Chhotulal Anr vs State
2022 Latest Caselaw 1217 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 1309/2017

1.     Chhotulal S/o Nanda, By Caste Gujar
2.     Gopal Lal S/o Nanda, By Caste Gujar
       Both Residents Of Biliyakala, Police Station Hamirgarh,
       District Bhilwara.
       (Accused Appellants are in Jail At Bhilwara)
                                                                 ----Appellants
                                   Versus
State Of Rajasthan
                                                                ----Respondent


For Appellant(s)         :     Mr. V.N. Kalla
                               Mr. Bhagat Dadhich
For Respondent(s)        :     Mr. B.R. Bishnoi, AGC



           HON'BLE MR. JUSTICE SANDEEP MEHTA
              HON'BLE MR. JUSTICE SAMEER JAIN

                             JUDGMENT

Judgment pronounced on                 :::            27/01/2022
Judgment reserved on                   :::            15/11/2021



BY THE COURT : (PER HON'BLE MEHTA, J.)

The appellants herein have been convicted and sentenced as

below vide judgment dated 06.02.2017 passed by the learned

Additional Sessions Judge No.1, Bhilwara in Sessions Case

No.02/2013:

Offences            Sentences                  Fine             Fine  Default
                                                                sentences
Section 120B IPC 10 Years' R.I.                Rs.3,000/- 3 Months' R.I.

Section 302 IPC     Life Imprisonment Rs.5,000/- 3 Months' R.I.





                                       (2 of 15)                [CRLA-1309/2017]

2. Being aggrieved of their conviction and sentences, the

appellants have preferred the instant appeal under Section 374(2)

Cr.P.C.

3. Brief facts relevant and essential for disposal of the appeal

are noted herein below:

4. Smt. Rekha (PW-3) lodged a written report (Ex.P/4) to the

SHO Police Station Hamirgarh, District Bhilwara on 09.09.2012

alleging inter alia that her husband Amra had gone to the Banas

river for loading a water tanker at 07.00 AM. He had loaded the

tanker from the well of Radheshyam Keer and was returning. On

his way back, Chhotulal son of Nanda Gujar and Gopal son of

Nanda Gujar, obstructed Shri Amra and thrashed him with an iron

tami due to which, he received serious injuries on his hands, legs

and abdomen. Upon getting the information, she, her brother-in-

law Kanaji and Foolji Suthar, took the injured to the Bhilwara

hospital where, he disclosed the details of the assault to the

informant and his brother Kishan. It was further alleged that as

the condition of Shri Amra was quite serious, he was referred to

Udaipur for further treatment.

5. On the basis of this report, FIR No.151/2012 (Ex.P/39) came

to be registered at the Police Station Hamirgarh, District Bhilwara

for the offences punishable under Sections 341, 323 and 307 IPC

and investigation was commenced. The I.O. proceeded to the

place of the incident, prepared the Site Inspection Plan, etc. The

injured Shri Amra, who had been taken to Maa Gayatri Hospital,

Udaipur, was operated upon but he did not survive and passed

(3 of 15) [CRLA-1309/2017]

away on the very same day i.e. 09.09.2012 at about 10 O' Clock.

His dead body was subjected to postmortem (Ex.P/40) at the

Maharana Bhupal General Hospital, Udaipur by Dr. Manish Kumar

Sharma (PW-39) who took note of various injuries on the body of

the deceased. Lacerated wounds were present on both the legs

which were bearing deformities associated with fractures. The left

arm was also deformed and was fractured. A few abrasions were

also noticeable on the body. The cause of death was opined to be

haemorrhagic shock owing to cumulative effect of injuries to the

abdomen and the other injuries, which were sufficient in the

ordinary course of nature to cause death. As Shri Amra passed

away, the offence under Section 302 IPC was applied to the case.

The appellants were arrested and acting in furtherance of the

informations provided by them to the I.O. under Section 27 of the

Evidence Act, an iron tami and a wooden stick were recovered

from the accused Chhotulal and Gopal vide seizure memos

(Ex.P/18 and Ex.P/19) respectively.

