Rajasthan High Court - Jodhpur
State vs Jassa Bharti And Ors on 14 November, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 460/1988
1. Bheekha Bharti S/o Dhanna Bharti Gusain (Since deceased
- Appeal abated vide order dated 23.01.2020)
2. Jassa Bharti S/o Dhanna Bharti Gusain
3. Bhanwar Bharti S/o Dhanna Bharti Gusain
4. Somar Bharti S/o Dhanna Bharti Gusain
All r/o Bhadana, P.S. Mundawa, District Nagaur (Raj.)
----Appellant
Versus
State of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal No. 134/1989
State of Rajasthan
----Appellant
Versus
1. Jassa Bharti son of Dhanna Bharti
2. Bhanwar Bharti son of Chhotu Bharti
3. Somar Bharti son of Dhanna Bharti
all by caste Gusai, R/o Bhadana, P.S. Mundwa, Nagaur
----Respondent
For Appellant(s) : Mr. Manish Shishodia, Senior
Advocate, assisted by Mr. Ajay Singh
Rathore
For Respondent(s) : Mr. B.R. Bishnoi, AGC
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
Judgment
Date of pronouncement : 14/11/2022
Judgment reserved on : 11/07/2022
BY THE COURT : PER HON'BLE MEHTA, J.
(2 of 19) [CRLA-460/1988]
These two appeals are directed against the judgment
dated 26.11.1988 passed by the learned Additional Sessions
Judge, Nagaur in Sessions Case No.57/1987, whereby the
appellants herein were convicted and sentenced as below :-
S. Name of the Offence for Sentence, fine and
No. appellant which default sentence
convicted awarded
1. Bheekha Bharti Section 302 IPC Life imprisonment
(Since deceased) alongwith a fine of
(Appeal abated vide Rs.100/- and in
order dated default of payment of
23.01.2020) fine, additional
simple imprisonment
of one month
Section 325 IPC Seven years'
rigorous
imprisonment
Section 342 IPC One month's rigorous
imprisonment
2. Somar Bharti Section 323/34 Three months'
3. Jassa Bharti IPC simple imprisonment
alongwith a fine of
4. Bhanwar Bharti Rs.100 and in default
of payment of fine,
additional simple
imprisonment of
seven days'
While the appellants in Appeal No.460/1988 have
challenged the judgment whereby they have been convicted and
sentenced by the trial court, the State of Rajasthan has filed the
Appeal No.134/1989 for assailing the acquittal of the accused
Jassa Bharti, Bhanwar Bharti and Somar Bharti from the offences
punishable under Sections 302/34, 325/34 and 342 IPC.
It may be stated here that the accused Bheekha Bharti,
who was convicted for the offence punishable under Section 302
IPC simplicitor amongst others and was sentenced to life
(3 of 19) [CRLA-460/1988]
imprisonment on the said count, expired during pendency of the
appeal and hence, Appeal No.460/1988 was dismissed as having
abated to his extent.
Briefly stated, facts of the prosecution case are as
below :-
The houses of Ramdev, son of the deceased Kirtaram)
and the accused Bheekha are located nearby in the Village
Bhadana, Police Station Mundwa, District Nagaur. A complaint
under Section 107 CrPC (Ex.P/30) came to be filed by the accused
Somar Bharti against Ramdev and Sheraram in the Court of the
Executive Magistrate concerned alleging that these persons tried
to beat him up on 08.06.1987. Ramdev, in turn also filed a
complaint under Section 107 CrPC against Bheekha Bharti, Somar
Bharti, Jassa Bharti and Bhanwaru Bharti alleging that these
persons indulged in violence with him on 09.06.1987. Proceeding
further, on 10.06.1987, Ramdev lodged a complaint in the Court of
the Executive Magistrate concerned under Section 133 CrPC
alleging that Bheekha, Jassa and Somar Bharti had obstructed the
approach way to his house. The complaint was registered and the
Magistrate issued notices to Bheekha Bharti, Jassa Bharti and
Somar Bharti directing them to remove the obstruction or to
appear in the court on 20.06.1987 and show cause as to why such
a direction may not be issued. Thus, the backdrop of the incident
is that the land disputes and prior enmity prevailed between the
parties.
