Jagga vs State Of Rajasthan
2022 Latest Caselaw 7393 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                   D.B. Criminal Appeal No. 77/2019

1.     Jagga S/o Shri Daula Garasiya, Aged About 42 Years, R/o
       Village Bekariya , Distt. Udaipur (Raj.) (Presently Lodged
       In Central Jail , Udaipur)
2.     Daula S/o Shri Jeeva Garasiya, Aged About 58 Years, R/o
       Village Bekariya , Distt. Udaipur (Raj.) (Presently Lodged
       In Central Jail , Udaipur)
3.     Kokiya S/o Shri Kheta Garasiya, Aged About 32 Years, R/o
       Village Bekariya , Distt. Udaipur (Raj.) (Presently Lodged
       In Central Jail , Udaipur)
                                                                    ----Appellants
                                    Versus
State Of Rajasthan, Through PP
                                                                   ----Respondent


For Appellant(s)          :     Mr. Shambhoo Singh Singh
                                Mr. Sobhagya Singh
For Respondent(s)         :     Mr. B.R. Bishnoi, AGC



          HON'BLE MR. JUSTICE SANDEEP MEHTA
      HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

                                 Judgment

Date of pronouncement : 18/05/2022

Judgment reserved on : 03/03/2022

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

The appellants herein, namely, Jagga S/o Daula

Garasiya, Daula S/o Jeeva Garasiya and Kokiya S/o Kheta

Garasiya, have been convicted and sentenced by the Additional

Sessions Judge No.5, Udaipur vide judgment dated 25.02.2019

passed in Sessions Case No.130/2016 in the following terms :-

(2 of 14) [CRLAD-77/2019]

Offence for which Sentence awarded, fine imposed and convicted default sentence Section 302/34 IPC Life imprisonment and a fine of Rs.20,000/- and in default of payment of fine, further to undergo 3 months' simple imprisonment Section 307/34 IPC 10 years' simple imprisonment and a fine of Rs.10,000/- and in default of payment of fine, further to undergo 2 months' simple imprisonment Section 324/34 IPC 3 years' simple imprisonment

Being aggrieved of their conviction and the sentences

awarded to them by the trial court, the appellants have filed the

instant appeal under Section 374 CrPC.

The facts in nutshell are as below :-

Roopa Ram Garasiya (P.W.1) submitted a written report

(Ex.P/1) to the SHO, Police Station Bekariya, District Udaipur on

04.06.2011 alleging inter alia that on that very day at about 06.30

a.m., he and his brothers Megha and Lala were all present at their

respective residences. Daula S/o Jeeva, Jagga S/o Daula, Chena

S/o Daula, Hansa S/o Daula, Madhu S/o Daula, Meema S/o

Khema, Mana S/o Raja, Natha S/o Dhula, Kheta S/o Rata, Husa

S/o Kheta, Kokiya s/o Kheta, Araja S/o Kheta, in all 12 persons,

residents of Bekariya, armed with axes, swords, bows and arrows

and lathis, launched a concerted assault on the house of Megha.

They threw stones towards Megha's house, on which, Megha and

Lala fled away fearing for their lives. They reached the water

channel near the field of Lala Garasiya, where Harama S/o Mama,

Saka S/o Kana, Roopa S/o Gula, Hona S/o Bhera, Kala S/o Bhera,

Gula S/o Jagga, Dhana S/o Eesa, Hariya S/o Eesa, Harama S/o

Gula Garasiya, residents of Goras, were standing armed with

(3 of 14) [CRLAD-77/2019]

lathis, axes, bows and arrows and swords. The assailants hailed

from the same family and were raising exhortations saying that

both should be killed. Saying so, Daula gave an axe blow on the

head of Megha. Jagga shot an arrow. Chena gave blow from the

reverse side of the axe. Hansa inflicted an axe injury. Madhu and

Meema inflicted lathi blows. Mana gave an axe blow. Natha,

Kheta and Husa shot arrows. As a result thereof, Megha collpased

and expired at the spot. Lala shouted, on which Kokiya gave a

sword blow on his neck. Harja gave him lathi blow and Jagga shot

an arrow, which got embedded in his neck. Roopa and Hona

inflicted axe blows. Gula, Dhana, Harma and Hariya all gave lathi

and axe blows. The informant, alongwith Homi W/o Megha, Haldi

D/o Roopa, Samiya D/o Megha, Bhatki D/o Megha rushed to the

spot and intervened to save Lala, on which, Homi was given a lathi

blow on her hip by Kheta. A land dispute was going on and that is

why the assailants had launched the concerned assault, in which,

Megha was killed and an attempt was made to kill Lala.

