Rajasthan High Court - Jodhpur

Gokal Ram vs State on 1 August, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 110/1990

Lrs Of Ghewar Ram

----Appellant Versus State

----Respondent Connected With S.B. Criminal Appeal No. 134/1990 Gokal Ram

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. Jagmal Singh Choudhary, Sr. Adv.

Assisted by Mr. Pradeep Choudhary.

Mr. Deepak Bishnoi For Respondent(s) : Mr. Mahipal Bishnoi, P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 27/07/2022 Pronounced on 01/08/2022

1. These Criminal Appeal under Section 374 Cr.P.C. have been

preferred praying for the following reliefs:-

In S.B. Criminal Appeal No. 110 of 1990:-

"It is, therefore, prayed that this Hon'ble court will be pleased to send for the record of the court below, peruse the same and after perusal, quash the conviction and sentences passed against the appellant, pass any other Orders that this Hon'ble court deems fit and proper."

(2 of 12) [CRLA-110/1990]

In S.B. Criminal Appeal No. 134/1990:-

"It is, therefore, most respectfully prayed that the appeal of the appellant may kindly be allowed, the conviction and sentence passed by the learned Sessions Judge against the appellant be set aside and he may kindly be acquitted of the charges levelled against him."

2. The matter pertains to an incident that occurred in the

year 1985 and the present appeal has been pending since 1990.

3. The Criminal Appeals both arise out of a common

controversy and assail the judgment, dated 30.03.1990, passed

by the learned Sessions Court below. Brief facts of the case, as

placed before this Court, are that on 07.03.1985, the

complainant Jor Singh, lodged an F.I.R. at Police Station Peepad

City, alleging therein that on that day, at about 10/11 a.m. while

Ghewar Ram and Gokal Ram, the accused appellants herein,

and two other persons, Poona Ram and Khangar @ Khangara

Ram, during the ceremony of distribution of 'charnamrit' at the

temple of Bishnois (at Dharamshala / temple at village

Ramdawas), were not allowed to participate in the same, due to

some outstanding dues towards some penalty on them, which

remained unpaid, the accused returned to the scene with

firearms, and assaulted certain persons, resulting in injuries to

P.W. 2 Munna Ram, P.W. 8 Khangara ram, P.W. 13 Bagra Ram

and P.W.15 Hanuta Ram, while the brother of the complainant,

Manohar Singh, died as a result of injuries sustained by him

during the said incident in question.

3.1 Charges for the offences under Section 302 and 307 I.P.C.

along with 3/27 Arms Act, 1959 were levelled against the

(3 of 12) [CRLA-110/1990]

accused appellants, while those for the offences under Sections

302/34, 307/34 and 323 I.P.C. were levelled against the other

two aforementioned persons.

3.2 And that, subsequently, Poona Ram and Khangar Ram

were acquitted from all the charges levelled against them

therein, and while Ghewar Ram and Gokal Ram were acquitted

for the offences under Sections 302 and 307 I.P.C., Ghewar Ram

was convicted for the offence under Section 304 II I.P.C and

Section 27 Arms Act and Gokal Ram was convicted for the

offence under Section 324 I.P.C. and Section 27 of the Arms Act,

1959.

3.3 Ghewar Ram was sentenced to 6 years R.I. along with a

fine of Rs. 50/- in default of payment of which he was to

undergo further 1 month R.I. and 2 years R.I. along with a fine

of Rs. 50/- in default of payment of which he was to further

undergo 1 month R.I., respectively, for the offences as above

mentioned. While Gokal Ram was sentened to 1 year R.I. and 2

years R.I. along with a fine of Rs.50/- respectively for the

offences as above mentioned.

4. Learned counsel for the appellant in S.B. Criminal Appeal

No. 110 of 1990 (hereinafter referred to as "the first appellant")

Mr Deepak Bishnoi submits that Ghewar Ram filed a counter

F.I.R. on the very same day as that of the complainant alleging

firing of weapons by the deceased, Manohar Singh, and that 9

accused persons were named therein.

4.1 It is further submitted that learned Court below erred in

passing the order impugned, on the basis of the evidences

placed on the record, as the testimonies of the prosecution

(4 of 12) [CRLA-110/1990]

witnesses are rife with contradictions. Furthermore, that the

village was divided into two factions, and given that the

prosecution witnesses belonged to the other faction, it makes

their testimonies all the more unreliable.