The prosecution has come out with a case that Kirtaram
left his house on 23.06.1987 in the evening carrying with him,
(4 of 19) [CRLA-460/1988]
jaggery and Rotis for feeding the bulls. No sooner had Kirtaram
moved out of his house, Bheekha, Jassa and Somar Bharti
launched an attack upon him. Kirta's granddaughter Shanti
noticed that her grandfather was being assaulted, on which, she
cried out and called her mother Singari for help. Shanti, Singari
and Singari's nephew Devaram, who was visiting the house of
Ramdev, rushed to save Kirtaram and saw that he was being
assaulted by the above-mentioned accused persons. It is alleged
that Bheekha inflicted a blow from the reverse side of a Kassi on
the head of Kirtaram, due to which, he fell down. Accused
Bhanwaru also came there with a Kassi. All four offenders
assaulted Kirta. Shanti, Singari and Devaram tried to save Kirta
and in this process, Shanti and Singari also received injuries. The
assailants then went away presuming that Kirtaram had died. The
three family members picked up Kirtaram and took him home.
Later he was taken to Mundwa hospital. On the very same night
(on 23.06.1987), at about 08.00 p.m., Singari (P.W.1) lodged a
written report (Ex.P/1) incorporating the above allegations at the
Police Station Mundwa, on the basis whereof, FIR No.69/1987
came to be registered for the offences punishable under Sections
307 and 323/34 IPC and investigation was commenced. The SHO
Richhpal Singh (P.W.13) claims to have recorded the statement of
Kirtaram (Ex.P/10) in Government hospital, Mundwa in presence
of Medical Officer Dr. Pratap Singh (P.W. 11) in the night at about
09.40 p.m., wherein the victim alleged that he was proceeding
from his Bada and was waylaid by Bheekha, Jassa and Somar, who
were armed with lathis and Kassis. Bheekha gave him a Kassi
blow from the reverse side. Bhanwaru also came around with a
(5 of 19) [CRLA-460/1988]
Kassi and he also beat him up. He lost senses and did not know
what happened thereafter. Kirtaram's injuries were examined by
the Medical Officer Dr. Pratap Singh (P.W.11) on 23.06.1987 at
09.30 p.m. and the Medico-Legal Report (Ex.P/9) was issued
taking note of the following injuries and the precarious condition
of the victim, he was immediately referred to the Government
Hospital, Nagaur for x-ray and treatment.
"Haematoma with Fluctuating painful swelling 4"-4" on
right temporo-parietal region. Profuse bleeding from
right ear coming out. General condition - pulse 120
P.M., B.P. 100/60, Temp. 97 F. Vomiting started."
Shanti and Singari were also examined for their
injuries.
Kirtaram was taken to Nagaur Hospital, but he expired,
on which the Medical Jurist, Nagaur Dr. Arjun Ram (P.W.8) carried
out autopsy upon the dead body and issued the postmortem
report (Ex.P/7) taking note of the following injuries :-
1. Contusion with swelling 5 cm x 3 cm right temporal region.
2. Contusion with swelling 4 cm x 2 ½ right parietal region.
3. Contusion with swelling 7 cm x 3 cm starting from right
parietal region to occipital region.
4. Contusion with swelling 6 cm x 4 cm starting from frontal
region to temporal region.
The medical jurist opined that the cause of death of
Kirtaram was caranio cerebral damage due to injuries over
occipital parietal and temporal region of skull.
The routine process of investigation was undertaken.
All the four accused persons named in the report were arrested on
(6 of 19) [CRLA-460/1988]
25.06.1987 and acting in furtherance of the informations provided
by them to the Investigating Officer under Section 27 of the
Evidence Act, weapons used in the crime were recovered.