On the basis of this written report, an FIR No.43/2011

(Ex.P/21) came to be registered at the Police Station Bekariya for

the offences punishable under Sections 147, 148, 149, 307, 302

and 323 IPC. Investigation was assigned to Police Inspector

Roshan Lal (P.W.20), the then SHO, Police Station Bekariya. He

proceeded to the crime scene and prepared the following

documents :-

(1) Site inspection plan (Ex.P/2)

(2) Panchnama Lash Megha (Ex.P/3)

(3) Supurdginama Lash Megha (Ex.P/4)

(4 of 14) [CRLAD-77/2019]

(4) Requisition for conducting postmortem (Ex.P/18)

(5) Seizure memo of four arrow heads from the place of incident (Ex.P/7)

(6) Seizure memo of blood stained clothes of Megha (Ex.P/8)

(7) Seizure memo of blood stained and control soil from the place of incident (Ex.P/9)

The dead body of Megha was subjected to postmortem

at the hands of a Medical Board and postmortem report (Ex.P/18)

was received. The injury reports of Lala (Ex.P/17) and Homi

(Ex.P/16) were also procured. The Investigating Officer Roshan

Lal arrested accused Mana, Jagga, Hameera, Daula, Hariya,

Gularam and Rooparam and effected the recoveries as usual.

After investigation, a charge-sheet came to be filed against

accused Mana, Daula, Jagga, Hariya and Hameera in the court of

the concerned Magistrate for the offences punishable under

Sections 302, 148, 149, 307, 324, 326 IPC and Section 4/25 of

the Arms Act. The investigation qua the remaining accused was

kept pending under Section 178 (8) of the CrPC. The

Investigating Officer also submitted supplementary charge-sheet

against Gula and Roopa.

Further investigation of the case was conducted by Mr.

Sunil Sharma (P.W.24), who was posted as SHO, Police Station

Bekariya as on 29.04.2016, and arrested Bheema @ Meema and

filed supplementary charge-sheet against him.

Sawai Singh (P.W.25), who was posted as SHO, Police

Station Bekariya as on 22.03.2013, also conducted a part of

investigation and arrested accused Arjaram and Kokiya and filed a

subsequent charge-sheet against these two accused persons.

(5 of 14) [CRLAD-77/2019]

The details of the arrests of these 10 accused, the

informations provided by them under Section 27 of the Evidence

Act and the recoveries effected from them/verification of place of

incident done by them are described hereinbelow in a chat form :

S.  Name     of Arrest             Memo        of Recovered articles
No. the         memo               information    and seizure memo
    arrested                       under Section
    accused                        27   of   the
                                   Evidence Act
1.    Mana          Ex.P/27        Ex.P/31                 Axe (Ex.P/10)
                                   Ex.P/32
                                                           Verification of place
                                                           of     incident    by
                                                           accused (Ex.P/12)
2.    Jagga         Ex.P/28        Ex.P/29                 Iron sword (Ex.P/11)
                                   Ex.P/30
                                                           Verification of place
                                                           from where sword
                                                           was got recovered by
                                                           accused (Ex.P/13)
3.    Hameera       Ex.P/33        Ex.P/34                 Verification of place
                                                           of incident (Ex.P/14)
4.    Daula         Ex.P/35        Ex.P/36                 Lathi (Ex.P/5)
5.    Hariya        Ex.P/37        Ex.P/38                 Verification of place
                                                           of     incident    by
                                                           accused (Ex.P/15)
6.    Gularam       Ex.P/39        Ex.P/41                 Bamboo           Lath
                                   Ex.P/42                 (Ex.P/43)

                                                           Verification of place
                                                           of     incident    by
                                                           accused (Ex.P/45)
7.    Roopa Ram     Ex.P/40        Ex.P/46                 Arrow     and    bow
                                   Ex.P/47                 (Ex.P/48)
8.    Bheema      @ Ex.P/53        Ex.P/54                 Verification of place
      Meema                                                of     incident    by
                                                           accused (Ex.P/55)
9.    Arjaram       Ex.P/56        -                       -
10.   Kokiya        Ex.P/57        -                       -

The cases of all the charge-sheeted accused were

committed and then transferred to the Court of the Additional

(6 of 14) [CRLAD-77/2019]

Sessions Judge No.3, Udaipur. All these charge-sheets were

clubbed together for trial after committal.