4.2 It is also submitted that the accused also sustained injuries

as the result of the scuffle that broke out on the day of the

incident in question, and that the same was not fully considered

by the learned Court below before arriving at the conviction of

the accused appellants herein. And that, the same is evident

from the fact that the learned Court below constituted a Board

to examine the injuries sustained by the accused, which stated

that the accused also suffered injuries as a result of firearms

being shot at them, in contradiction of the medical testimony

given by P.W. 1 Dr Dinesh Purohit who stated that the accused

only had injuries from blunt weapons.

4.3 It is further submitted that the deceased was the

aggressor, as also averred in the counter F.I.R. filed by the first

appellant, and that the appellant acted in his right of self

defence.

4.4 It is also submitted that the bullet which resulted in the

death of the deceased, Manohar Singh is not attributable to the

first appellant, given that both parties, inclusive of multiple

persons opened fire at each other, and therefore, singling out

the first appellant and convicting him for the same, in the light

of cogent evidence for the same, is unsustainable in the eye of

law. And that, neither are the ingredients for a conviction under

Section 304 II I.P.C. made out against the accused first

appellant, as he did have the intention nor the knowledge to

(5 of 12) [CRLA-110/1990]

cause the death of Manohar Singh, as is the case of the

prosecution.

4.5 It is also submitted that the learned Court below rightly

appreciated the evidence and acquitted the other accused

persons, as abovementioned and although the accused-

appellants were on the same pedestal as them, were incorrectly

convicted for the offences as abovementioned, and that the

order impugned therefore deserves to be quashed to the extent

of their conviction.

4.6 It is also submitted that the first appellant, Ghewar Ram,

was granted bail by this Hon'ble Court on 02.04.1990 in S.B.

Criminal Misc. Bail Application No. 119/1990 (in S.B. Criminal

Appeal No. 110/1990). And that, he passed away during the

pendency of the appeal, and that on 23.02.2017 this Court was

informed of his demise, and his legal representatives were taken

on record, vide order of this Hon'ble Court on 07.03.2017 and

therefore, the appeal survives.

4.7 It is also submitted that the first appellant has suffered as

a consequence of the errant conviction against him vide the

impugned order, and was dismissed from service, on

13.06.1995.

5. Mr. Jagmal Singh Choudhary, learned Senior Counsel

assisted by Mr. Pradeep Choudhary, appearing on behalf of the

appellant in S.B. Criminal Appeal No. 134 of 1990 (hereinafter

referred to as "the second appellant") submitted that the

learned Court below has erred in convicting the second

appellant on the basis of unreliable witness testimony.

(6 of 12) [CRLA-110/1990]

5.1 It is further submitted that it was deposed by P.W. 2 Muna

Ram and P.W. 3 Harlal that the second appellant was standing at

the chabutra of the temple during the incident in question, but

neither of them made any such statement before the police,

evident from Ex.D/3 and Ex.D/4, respectively.

5.2 It is also submitted that in similar manner, the testimonies

of witnesses P.W. 3 Khangar Ram and P.W. 13 Bangda Ram

should be thrown out and disbelieved owing to the fact that the

averments made by them therein were not made by them in the

statements made to the police, at Ex. D/5 and Ex. D/7, and are

therefore concocted and false.

5.3 It is further submitted that the testimonies of the

witnesses, as above mentioned, are contradictory as to the type

of the weapon that the second appellant was allegedly armed

with, and therefore the offence against the second appellant for

the offences under Section 324 I.P.C. and Section 27 Arms Act,

1959 is not proven beyond all reasonable doubt.

5.4 It is also submitted that the testimony of P.W. 19 Sajjan

Sinh reveals that no bullet shells were recovered from the

chabutra, further poking holes in the version of the prosecution

as to the involvement of the second appellant in the incident in

question.

5.5 It is further submitted that the scuffle that broke out

between the parties, was also owing to an old rivalry between

the two factions in the village, and therefore the testimony of

prosecution witnesses, already rife with contradictions, should

be disbelieved on the said ground.

(7 of 12) [CRLA-110/1990]

5.6 It is also submitted that the second appellant, Gokal Ram,

was granted bail by this Hon'ble Court on 25.04.1990 in S.B.

Criminal Misc. Bail Application No. 141/1990 (in S.B. Criminal

Appeal No. 134/1990).

5.7 Learned Senior Counsel placed reliance on the judgment of

this Hon'ble Court in S.B. Criminal Revision Petition No.

1084/2015 titled Shivchand and Ors. Vs. State of

Rajasthan and Anr.

