Shivshankar vs State Of Rajasthan Through Pp
2022 Latest Caselaw 4729 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                D.B. Criminal (Jail) Appeal No. 521/2017

 Shivshankar S/o Madho Lal, resident of Village Khatkar, Police
 Station Gandoli, District Bundi (Rajasthan).
 (Accused confined in District Jail Bundi)
                                                                         ----Appellant
                                          Versus
 State Of Rajasthan Through PP
                                                                       ----Respondent

For Appellant(s) : Mr. Kapil Gupta, Amicus Curiae with Mr. R.N. Sinsinwar, Adv.

For Respondent(s)               :     Ms. Rekha Madnani, AGA



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

                                       Judgment

RESERVED ON                                     ::                      06/07/2022
PRONOUNCED ON                                   ::                      12/07/2022
(Per Pankaj Bhandari, J)

1. Though the matter has come up before the Court on the

miscellaneous application for suspension of sentence

No.556/2022, but with the consent of learned counsel for the

parties, the matter is heard finally at this stage.

2. The appellant has preferred the instant appeal aggrieved by

the judgment and order of sentence dated 16.01.2016 passed by

the learned Additional Sessions Judge No.1, Bundi whereby the

appellant has been convicted for offence under Section 302 of the

Indian Penal Code (hereinafter referred to as "the IPC") and has

been sentenced to life imprisonment and fine of Rs.5,000/- and on

(2 of 7) [CRLA-521/2017]

non-payment of the fine, to further undergo six months simple

imprisonment.

3. Briefly stated the facts of the case are that on 27.02.2014,

complainant - Om Prakash lodged an FIR that on 21.02.2014 his

mentally retarded brother Shivshankar hit his brother Murlidhar

with an axe on his head at 11.00 a.m. and that Murlidhar expired

on 27.03.2014 during treatment. The police after due

investigation submitted a charge-sheet against the accused

appellant. The appellant denied the charges levelled against him

and sought trial. As many as 14 witnesses were examined on

behalf of the prosecution and as many as 21 documents were

exhibited. Explanation of the accused appellant was recorded

under Section 313 Cr.P.C. and after hearing final arguments, the

trial Court has convicted the accused appellant for offence under

Section 302 IPC and sentenced him as hereinabove mentioned.

4. It is contended by learned Amicus Curiae appearing on

behalf of the appellant that there is no eyewitness to the incident

as such and all the alleged eyewitnesses have turned hostile. The

recovery of the axe is doubtful as it was recovered from the place

where the police had already visited and prepared the site plan. It

is also contended that as per the FSL report, the axe was not

found with stains of human blood and therefore, recovery cannot

be used as an evidence against the accused. It is further

contended that the Court below has convicted the appellant only

on the ground of recovery and the statement of Gopal Mewara

(PW-2), who has stated that he has seen the appellant standing

near the place of occurrence with an axe in his hands. In support

(3 of 7) [CRLA-521/2017]

of his contentions, learned counsel for the appellant has placed

reliance on the judgments in Musheer Khan Alias Badshah Khan &

Anr. Versus State of Madhya Pradesh: (2010) 2 SCC 748 and

Trilok Chand & Ors. Versus State of Rajasthan: D.B. Criminal

Appeal No.785/2003 & one connected matter passed by this

Court on 13.09.2013.

5. Learned Additional Government Advocate has opposed the

appeal. It is argued that the Court below has passed the

impugned judgment and order on the facts and circumstances of

the case. The witnesses, who are related to the appellant, have

turned hostile and merely because they have turned hostile, it

cannot be inferred that the appellant is innocent. The fact is that

the brother of the appellant has lodged the FIR wherein he has

specifically alleged that the appellant had given blow of axe on the

head of the deceased, this was an important piece of evidence.

6. It is also argued that the fact that the appellant was armed

with an axe is established from the statement of Gopal Mewara

(PW-2) and the recovery was also effected from him. It is further

contended that it is not a case of single injury and the appellant

purposely knowing pretty well that the blow of axe will result in

death of the deceased gave multiple blows on his person. Hence,

the impugned judgment of conviction of the accused has rightly

been passed by the Court below.

7. We have considered the contentions and have gone through

the material on record.

8. It is evident that as per the first information report, the

incident took place on 21.02.2014 at 11.00 a.m. As per the FIR,

(4 of 7) [CRLA-521/2017]

the allegation was only of causing one injury on the head of the

deceased by an axe, however, as per the postmortem report

(Ex.P-19), the deceased died due to coma brought about as a

result of multiple head and facial injuries. On perusal of the

postmortem report (Ex.P-19), it is evident that the deceased had

sustained as many as seven injuries, which were on the frontal

region of the head, on the nose and left eye. It is indeed strange

that no FIR was lodged even when a person, who has sustained

several sharp injuries on the vital part of the body was admitted in

SMS Hospital Jaipur and no information was even sent by the

hospital to the police and the FIR was lodged after an inordinate

delay of six days.