After concluding the investigation, a charge-sheet came to

be filed against the accused appellants and one Kishanlal Gujar for

the offences punishable under Sections 302 and 120B IPC. As the

offence punishable under Section 302 IPC was Sessions triable,

the case was committed to the court of Sessions Judge, Bhilwara

from where, the same was transferred to the Court of the

Additional Sessions Judge No.1, Bhilwara for trial. The trial court

framed charges against the accused appellants and Kishanlal for

the offences punishable under Sections 120B IPC and Section 302

read with Section 120B IPC. The appellants pleaded not guilty and

claimed trial. The prosecution examined as many as 39 witnesses

and exhibited 59 documents and marked 11 articles to prove its

(4 of 15) [CRLA-1309/2017]

case. The accused were questioned under Section 313 Cr.P.C. and

upon being confronted with the circumstances appearing against

them in the prosecution evidence, they denied the same and

claimed to be innocent but no oral evidence was led in defence.

After hearing the arguments advanced by the learned Public

Prosecutor and the defence counsel and, appreciating the

evidence available on record, the learned trial court did not find

the charges proved against the accused Kishanlal who was

acquitted by extending benefit of doubt to him. However, the

accused appellants were convicted and sentenced as above by the

Judgment dated 06.02.2017 which is assailed in this appeal.

6. Learned counsel Shri V.N. Kalla and Shri Bhagat Dadhich,

representing the appellants, vehemently and fervently urged that

the entire prosecution case is false and fabricated. No one actually

saw the assault and it is a case of blind murder. The prosecution

has not been able to attribute any significant motive to the

appellants for committing the murder. The entire case of

prosecution is based on the theory of oral dying declaration

allegedly made by Shri Amra while he was alive. In this regard,

the learned defence counsel contended that there are grave

contradictions in the statements of the material prosecution

witnesses about the time and place where the oral dying

declaration was made by Shri Amra. They referred to the

testimony of the Medical Jurist Dr. Vishwadutt Sharma (PW-27)

and urged that looking to the grave condition of Amra, wherein,

his Blood Pressure was not even recordable, it is impossible to

believe that he would have been in a position to make such an

oral dying declaration. It was further contended that the FIR is

(5 of 15) [CRLA-1309/2017]

totally silent regarding the time at which the first informant came

to know about the alleged assault; the person who informed Smt.

Rekha (PW-3) about the incident and the mode of transportation

by which, Shri Amra was taken to the hospital. They thus urged

that the entire theory of prosecution that Amra, even after

receiving the injuries, was in a fit condition or that he made oral

dying declarations to the witnesses, cannot be believed. They

further contended that admittedly, the injured Amra was taken to

the Government Hospital at Hamirgarh after the incident.

However, the doctor who examined/treated Shri Amra at the

Hamirgarh Hospital was not examined in evidence. They further

submitted that the police had been informed of the incident and

the Constable Shri Kailash Chandra (PW-20), who was posted at

the Police Station Hamirgarh, reached the MG Hospital, Bhilwara

and gave a requisition to the Medical Officer for conducting

medical examination of the injured but he was informed that Amra

had been referred to Udaipur for treatment. Learned defence

counsel further urged that the FIR came to be filed on 09.09.2012

at 08.15 PM. Before that, numerous opportunities were presented

to the members of the complainant party to report the matter to

the police but, they made no attempt whatsoever to lodge the

FIR. They thus urged that ex-facie, the theory set out in the

evidence of the prosecution witnesses that the accused appellants

were the assailants, is totally unacceptable and has not been

proved by cogent evidence. Learned defence counsel further urged

that the recoveries of the weapons which were shown to have

been effected from the appellants, are fabricated. On these

grounds, learned counsel representing the appellants, implored

(6 of 15) [CRLA-1309/2017]

the Court to accept the appeal, set aside the impugned Judgment

and acquit the accused appellants of the charges.

7. Learned Public Prosecutor, on the other hand, vehemently

and fervently opposed the submissions advanced by the

appellants' counsel. He contended that Smt. Rekha was earlier

married to the accused Kishanlal (the acquitted accused). Amra

took her in Naata and thus, Kishanlal and his brothers i.e. the

appellants herein, had a grudge against the deceased. The

deceased was coming back from the well of Radheshyam Keer

after loading the water tanker on 09.09.2012 and the accused got

an opportunity to take revenge. They waylaid Shri Amra,

obstructed him and brutally assaulted him with an iron tami and a

wooden stick causing extensive damage to his upper and lower

limbs and so also the abdominal area which led to excessive

bleeding and proved fatal. He submitted that the witnesses Rekha

(PW-3), the first informant, Kanhaiya Lal (PW-4), Shobha (PW-7),

Udailal (PW-9), Kishanlal (PW-10), Mitthulal (PW-12), have given

convincing evidence on the important circumstance of oral dying

declaration made by the deceased in presence of these witness

which is sufficient to affirm the guilt of the accused in this case.

