Rajasthan High Court - Jodhpur

Babaria And Ors vs State on 29 June, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR

S.B. Criminal Appeal No. 327/1992

Babaria And Ors.

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. Om Prakash Choudhary, Amicus Curiae For Respondent(s) : Mr. Abhishek Purohit, P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

29/06/2022

1. The appellants have preferred this Criminal Appeal under

Section 374 (2) Cr.P.C. praying for the following reliefs:-

"It is, therefore, respectfully prayed that this appeal may kindly be allowed and the accused appellants may kindly be acquitted of all the charges levelled against them."

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

year 1986 and the present criminal appeal has been pending

since the year 1992.

3. This appeal has been preferred against the judgment dated

10.08.1992 passed by the Special Judge, SC/ST Prevention of

Atrocities Court, Udaipur in Sessions Case No. 16/1992 whereby

the accused appellants were convicted under Section 304 Part II

read with Section 149 I.P.C., Section 148 I.P.C. and Section 323

read with Section 149 I.P.C. and were each awarded a sentence

(2 of 7) [CRLA-327/1992]

of 6 years R.I., 2 years R.I. and 6 months S.I. respectively, with

the direction that the sentences were to run concurrently.

4. Brief facts of the case as revealed from the record are that

on 15.01.1986, Shri Rupla filed a report at Police Station Parsola

stating therein that on 14.01.1986, at about 2/2:30 p.m. while

Bheema, the deceased victim, his wife Pemli, and their son Devji

were working in their fields, the accused appellants, armed with

lathis, entered their fields and assaulted them, as a result of

which Bheema died, and his wife and son sustained injuries. And

that, the accused appellants removed and took Pemli's jewellery,

and lifted them (deceased Bheema as well as Pemli and Devji)

and placed them on the cot in the verandah. And that, they

subsequently entered their home and stole ornaments, a radio,

a gun, among other things which were kept inside a chest in the

victims' home. And that, on the basis of such a report, an F.I.R.

was registered by the S.H.O. for offences under Sections 147,

148, 302, 454, 394 and 323/149 I.P.C. against the accused

appellants. The police authorities investigated the alleged crime

scene, created a Panchnama report and post-mortem of the

body was conducted. And that, the accused appellants denied

the charges so framed against them, and sought trial, during

the course of which, 15 prosecution witnesses were produced

and examined.

5. Learned counsel for the appellants submits that the

sentence awarded to the appellants (Babaria, Alia and Panchia)

was suspended by this Hon'ble Court, vide order dated

20.11.1992 in S.B. Criminal Misc. Bail Petition No. 362/1992. As

per learned counsel and as mentioned in the present appeal,

(3 of 7) [CRLA-327/1992]

although appellants, namely, Bheria and Tejia have not sought

suspension of sentence, but after serving out the sentence, as

awarded to them by the learned court below, they were

released.

6. Learned counsel for the appellants further submits that

there were 7 culprits in total, one of which was not identifiable,

one of which (accused Ratna) was a juvenile at the relevant

time, and the remaining 5 are the present appellants. And that,

the conviction of the appellants under Section 304 Part II I.P.C.

and Section 148 I.P.C. is bad in the eye of law, as it was not

ascertained beyond all reasonable doubts as to which of the 7

aforementioned persons had inflicted which injury on the

deceased victim, nor has the fatal blow been attributed to either

of them. And that, the same is evident from the testimony of

P.W. 1 - Pemli, the wife of the deceased.

7. Learned counsel for the appellants also submits that the

learned Court below has also disbelieved the version of the

prosecution that the incident occurred with the intention of

stealing ornaments, and that the motive behind the occurrence

of the incidents was not determinable either, as the chest from

which the deceased's wife claimed stealing of jewellery, was

fastened with a lock, and the same was unbroken, as is

corroborated from the statement of the investigating officer.

8. Learned counsel for the appellants further submits that the

evidence of the witnesses against the appellants is also weak

and cannot be relied upon, as their testimonies are rife with

contradictions. And that, the eyewitness, P.W. 9 Khema, and

subsequently other witnesses also turned hostile.