9. Though plea of insanity has not been taken as a defence by

the appellant, but from perusal of the statement of Gopal Mewara

(PW-2) and also the FIR (Ex.P-9), it is evident that the

complainant has mentioned that his brother, the present

appellant, is mentally unsound for last 17 years. Gopal Mewara

(PW-2) in his cross-examination had admitted that the accused

suffered from bouts of insanity and he is undergoing treatment at

Kota. On re-examination by the Public Prosecutor, the witness has

stated that if the appellant was suffering from insanity, the same

would be within the knowledge of his family members.

10. Omprakash (PW-4), who is brother of the deceased and also

the complainant, who has lodged the FIR, in his examination-in-

chief has stated that when he reached the place of occurrence,

Murlidhar was lying on the ground and Shivshankar was standing

in the nearby room. He has also stated that Shivshankar was not

(5 of 7) [CRLA-521/2017]

carrying any weapon. This witness has turned hostile and in his

cross-examination, he has stated that he has not seen the

appellant hitting the deceased. Prem Narain (PW-5), who is also

brother of the deceased, is a hearsay witness, who has stated that

villagers told him that his brother, the present appellant, has hit

his other brother Murlidhar. This witness was also declared hostile

and he has stated that he was not present at the place of

occurrence. Ramdev (PW-6) has also turned hostile and he has

stated that when he reached the place of occurrence, Murlidhar

was lying on the ground and Shivshankar was not present. Radhey

Shyam (PW-7) has denied going to the place of occurrence and he

has been declared hostile. Consequently, all the alleged eye-

witnesses have turned hostile and only witness on the basis of

whose evidence, the appellant has been convicted, is Gopal

Mewara (PW-2).

11. Gopal Mewara (PW-2) in his examination-in-chief, has stated

that when he reached the place of occurrence, Murlidhar was lying

on the ground and Shivshankar was standing near him and was

having an axe in his hands. However, in the later part of his

examination-in-chief, he has stated that when he reached,

Shivshankar had already left the place of occurrence. He has also

stated that Shivshankar was not mentally sound. In his cross-

examination, he has stated that when he saw Shivshankar from a

distance of 50 feet and at that time, he was having an axe. He has

admitted that other than axe, if Shivshankar was carrying

something else, he does not know. This witness, in his cross-

examination, has also admitted that Shivshankar has bouts of

(6 of 7) [CRLA-521/2017]

insanity for which he is undergoing treatment at Kota. Admittedly,

from the evidence of Gopal Mewara (PW-2), it is clear that he is

not an eyewitness to the incident and when he reached at the

place of occurrence, the appellant was not present there.

12. Other evidence on the basis of which the trial Court has

come to the conclusion that the appellant has committed the

alleged offence is the recovery of the axe. The site plan of the

place of incident (Ex.P-3) was prepared on 01.03.2014 at 11.15

a.m. and Mark "G" is stated to be a Kutcha House. Exhibit P-16 is

the site plan pertaining to the recovery of the axe. The axe is said

to be recovered from the portion Mark "X", which is the same

portion, which has been marked as "G" in Exhibit P-3. The

recovery has been effected on 02.03.2014 from the same place

which the police had visited a day before. In Exhibit-P-16, it is

mentioned that the axe was lying behind the door. The recovery of

the axe from the place, which was already seen by the police a

day before thus creates doubt. In addition to the above, from the

FSL Report, it is clear that no human blood was detected from the

axe.

13. Since there is no eyewitness to the incident and the recovery

of axe is doubtful, further axe not being found stained with blood

clearly goes to show that the trial Court was not justified in

convicting the appellant for offence under Section 302 IPC. The

trial Court has further erred in convicting the accused on the

ground that the witnesses being relatives have turned hostile.

Delay in lodging the FIR, evidence of the witnesses that the

appellant was undergoing treatment for insanity are additional

(7 of 7) [CRLA-521/2017]

grounds, which were not considered by the Court below. We are

thus of the considered view that the impugned judgment and

order of conviction and sentence cannot be sustained.

14. In the result, appeal filed by the appellant is allowed. The

impugned judgment and order of sentence dated 16.01.2016

passed by trial Court is set aside. The appellant is acquitted of the

charges levelled against him. The appellant being in jail be set at

liberty forthwith, if not required in any other cases or for any other

purpose.

15. Appellant is 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 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 appellant 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.

16. In view of disposal of the appeal, miscellaneous application

for suspension of sentence is also disposed of.

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

                                   SUNIL SOLANKI /19









Powered by TCPDF (www.tcpdf.org)