put

up by the accused that deceased Charan Singh fired at Dashrath

and because of the fire, gunshot wounds were received by all the

accused and the probability that villagers must have beaten

deceased Charan Singh cannot be ruled out.

15. Avtar Singh (PW-7) has shown the presence of Brij Mohan,

Chauthmal, Ram Kumar and Satya Narayan at the time of

incident. Ram Kumar (PW-1) and Brij Mohan (PW-4) have turned

hostile and Chauthmal (PW-5) has stated that when the incident

(9 of 10) [CRLA-66/1986]

started, he left the place. He has also stated that he is not aware

that Dashrath, Kajod, Lal Chand and Devraj received gunshot

wounds. Durga Lal (PW-6) and Baba Singh (PW-9) are witnesses,

who narrated about some prior enmity between the parties. The

fact that there was prior enmity between the parties can be a

reason for Charan Singh opening fire on the accused side. Non-

explanation of the injuries i.e. gunshot wounds caused to almost

all the accused clearly points towards the prosecution concealing

the genesis of the crime. The prosecution story is thus not sterling

worth and the offence against the accused is not proved beyond

reasonable doubt. We, therefore, do not find any force in the

appeal preferred by the State and is accordingly, dismissed.

16. As far as appeals preferred by appellants - Dashrath and

Devraj are concerned, since Dashrath and Devraj both have

received gunshot wounds, which are not explained and as per the

doctor, Dashrath was not in a position to move, the fact that he

had caused injuries to the deceased becomes doubtful. In the light

of the above, the conviction of appellants - Dashrath and Devraj

under Section 147 IPC and Section 304 Part-II read with Section

149 IPC cannot be sustained. The appeals preferred by appellants

- Dashrath and Devraj are accordingly allowed. They are acquitted

from the charges levelled against them and their bail bonds

submitted by them stand cancelled.

17. Consequently, D.B. Criminal Appeal No.66/1986 filed by the

State is dismissed and D.B. Criminal Appeal Nos.238/1985 and

248/1985 filed by appellants - Dashrath and Devraj are allowed.

18. Appellants, namely, Dashrath and Devraj are directed to

furnish personal bond in the sum of Rs.50,000/- and a surety

bond in the like amount in accordance with Section 437-A of

(10 of 10) [CRLA-66/1986]

Cr.P.C. before the Deputy Registrar (Judicial) within two weeks

from the date of release to the effect that in the event of filing of

Special Leave Petition against this judgment or on grant of leave,

the appellants on receipt of notice thereof, shall appear before the

Hon'ble Apex Court. The bail bond will be effective for a period of

six months.

                                   (SAMEER JAIN),J                                           (PANKAJ BHANDARI),J

                                   SUNIL SOLANKI /PS









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