Charges were framed against the accused persons in

the following terms :-

Name of the accused               Offence for which charges framed
Jagga                             Sections 148, 324/149, 326/149,
                                  307/149, 302/149 IPC and Section
                                  4/25 of the Arms Act
Roopa, Hariya @ Hara, Sections 148, 324/149,                           326/149,
Daula,    Hameera  @ 307/149 and 302/149 IPC
Sameera, Mana, Gula,
Ajraram and Kokiya
Bheema                            Sections 148, 323/149, 324/149,
                                  326/149, 307/149 and 302/149 IPC

The accused denied the charges and claimed trial. The

prosecution examined 25 witnesses and exhibited 57 documents

to prove its case. The accused were questioned under Section

313 CrPC and upon being confronted with the allegations

appearing against them in the prosecution case, they denied the

same and claimed to be innocent. 9 documents were exhibited,

but no oral evidence was led in support of defence.

After hearing the arguments advanced by the learned

Public Prosecutor and the learned defence counsel and

appreciating the evidence available on record, the learned trial

court proceeded to convict the three accused appellants Jagga,

Daula and Kokiya as above, whereas the remaining seven

accused, namely, Roopa, Hariya, Hameera, Mana, Gula, Harja and

Bheema, were acquitted of the charges by extending benefit of

doubt. The judgment dated 25.02.2019 convicting and sentencing

the three accused appellants is assailed in this appeal.

Mr. Shambhoo Singh, learned counsel representing the

appellants, vehemently and fervently urged that the entire

(7 of 14) [CRLAD-77/2019]

prosecution case is false and fabricated. As per the FIR (Ex.P/21),

the first informant Roopa did not see the incident actually

happening because the quarrel took place near a water channel in

the filed of Leela Garasiya, which is at a significant distance from

the house of Roopa. Out of 10 charge-sheeted accused persons, 7

accused who were charged and tried on the same evidence have

been acquitted by the trial court and as such, the distinction

drawn by the trial court while convicting the appellants herein on

the basis of the same evidence is absolutely unjustified. The

evidence of material prosecution witnesses Roopa Garasiya

(P.W.1), Homi (P.W.9), Lala (P.W.10), Bhatki (P.W.11) and Lasma

(P.W.12) is highly vacillating and their testimony is thoroughly

contradicted by the medical evidence. The Investigating Officer

did not prove the informations recorded at the instance of the

accused under Section 27 of the Evidence Act in a legal manner

and thus, the recoveries cannot be read against the accused. The

prosecution gave no evidence whatsoever regarding safekeeping

of the recovered weapons etc. and thus, also the recoveries have

been rendered redundant. Learned counsel further submitted that

as many as 21 persons were named by the first informant in the

FIR. The incident took place in two parts. As per the evidence of

the prosecution witnesses, in the first part, 12 accused persons

allegedly launched an assault on the house of Megha. However,

the Investigating Officer did not find 6 of these accused involved

in the offence and a negative final report was submitted qua

them. In the second part of the incident, which took place near

the water channel in the field of Leela Garasiya, 9 assailants

allegedly accosted the victims, but of these 9 persons, charge-

sheet was filed only against 3. He, thus, urged that there is

(8 of 14) [CRLAD-77/2019]

wholesome over-implication of the accused by the prosecution

witnesses and it is not possible to distinguish the case of the

accused appellants from that of those accused, who were not

found involved in the offences and hence, on parity, the accused

appellants are entitled to be acquitted by giving them the benefit

of doubt. On these grounds, Mr. Shambhoo Singh vehemently

implored the court to accept the appeal, set aside the impugned

judgment and acquit the accused appellants.