He further pointed out that the material prosecution witnesses

have also given convincing evidence of motive against the

appellants.

Kishanlal (acquitted accused), brother of the appellants

herein, was married to Rekha, however, Amra took away Rekha in

Naata and thus, Kishanlal was seriously miffed with Amra. He

instigated the two accused appellants to attack and kill the

deceased Amra. He also referred to the testimony of Dr.

(7 of 15) [CRLA-1309/2017]

Vishwadutt Sharma (PW-27), who was posted as a Medical Jurist

at the MG Hospital, Bhilwara and examined the injured Amra while

taking note of his serious condition and referred him to Udaipur.

He also referred to the testimony of Dr. Meenakshi Sharma (PW.-

28), General Surgeon at Maa Gayatri Hospital, Udaipur, who

carried out surgical procedure on the abdomen of the injured

Amra wherein, 5000 cc of blood was taken out. The doctor took

note of the serious injuries on the wall of the abdomen and

jejunum. Reference was also made to the evidence of Dr. Yogesh

Kumar (PW-37) who undertook treatment of the victim at Maa

Gayatri Hospital and participated in the surgery. The doctor also

gave opinion that the cause of death of the victim was excessive

bleeding. Learned Public Prosecutor also referred to the evidence

of Dr. Manish Kumar Sharma (PW-39) who conducted autopsy of

the dead body of the victim taking note of the above mentioned

injuries and gave an opinion that the cause of death of Shri Amra

was cumulative effect of injuries to abdomen and the other body

parts. Learned Public Prosecutor thus submitted that the

prosecution has proved its case as against the accused appellants

by unimpeachable evidence and hence, the impugned Judgment

does not warrant any interference.

8. We have given our thoughtful consideration to the

submissions advanced at bar and, have gone through the material

available on record and have minutely re-appreciated the evidence

available on record.

9. The prosecution case is purely based on circumstantial

evidence because there is no direct evidence of the incident

(8 of 15) [CRLA-1309/2017]

involving assault made Shri Amra. Primarily, the prosecution case

is based on the theory of motive and dying declaration because

the weapons and the clothes recovered at the instance of the two

accused did not give any test for presence of human blood as per

the FSL Report (Ex.P/43). Hence, the FSL report does not provide

any corroboration to the prosecution case as against the accused.

Thus, this Court would be required to appreciate whether the

theory of dying declaration as portrayed in the FIR (Ex.P/39) and

in the testimony of the witnesses Rekha (PW-3), the first

informant, Kanhaiya Lal (PW-4), Shobha (PW-7), Udailal (PW-9),

Kishanlal (PW-10) and Mitthulal (PW-12) is tenable.

10. We now proceed to discuss the evidence of witnesses who

have deposed regarding the oral dying declaration allegedly made

by Amra. Firstly, we may take note of the fact that the incident

took place on 09.09.2012 sometime after 07.00 AM when the

deceased Shri Amra was coming back from the well of

Radheshyam Keer after loading the water tanker. The FIR came to

be submitted on 09.09.2012 at 08.15 PM. Smt. Rekha, the first

informant alleged in the FIR that while her husband was admitted

in the Bhilwara Hospital, he made a disclosure regarding the

incident to her and her brother Kishanlal. If we peruse the

testimony of Rekha, it becomes clear that she alleged that her

husband told her that Chhotulal and Gopal had beaten him.

However, the witness did not state as to what were the weapons

which were used by the accused to perpetrate the assault. For the

sake of repetition, it may be mentioned here that in the FIR, the

averment regarding the oral dying declaration being made, is only

limited to Rekha and Kishanlal. However, at the trial, Kanhaiya Lal

(9 of 15) [CRLA-1309/2017]

(PW-4) also claimed to have overheard the oral dying declaration

made by the deceased. He stated that he along with Shri

Phoolchand, went to the place of incident where Amra was lying.