Charge-sheet came to be filed against the accused persons in the
Court of the Magistrate concerned for the offences punishable
under Sections 302, 323, 325, 342/34 IPC. As the offence under
Section 302 IPC was Sessions triable, the case was committed to
the Court of Additional Sessions Judge, Nagaur, where charges
were framed against the accused persons in the following terms :-
S.No. Name of the Offences for which charges were
accused framed
1. Bheekha Bharti 302 IPC in the alternative 302/34,
325/34 and 342 IPC
2. Jassa Bharti
3. Bhanwar Bharti 302/34 IPC, 325/34 IPC and 342 IPC
4. Somar Bharti
The accused pleaded not guilty and claimed trial. The
prosecution examined 13 witnesses to prove its case. The
accused, upon being questioned under Section 313 CrPC and when
confronted with the allegations appearing against them in the
prosecution evidence denied the same and claimed to be innocent.
Three witnesses were examined in defence.
After hearing the arguments advanced by the
prosecution and the defence counsel and appreciating the
evidence available on record, the learned trial court rendered the
judgment dated 26.11.1988 in the above terms.
As stated above, the accused have filed the Appeal
No.460/1988 for assailing their conviction and sentences awarded
for the respective charges, whereas the State has approached this
court through the Appeal No.134/1989 for questioning acquittal of
(7 of 19) [CRLA-460/1988]
the accused Jassa, Bhanwar and Somar from the charge under
Section 302 read with Section 34 IPC.
Mr. Manish Shisodia, learned Senior Advocate, assisted
by Mr. Ajay Singh Rathore, representing the accused persons,
vehemently and fervently urged that the entire prosecution case is
false and fabricated. There is a grave contradiction in the medical
evidence and the ocular testimony. Since the parties were inimical
to each other, the prosecution witnesses have indulged in making
wholesome over-implication of assailants in this case. There is
grave contradiction regarding nature of injuries suffered by the
deceased Kirtaram because the Medical Jurist Dr. Pratap Singh
(P.W.11), who prepared the injury report (Ex.P/9) at the earliest
point of time categorically stated that he noticed only one injury
on the head of the deceased. As against the unimpeachable
testimony of Dr. Pratap Singh, Medical Jurist, Government
Hospital, Mundwa, Dr. Arjunram (P.W.8), posted at Government
Hospital, Nagaur gave an exaggerated version regarding the
injuries stating that he noted four injuries all on the head of the
deceased. Mr. Shisodia urged that as per the prosecution
witnesses, all the four accused persons were armed with Kassis,
but despite that, not a single injury by sharp weapon was noticed
by either of the doctors on the body of Kirtaram. He urged that
the observations made in the postmortem report (Ex.P/7) that as
many as four injuries were noticed on the skull region of the
deceased is prima facie unbelievable and hence this version was
rightly discarded by the trial court. He further urged that from an
over all appreciation of the evidence available on record, without
any doubt, two views are possible and hence, this court should be
loathe to interfere with acquittal of the accused persons from the
(8 of 19) [CRLA-460/1988]
charge under Section 302 read with Section 34 IPC and that too
after more than 35 years of the incident. He submitted that the
main accused Bheekha Bharti, who was convicted for the offence
under Section 302 IPC simplicitor has passed away and thus,
there would be no justification whatsoever to reverse the acquittal
of the accused Jassa, Bhanwar and Somar as recorded by the trial
court in the above terms. Mr. Shisodia further urged that dying
declaration (Ex.P/10) is a concocted document and the trial court
was absolutely unjustified in placing reliance thereupon. Mr.
Shisodia further submitted that looking to the fact that only a
solitary injury was caused to the deceased Kirtaram, it is
impossible to believe that the so-called eye-witnesses Shanti,
Singari and Devaram could have actually seen Shri Kirtaram being
given the said blow. They reached the spot after the deceased
had been beaten and hence, there was no possibility that these
witnesses could have actually seen the blows being landed by the
accused on the deceased. He implored the court to accept the
appeal filed by the accused and to dismiss the State appeal
against acquittal.
Per contra, learned Public Prosecutor, vehemently and
fervently opposed the submissions advanced by Mr. Shisodia. He
urged that the incident took place in the late hours of 23.07.1987.