5.8 Learned Senior Counsel for the second appellant however,

makes a limited prayer that the accused-appellant may be

granted benefit under Section 4 of the Probation of Offenders

Act, 1958 (hereinafter referred to as 'the Act').

"4. Power of court to release certain offenders on probation of good conduct.--

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(8 of 12) [CRLA-110/1990]

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3)...

(4)...

(5)... "

6. Learned Counsel for the accused-appellants submits that

the accused-appellants do not have any criminal antecedents to

their discredit.

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

submissions made on behalf of the accused-appellants, and

submits that the learned Court below has rightly passed the

impugned judgment after looking into the facts and

circumstances of the present case, and the evidences placed on

the record.

8. Heard learned counsel for both parties, and perused the

record of the case.

9. This Court observes that looking into the evidences placed

on the record, finds that the learned Court below has rightly

proceeded with the conviction of the accused-appellants herein,

and that the prosecution was able to prove its case beyond

reasonable doubt.

10. This Court further observes that the learned Court below,

has fairly convicted the accused-appellant Ghewar Ram for the

offence under Section 304 II I.P.C. and Section 27 of the Arms

Act 1959, and rightly rejected the argument that no intention or

motive existed on the part of the said accused appellant, as the

same was baseless and without merit, owing to the facts and

circumstances of the present case.

(9 of 12) [CRLA-110/1990]

11. This Court also observes that the submissions advanced on

behalf of the accused-appellant Gokal Ram do not satisfy this

Court to merit interference with regard to his conviction, nor

bring his case within the realm of reasonable doubt to merit

conviction, and the learned Court below has rightly proceeded in

convicting him for the offence under Section 324 I.P.C. and the

same has been proven against him, with the assistance of

medical evidence and witness testimonies. Minor inconsistencies

in the same, do not warrant fully disregarding the same.

12. This Court takes into consideration the following

judgments;

12.1 In Arvind Mohan Sinha Vs. Amulya Kumar Biswas

(1974) 4 SCC, the Hon'ble Apex Court observed as under:-

"The Probation of Offenders Act is a reformative measure and its object is to reclaim amateur offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society.

In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. But the novice who strays into the path of crime ought, in the interest of society, be treated as being socially sick. Crimes are not always rooted in criminal tendencies and their origin may lie in psychological factors induced by hunger, want and poverty. The Probation of Offenders act recognises the importance of environmental influence in the commission of crimes and prescribes a remedy whereby the offender can be reformed and rehabilitated in society."

12.2 In Brij Lal Vs. State of Rajasthan RLW 2002 Raj 945, a

Coordinate Bench of this Court observed as under:-

(10 of 12) [CRLA-110/1990]

"Under Section 4 of the Probation of Offenders Act nature of offence is one of the major-criteria for determining whether benefit of this provision should be given to the concerned offender or not. His age would be another relevant factor and the circumstance in which the offence was committed may be 3rd important consideration... "

12.3 In Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC

198, while reiterating the ratio decidendi laid down in Dalbir

Singh Vs. State of Haryana, (2000) 5 SCC 82, the Hon'ble

Apex Court observed as under:-

"... The Court has further opined that though the discretion as been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient..."

12.4 In Lakhvir Singh and Ors. Vs. The State of Punjab and

Ors. (2021) 2 SCC 763 wherein the Hon'ble Apex Court of India,

with regard to the application of the Probation of Offenders Act,

1958 vis-a-vis those Acts wherein a minimum sentence of

imprisonment has been prescribed by the legislature, observed as

under:-

"Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the PC Act') prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where

(11 of 12) [CRLA-110/1990]

a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE v. Bahubali (1979) 2 SCC 279. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act.5 It is in this context, it was observed in State of Madhya Pradesh v. Vikram Das (Supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence Under Section 397 of Indian Penal Code, the offence in the present case. In fact, the observation made in Joginder Singh v. State of Punjab ILR (1981) P & H 1 are in the same context."

13. This Court observes that there is no material on record that

the second appellant have any criminal antecedents.

14. As an upshot of the above discussion, the conviction of

accused-appellant, now deceased Ghewar Ram is maintained, and

the impugned judgment is upheld, to the said extent and

therefore S.B. Criminal Appeal No. 110/1990 is dismissed.

However, owing to the fact that Ghewar Ram passed away during

the pendency of the appeal, no consequential order with regard to

his sentence is required to be passed.

15. However, this Court after taking into due consideration the

legislative intent of the Act and the decisions rendered by the

Hon'ble Apex Court in Arvind Mohan (supra), Mohd. Hashim