Upon asking, Amra told that Rekha's brothers-in-law had beaten

him. The witness added that he does not know Rekha's brothers-

in-law. The witness further stated that Amra told a person of Keer

community to move his tractor to the side on which, these two

persons came and assaulted him. The witness further stated that

Amra was taken to the MG Hospital, Bhilwara where he was

provided treatment. However, looking to his serious condition, he

was referred to Udaipur where he passed away. The witness did

not state that the deceased made any oral dying declaration while

he was admitted in the hospital at Bhilwara.

11. Phoolchand (PW-6) did not support the prosecution case and

was declared hostile.

12. Shobha (PW-7) stated in her evidence that Amra was beaten

by Nandlal, Gopal, Chhotulal and Kishanlal and that Amra himself

told her about this incident at the MG Hospital, Bhilwara. She

further stated that as Amra was quite serious, he was referred to

Ahmedabad and on the way, he passed away.

13. Hanja (PW-8) did not support the prosecution story and was

declared hostile.

14. Udailal (PW-9) stated that Shyamlal's brother called him and

told that Amra had been beaten. He reached the MG Hospital,

Bhilwara and asked the victim about the incident on which, he

(10 of 15) [CRLA-1309/2017]

replied that he was crossing the Banas River with his water tanker

at which point of time, Gopal, Chhotulal and 5-6 other persons

came around and beat him up with an iron tami.

15. Kishnalal (PW-10) also stated that he came to know that his

brother-in-law Amra had been assaulted. He went to the hospital

where Amra told him that he had been beaten by Chhotulal and

Gopal. At that time, Amra was not able to breathe and oxygen had

been applied to assist in his respiration. He was taken to the

Keshav Hospital from where, he was referred to Udaipur.

16. Mitthulal (PW-12) also stated that he heard about the

incident on which, he went to MG Hospital, Bhilwara and saw Amra

in a gravely injured condition. He asked Amra about the incident

on which, he replied that Chhotulal and Gopal had beaten him

with lathis and sariyas. The witness told the nursing staff to apply

oxygen to the injured. On the insistence of the witness, the

injured repeated that he had been beaten by Gopal and Chhotulal.

These were the witnesses who gave evidence regarding the

oral dying declaration. On a perusal of statements of these

witnesses, it is apparent that there are grave contradictions in

their testimony regarding the exact number of assailants, the

weapons which they used and the time and place at which the

victim made the dying declaration.

17. Kailash Chandra (PW-20) was posted as Constable at the

Police Station Hamirgarh. He was given instructions to proceed to

the MG Hospital, Bhilwara to find out about the injured Amra.

(11 of 15) [CRLA-1309/2017]

However, by the time the witness reached the hospital, Shri Amra

had been referred to Udaipur.

18. Shyamlal (PW-22), brother of the deceased, gave evidence

to the effect that he got a call from some person of Jat community

that his brother Amra had been beaten by Chhotulal, Gopal and

Kishanlal. The Jat was present at the spot and he gave a call from

there. The witness was in Jalore at the time of the incident and by

the time, he reached Udaipur, Shri Amra had passed away.

Apparently thus, as per this witness, a person of Jat

community actually witnessed the assault but the I.O. seems to

have made no effort whatsoever to trace him out. The only

medical officer from the MGH Bhilwara, who was examined by the

prosecution, was Dr. Vishvadutt Sharma (PW-27). The witness

stated in his evidence that he examined Amra and prepared the

injury report (Ex.P/33) at 02.00 PM. and therein, it is clearly

recorded that the patient was in a state of neurogenic shock and

his B.P. was not recordable. The injured had been treated by Dr.

Sunil Upmanyu. The admission card, the discharge ticket and the

referral card were not available on the record.

Therefore, there is a strong reason to believe that the

condition of the deceased when he was brought to and was got

admitted in the MG Hospital, Bhilwara was very serious.

Considering the statement of Dr. Vishwadutt Sharma (PW-27) that

the BP and pulse of Amra were not recordable, the possibility of he

having been in a position to make the oral dying declaration, was

absolutely bleak. From the evidence of Dr. Meenakshi Sharma

(PW-28), it becomes clear that she noticed significant injuries on

the abdomen and the jejunum of the injured and the volume of

(12 of 15) [CRLA-1309/2017]

blood which was taken out from the abdominal cavity after

surgery was 5000 cc. As the injury to abdomen was very

significant, the bleeding must have taken place very quickly and

that is why, BP and pulse of the victim were not recordable when

Dr. Vishwadutt Sharma examined him and issued the Medico Legal

Report (Ex.P/33).