There was a prior enmity between the parties, which fact is
manifested from the complaints under Section 107 CrPC, which
had been filed by both the sides just a few days before the
incident. The witness Shanti heard the fervent cries of her
grandfather, who was being assaulted by the accused persons, on
which, she immediately called her mother for help. The family
members rushed to the place of incident and tried to save Shri
(9 of 19) [CRLA-460/1988]
Kirtaram, whereupon, Shanti as well as her mother Smt. Singari
were both brutally assaulted by the accused persons and multiple
injuries were caused to them as well. As both Shanti as well as
Singari also received injuries in the self same incident, their
presence at the spot cannot be doubted. Names of the accused
were mentioned in the dying declaration (Ex.P/10) made by Shri
Kirtaram as well as in the prompt written report (Ex.P/1) lodged
by Smt. Singari. The eye-witnesses Shanti, Singari and Devaram
have given convincing evidence regarding active participation of
the accused in the incident and thus, as per the learned Public
Prosecutor, the trial court was absolutely unjustified in acquitting
the accused Jassa, Bhanwar and Somar from the charge under
Section 302 read with Section 34 IPC. He urged that the findings
recorded in the impugned judgment regarding the so called
contradiction in the evidence of the two medical jurists is without
merit Dr. Pratap Singh (P.W.11) and Dr. Arjunram (P.W.8) are
conjectural and perverse. Learned Public Prosecutor urged that
Dr. Pratap Singh examined Kirtaram at the PHC, Mundwa and
noticed that the condition of the injured was precarious at that
time. In such a situation, it could not be expected from the doctor
that he would take meticulous care to notice each and every injury
caused on the person of the victim and hence, it is quite possible
that during cursory medical examination, the medical jurist might
have overlooked the other injuries, which were noticed by Dr.
Arjunram, when he conducted postmortem upon the dead body of
Kirtaram. Thus, the learned Public Prosecutor urged that the
defence argument regarding there being contradictions in the
evidence of the two medical jurists and the finding recorded by
the trial court on this aspect is perverse and untenable. He
(10 of 19) [CRLA-460/1988]
submitted that Dr. Arjunram (P.W.8) had no animosity whatsoever
with the accused persons and thus, there is no reason as to why
he would make a false narration regarding the injuries noticed on
the body of the deceased while he conducted autopsy and issued
the postmortem report. Learned Public Prosecutor also urged that
the evidence of the three prosecution eye-witnesses Shanti,
Singari and Devaram is unimpeachable and so is the dying
declaration (Ex.P/10). Hence, he implored the court to accept the
State appeal, set aside the acquittal of the accused Jassa Bharti,
Somar Bharti and Bhanwar Bharti as recorded by the trial court
from the offence punishable under Section 302/34 IPC and convict
and awarded them life imprisonment.
We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the material
available on record. Since the main accused Bheekha, who was
convicted by the trial court for the offence punishable under
Section 302 IPC simplicitor has expired, the question of primary
importance to be examined by this court is in the appeal preferred
by the State Government for assailing the acquittal of Jassa
Bharti, Bhanwar Bharti and Somar Bharti from the charge for
offence under Section 302/34 IPC. Law is well-settled by a catena
of Supreme Court judgments that where two views are possible on
the basis of evidence available on record, the appellate court
should be slow in interfering with the finding of acquittal recorded
by the trial court after appreciation of evidence available on
record. Reference in this regard may be had to the Supreme
Court judgments in the cases of :
(1) Ramakant Mishra & Ors. Vs. State of U.P. & Ors.
[(2015) 8 SCC 299]
(11 of 19) [CRLA-460/1988]
(2) Sanjeev & Anr. Vs. State of Himachal Pradesh [(2022)
6 SCC 294]
Keeping the above principles in mind, we now proceed
to examine consider whether appreciation of evidence led by the
prosecution permits two views or that the only appropriate
conclusion would be to reverse acquittal of the three respondents
Jassa Bharti, Bhanwar Bharti and Somar Bharti from the charge
under Section 302/34 IPC. We, therefore, proceed to briefly
discuss the evidence available on record. The prosecution
proposed direct evidence of eye-witnesses Singari (P.W.1), Shanti
(P.W.5) and Devaram (P.W.6) and the dying declaration (Ex.P/10)
in its endeavour to prove the charges.