Per contra, learned Public Prosecutor vehemently and

fervently opposed the submissions advanced by the appellants'

counsel and urged that the prosecution witnesses hail from a

Tribal background and are illiterate people and thus, minor and

trivial contradictions are bound to appear in the evidence of such

witnesses. The trial court has adopted a thorough and balanced

approach while analysing the evidence while recording guilt of the

accused appellants to the exclusion of the left out and acquitted

accused. The statements of the material prosecution witnesses

and eye-witnesses have been properly sifted and an

unimpeachable conclusion has been drawn therefrom regarding

active participation of the accused appellants in the incident. He

further urged that from the evidence of the Medical Jurist Dr. Dau

Lal (P.W.14), who proved the injury reports of Lala (Ex.P/17) and

Homi (Ex.P/16) and the postmortem report of Megha (Ex.P/18),

the fact regarding large number of injuries, which were sufficient

in the ordinary course of nature to cause death of Megha and life

threatening injuries having been caused to the injured Lala, is

well-established. Learned Public Prosecutor further submitted that

evidence of Lala (P.W.10), who is an injured witness, is in itself

sufficient to affirm the conviction of the appellants because his

(9 of 14) [CRLAD-77/2019]

testimony, establishes actual participation of the accused

appellants in the incident and the witness could not be shaken

from his stance despite prolonged cross-examination. On these

grounds, learned Public Prosecutor implored the court to dismiss

the appeal and affirm the conviction of the accused appellants as

recorded by the trial court.

We have given our thoughtful consideration to the

arguments advanced by the learned counsel for the parties and

have carefully gone through the record.

The prosecution case is based primarily on direct

evidence. Though the Investigating Officer claims to have

effected recoveries from the accused persons, but prima facie

after going through the evidence of the three Investigating

Officers, Roshan Lal (P.W.20), Sunil Sharma (P.W.24) and Sawai

Singh (P.W.25), we are of the opinion that the prosecution has

failed to lead proper evidence to satisfy the court regarding the

sanctity of the recovery proceedings and thus, the recoveries have

to be rejected.

Now we proceed to discuss the evidence of the material

prosecution witnesses. The first informant Roopa (P.W.1) virtually

repeated the allegations set out in the written report (Ex.P/1) and

the FIR (Ex.P/21) and alleged that the incident took place in two

parts. In the first part of the incident, which took place at the

house of Megha, 12 assailants were named. In the second part,

which took place near the water channel, 9 persons were named

as offenders. However, the Investigating Officer filed the charge-

sheet only against 10 persons, of which also, 7 have been

acquitted by the trial court. In cross-examination, the witness

Roopa (P.W.1) was confronted with certain omissions and

(10 of 14) [CRLAD-77/2019]

contradictions, vis-a-vis the First Information Report and his police

statement Ex.D/1. However, the contradictions so pointed out are

trivial and inconsequential. Otherwise also, Roopa mainly saw the

first part of the incident, wherein the accused persons threw

brickbats towards the house of Megha. In cross-examination, the

witness stated that after the stones were hurled towards their

house, Megha and Lala ran away and the accused pursued them.

The second part of the incident took place in the field of Leela

Garasiya. After perusal of whole of the statement of Roopa, we

are of the firm view that no significant contradictions/infirmities

were pointed out by the defence counsel in his statement, which

can persuade us to doubt his testimony.

Homi (P.W.9), being the wife of Megha, named 17

assailants, who gathered outside her house and threw stones.

She stated that Lala and Megha ran away from the house. Daula

gave an axe blow on the head of Megha. Jagga was armed with a

bow and arrow and also a sword. Hasiya and Madho were armed

with lathis. Kokiya was armed with a sword. Reshma and

Hameera were having guns. Harma was armed with a lathi. The

others were having stones in their hands. She attributed specific

role in the incident to some of the accused persons. She was

confronted with her police statement (Ex.D/3), wherein certain

contradictions were pointed out, but the same do not appear to be

very significant.

The most important witness of the prosecution was

none other than Lala (P.W.10), who himself was seriously injured

in the incident. In his statement, Lala alleged that 5 accused,

namely Daula, Jagga, Madhu, Chena and Jagga S/o Daula came to

their house and started throwing stones etc. The time was 06.30

(11 of 14) [CRLAD-77/2019]