19. Therefore, we are of the firm opinion that non production of

the admission ticket/ discharge ticket/ treatment record of the

injured from the Bhilwara Hospital and, non-examination of Dr.

Sunil Upmanyu, who treated the victim at the MG Hospital,

Bhilwara, creates a grave doubt in the mind of the Court regarding

conditin of Shri Amra when he was brought to the hospital. This

Court cannot be convinced that the injured would have been in a

position to make the oral dying declaration as alleged by the

witnesses referred to supra.

20. Additionally, we may also note that there are grave

contradictions in the statements of the matter witnesses regarding

the exact words allegedly spoken by the injured so as to constitute

valid and convincing evidence of oral dying declaration. In this

regard, we would like to refer to the following observations made

by Hon'ble the Supreme Court in the case of Darshana Devi vs.

State of Punjab reported in (1995) Supl. 4 SCC 126:

"There is variance in the statements of the two witness with regard to the exact words allegedly used was not in a fit condition to make a statement after the police had arrived at the hospital at about 3.45 a.m.,in response to the police query. We, therefore, find it difficult to believe, as PW3 would like us to, that a

(13 of 15) [CRLA-1309/2017]

patient with extensive burn injuries whose pulse could not be felt and whose blood pressure could not be recorded, was mentally fit and making a coherent statement that he had been burnt by his wife, keeping in view the concentration of alcohal in his blood, so as to be heard so clearly by PW3. It does not appear probable to us that the deceased could have made the statement as is being attributed to him by PW3. Even without the burn injuries, because of the alcohal concentration found in the body of the deceased, he could not be making a coherent. We therefore, find it difficult to rely upon the statement of PW3."

21. The incident took place on 09.09.2012 in the morning at

about 7 O' Clock. The complainant Smt. Rekha claims to have

been informed well in time regarding the alleged assault made on

her husband. Yet, the FIR (Ex.P/4) came to be submitted as late

as at 08.15 pm. on 09.09.2012. This delay castes a doubt on the

reliability of the evidence of the first informant Smt. Rekha and

the entire prosecution case.

22. Therefore, we have no hesitation in holding that the trial

court committed a grave factual error in placing implicit reliance

on the testimony of the prosecution witnesses, referred to supra,

that the deceased made an oral dying declaration before them

that he had been assaulted by the appellants herein. The evidence

of oral dying declaration is not reliable and hence, no credence

can be given thereto. Other than that, no significant evidence was

led by the prosecution so as to establish complicity of the

appellants in the crime.

(14 of 15) [CRLA-1309/2017]

23. In wake of a threadbare analysis of the prosecution

evidence, we are of the firm opinion that the prosecution has

failed to lead cogent and clinching evidence, sufficient to bring

home the guilt of the appellants. The exercise of evaluation of

evidence undertaken by the trial court and the conclusions drawn

in the impugned Judgment for convicting the appellants herein,

are not based on an apropos appreciation of the evidence

available on record. Hence, the impugned Judgment cannot be

sustained.

24. As an upshot of the above discussion, the appeal deserves to

be accepted. The impugned Judgment dated 06.02.2017 passed

by the learned Additional Sessions Judge No.1, Bhilwara in

Sessions Case No.02/2013, is hereby quashed and set aside. The

appellants are acquitted of all the charges. They are in custody.

They shall be released from prison forthwith if not wanted in any

other case.

The appeal is allowed accordingly.

25. However, keeping in view the provisions of Section 437-A

Cr.P.C., each of the appellants is directed to furnish a personal

bond in the sum of Rs.40,000/- and a surety bond in the like

amount before the learned trial court, which shall be effective for

a period of six months to the effect that in the event of filing of a

Special Leave Petition against the present judgment on receipt of

notice thereof, the appellant shall appear before the Supreme

Court.

(15 of 15) [CRLA-1309/2017]

26. Record be returned to the trial court forthwith.

                                   (SAMEER JAIN),J                                        (SANDEEP MEHTA),J


                                   4-/Tikam Daiya/ Devesh/-









Powered by TCPDF (www.tcpdf.org)