Firstly, we proceed to consider the dying declaration
(Ex.P/10) of Kirtaram, which was recorded by the SHO Richhpal
Singh (P.W.13). At the outset, it may be stated here that Kirtaram
had been inflicted significant injuries on the head and ribs and he
expired within few hours of the incident. There is a note
appended by the doctor at the end of the dying declaration that
the injured was fully conscious and the dying declaration was
recorded in his presence. Learned defence counsel, however,
criticized the dying declaration on the ground that before
proceeding to record the same, the Investigating Officer did not
give any requisition to the doctor for ascertaining the fitness of
the injured to give such statement. In continuance thereof, we
have perused the injury report (Ex.P/9) of Kirtaram prepared by
the Dr. Pratap Singh (P.W.11), in which the doctor noted that
profuse bleeding was taking place from right ear of the deceased.
His pulse was recorded as 120 per minute. The B.P. of the patient
was 100/60 and he was vomiting. The doctor immediately
(12 of 19) [CRLA-460/1988]
referred the injured to higher center at Nagaur for x-ray and
treatment. This injury report was prepared at 09.30 p.m. on
23.06.1987. The dying declaration also bears the time 09.30 p.m.
as the time of commencement, whereas the time of conclusion is
mentioned 09.40 p.m. As per the FIR (Ex.P/1), the incident took
place in the evening at about 6 o'clock. Looking to the grave
nature of head injury suffered by the injured and the time gap of
almost 3 hours in recording of the dying declaration (Ex.P/10), a
serious doubt is created in the mind of the court as to whether
Kirtaram would actually have been in a position to give such
statement. In addition thereto, we may note here that the SHO
Richhpal Singh (P.W.13) admitted in his cross-examination that
when the statement of Kirtaram was recorded, his son Ramdev
was present besides him. When we peruse the statement of
Ramdev (P.W.2), it comes out in the cross-examination that he
admitted that when he first saw his father, he was unconscious.
Thus, we are of the firm view that the dying declaration (Ex.P/10)
is full of suspicious circumstances and the trial court rightly
discarded it as being doubtful.
Now proceed to discuss the remaining prosecution
evidence.
The FIR (Ex.P/1) was lodged by Mrs. Singari (P.W.1),
wife of Ramdev, to the SHO, Police Station Mundwa at 08.00 p.m.
on 23.06.1987, wherein she alleged that the incident took place in
the evening at about 6 o'clock. Her father-in-law Kirtaram went
out to feed the cows/bulls. Soon thereafter, her daughter Shanti
cried out that people of Bharti community were beating her
grandfather (Kirtaram). The informant ran out of the house and
saw that Bheekhla, Jasiya and Somar all armed with Kassis had
(13 of 19) [CRLA-460/1988]
surrounded her father-in-law and were assaulting him. Bheekhla
gave blow of reverse side of Kassi with full force on the head of
her father-in-law, who fell down on the ground. At the same time,
Bhanwaru S/o Chhotu also came there and participated in the
assault. Her father-in-law was inflicted numerous injures even
after he fell down. Her brother Devaram was visiting her house
and he joined the informant and her daughter in an endeavour to
save Kirtaram. She and her daughter too were beaten by the
assailants, who went away from the spot after committing the
crime. They brought Kirtaram back home. Her husband returned
home after some time, whereafter the FIR came to be registered.
The first informant Singari was examined as P.W.1 at
the trial. In her testimony, she stated that the incident took place
in the evening at about 7 o'clock. Her father-in-law had gone out
of the house to feed the bull. She, her daughter Shanti and her
nephew Devaram were present in the house. Shanti went out of
the house and returned shortly raising a hue and cry that her
grandfather was being beaten by people of Swami community.