(4 of 7) [CRLA-327/1992]

9. Learned counsel for the appellants also submits that for

the aforementioned reasons, neither are there any credible

witnesses nor any evidence which point towards the culpability

of the accused appellants herein beyond all reasonable doubts,

and therefore at best, a case under Section 325 I.P.C. can be

made out against the appellants, and that the conviction under

section 304 Part II I.P.C. is not sustainable.

10. Learned counsel for the appellants, however, also makes a

limited submission that without making any interference on

merits/conviction, the sentence awarded to the present

appellants may be substituted with the period of sentence

already undergone by them.

11. Learned Public Prosecutor opposes the same and submits

that the learned Trial Court has passed the impugned judgment

after a thorough perusal of the record and after taking into

consideration the overall facts and circumstances of the present

case.

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

record of the case.

13. This Court, at the outset finds that the grounds of conviction

of the appellants as taken by the learned Trial Court, as laid out

before this Court by the learned counsel for the appellants, and as

is evident from the record, call into question the version of the

prosecution.

14. In arriving at this conclusion, this Court derives strength

from the fact that the testimonies of the witnesses suffer from

contradictions and inconsistencies.

(5 of 7) [CRLA-327/1992]

14.1 The learned Trial Court has also observed that the concerned

police authorities have also given varying testimony, all of which

further creates a shadow of doubt on the version of the

prosecution.

15. This Court finds that the learned Trial Court, while recording

observations to the effect that the testimony of the doctor, Dr. G.

C. Shukla, P.W. 11 confirmed that the death of the deceased

victim occurred at the time as averred by prosecution, and was

occurred due to suffering blows to his body. Eye witness P.W. 9

Khema, and other key witnesses P.W. 3 Rupa and P.W. 5 Nathia

turned hostile.

15.1 However, the same does not help in ascertaining as to which

of the appellants herein, if at all, were responsible for inflicting the

fatal blow to the deceased, or whether the deceased victim passed

away as a consequence of falling on the ground and hitting his

head.

15.2 The learned Trial Court has also recorded the finding that the

averment made by the appellants to the effect that the deceased,

Bheema was allegedly involved in illicit relations with one Deva's

wife Jamna and that the said Deva, after finding out about the

same, confronted Bheema and that they exchanged blows, and

that the same could be the reason for some of the injuries found

on the body of the deceased victim, which was put forth by two

witnesses produced by the appellants during trial, who stated that

the said issue was also brought before the concerned Panchayat,

is not believable.

16. Nonetheless, this Court finds that although the learned Trial

Court has delved deep into the facts and circumstances

(6 of 7) [CRLA-327/1992]

surrounding the present case, and dealt with the testimonies of

the witnesses at length, in convicting the present appellants under

Section 304 Part II I.P.C., it has gone beyond the evidence placed

on record before it, as the same has not been proven beyond all

reasonable doubts. And that, in such case the benefit of doubt

must go to the accused. The record only reveals that a fight broke

out between 7 persons, and Bheema, his wife and son, as already

discussed above and as a consequence of which Bheema died.

17. This Court is conscious of the judgments rendered in,

Alister Anthony Pareira Vs. State of Maharashtra (2012) 2

SCC 648 and Haripada Das Vs. State of W.B. (1998) 9 SCC

678 wherein the Hon'ble Apex Court observed as under:-

Alister Anthony Pareira (Supra) "There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances."

Haripada Das (Supra) "...considering the fact that the respondent had already undergone detention for some period and the case is pending for a pretty long time for which he had suffered both financial hardship and mental agony and also considering the fact that he had been released on bail as far back as on 17-1-1986, we feel that the ends of justice will be met in the facts of the case if the sentence is reduced to the period already undergone..."

18. This Court, after taking into taking into due consideration the

peculiar facts and circumstances of the present case, that the

(7 of 7) [CRLA-327/1992]

incident is of the year 1986, and in light of the limited prayer

made on behalf of the appellants, keeping in mind the

aforementioned precedent laws, partly allows the present appeal .

Accordingly, while maintaining the appellants' conviction under

Section 304 Part II I.P.C., Section 148 I.P.C. and Section 323 read

with Section 149 I.P.C., as above, this Court deems it appropriate

to reduce the sentence awarded to them to the period already

undergone by them. The appellants (Babaria, Alia and Panchia)

are on bail, in pursuance of the order passed by this Hon'ble Court