in the morning. Then the assailants surrounded him and Megha

near the water channel. Daula gave an axe blow on the head of

Megha. Jagga shot an arrow on the witness. Gula inflicted an axe

blow to Megha. Hansa and Chena also inflicted axe blows upon

him. Madhu gave a lathi blow. Roopa and Mana inflicted axe

blows to Megha. The witness alleged that Kokiya inflicted a sword

blow on his neck and Jagga shot an arrow on his chest. Meema

and Natha inflicted lathi blows. Hamira landed a lath blow upon

Megha. He stated that his sister Bhatki, mother Homi and uncle

Roopa also saw the incident. His mother Homi tried to intervene,

on which, she too was beaten by Gula, Jagga, Daula, Hona and

Lala. He fell down unconscious after the attack and was

hospitalized, where he came to know that his father had passed

away. He pertinently alleged that the assailants had launched the

assault with the intention of taking possession of their land. In

cross-examination, the witness stated that he and his father

Megha were sleeping when stones were thrown towards their

house. They abruptly woke up and ran towards the water channel

in an attempt to escape. 20 to 25 assailants accosted them. He

and his father were both beaten at the same time. He became

unconscious after receiving injuries on his head and the arrow

injury. During cross-examination, the witness was confronted with

his 161 CrPC statement (Ex.D/4), wherein there is some

discrepancy regarding the names of the assailants and the specific

role attributed to them. The witness was recalled on 26.10.2016

and during his cross-examination on that day, he refuted the

defence suggestion that he had fallen down on the ground and

became unconscious and did not see the incident.

(12 of 14) [CRLAD-77/2019]

Bhatki (P.W.11) also gave evidence implicating some of

the assailants in the incident. Nothing significant was elicited in

her cross-examination as well.

Dr. Daulal (P.W.14), the Medical Jurist, examined Homi

and prepared the injury report Ex.P/16 taking note of two bruises

on her hip and on her back. Thus, presence of injuries on the

person of Homi affirm her presence at the place of incident. The

Medical Jurist also examined Lala and prepared the injury report

Ex.P/17 taking note of four injuries, namely, a cut wound on the

left side of neck, a punctured wound on the sternal notch with a

foreign body embedded therein, a lacerated wound present on the

right side of head and a cut wound on the right side of chest. The

witness also conducted postmortem upon the body of Megha and

took note of 3 injuries, being a lacerated wound on the front side

of head and two bruises, one on the chest and another on the jaw.

Frontal bone and underlying part of the brain were crushed.

Spinal cord and brain membrane were damaged. The neck bone

was also fractured. The left jaw was broken. Vague suggestions

were given to the witness that the injuries caused to the injured

persons could have been received upon a fall. However, these

suggestions are absolutely conjectural and cannot be considered

sufficient to impeach the testimony of the Medical Jurist.

Dr. Vinay Naithani (P.W.19) carried out surgery upon

Lala and took out the arrow head. The doctor proved the

operative notes (Ex.P/20).

For the sake of repetition, it may be mentioned here

that the Investigating Officer gave absolutely perfunctory evidence

regarding the informations provided by the accused and the

(13 of 14) [CRLAD-77/2019]

recoveries effected in pursuance thereof and hence, the recoveries

cannot be relied upon.

The trial court appreciated the evidence of the

prosecution witnesses and after sifting chaff from the grain, found

the accused appellants Jagga, Daula and Kokiya guilty for the

above offences, whereas the accused Roopa, Hariya, Hameera,

Mana, Gula, Harja and Bheema were acquitted of the charges. On

a threadbare perusal and evaluation of the testimony of the

material witnesses referred to supra, it is apparent that the trial

court carried out a thorough exercise of identifying the particular

accused persons, who were responsible for causing injuries to the

injured persons and the deceased. As many as 19 assailants were

named in the FIR and in the testimony of the first informant Roopa

Ram. Looking to the lesser number of injuries, the trial court was

absolutely justified in undertaking this process of filtering the

names of the accused persons, who were attributed specific

allegations of inflicting injuries to the victims. The mere fact that

some of the accused persons named in the FIR have not been

charge-sheeted and few of the charge-sheeted accused have been

acquitted by the trial court would not give any advantage to the

accused appellants because it is well-settled in the Criminal

Jurisprudence prevailing in the Indian justice delivery system that

the maxim falsus in uno falsus in omnibus is not a sound principle.

As a consequence of the above discussion, we are of

the firm view that the conviction of the appellants as recorded by

the trial court is based on thorough and apropos appreciation of

evidence available on record. The impugned judgment dated

25.02.2019 passed by the Additional Sessions Judge No.5,

Udaipur vide in Sessions Case No.130/2016 does not suffer from

(14 of 14) [CRLAD-77/2019]

any infirmity whatsoever warranting interference by this court.

Thus, the appeal fails and is hereby dismissed as being devoid of

merit.

(VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J

Pramod/-

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