The witness, alongwith Devaram and Shanti rushed to the spot
and saw Bheekha Bharti, Somar Bharti, Jassa Bharti and Bhanwar
Bharti assaulting Kirtaram. All four were armed with Kassis and
were inflicting blows to Kirtaram using the same from reverse
side. She and Shanti tried to intervene, on which, both of them
received injuries at the hands of the assailants. She could not
say, who of the accused persons landed the blow on her body.
After the assault, the assailants went back to their respective
homes. Her father-in-law was bleeding from mouth and ears.
The other relatives came to the spot. Her husband returned from
the fields and brought a vehicle, wherein Kirtaram was boarded
(14 of 19) [CRLA-460/1988]
and was first taken to the police station and then to the hospital.
She alleged that Bheekha Bharti wanted to construct a platform in
front of their house, which was obstructing the way. Her father-
in-law protested against this illegal action and hence, he was
beaten and killed. In cross-examination, the witness admitted
that platform in front of the house of Bheekha Bharti was
constructed about 3 years earlier. No exchange took place
between them and the accused on the day of the incident. Her
husband had lodged proceedings under Section 107 and 133 CrPC
against the accused party. She saw the assault immediately on
coming out of the gate of her house. When she first saw her
father-in-law, he was standing. Shanti and Devaram followed her.
The incident took place in front of Guman Bharti's house. The
witness was confronted with omission in the FIR (Ex.P/1) with
reference to the allegation made by her in her swron testimony
that all the accused persons gave blows to her father-in-law by
the reverse side of Kassis. She stated that she had incorporated
such allegation in the report as well as in the police statement
(Ex.D/1). We have perused the FIR (Ex.P/1) and the police
statement (Ex.D/1) of the witness and find that there is no such
allegation in either of these two previous versions of the witness
that all four accused persons inflicted blows to Kirtaram with
reverse side of Kassis. In the FIR (Ex.P/1), it is specifically
mentioned that Bheekhla gave blow on the head of the father-in-
law of the informant with full force using the reverse side of Kassi.
Therefore, we find that significant and material improvement was
made by Singari when she alleged that all four accused persons
gave blows by reverse side of Kassis to Kirtaram.
(15 of 19) [CRLA-460/1988]
Shanti (P.W.2) stated in her evidence that the incident
took place at about 6 o'clock in the evening. Her grandfather had
gone to feed the bull. She came out of the house and saw that
the four accused persons, all armed with Kassis, were giving blows
thereof from the reverse side on the head of Kirtaram. She
shouted and called her mother. Then she rushed towards the
place of incident and fell on top of her grandfather. Her mother
also tried to intervene. She and her mother both received injuries
at the hands of the accused. In cross-examination, the witness
was confronted with her police statement (Ex.D/2) regarding
significant omissions and contradictions. We find that in the police
statement (Ex.D/2) of this witness as well, there is complete
omission of the allegation that all the three accused persons other
than Bheekha caused injuries to her grandfather by reverse side of
Kassis.
Similar position is reflected from the statement of
Devaram (P.W.6).
Dr. Arjun Ram (P.W.8) conducted autopsy upon the
dead body of Kirtaram and prepared the post-mortem report
(Ex.P/7) taking note of the injuries, which have been described
(supra). The defence gave a suggestion to the Doctor that son of
the deceased was married to daughter of one of his relatives and
that is why he had given contorted/exaggerated description of
injuries found of the body of the deceased. The Doctor denied the
same.
Dr. Pratap Singh (P.W.11), who conducted medical
examination of Kirtaram at the PHC, Mundwa, and issued the
medico legal report (Ex.P/9) deposed that he noticed a
Haematoma admeasuring 4"x4" on right temporal region of
(16 of 19) [CRLA-460/1988]
Kirtaram. The Doctor also prepared the medico legal reports of
Singari (Ex.P/12) and Shanti (Ex.P/13) taking note of the
following injuries:-
Injuries of Singari :
1. Bruise 3 inch x 1 inch on upper back of right shoulder joint.
2. Complaint of pain on 4 inch x 2 inch area on the lower front of
the left side chest.
Injuries of Shanti :
1. Bruise 3 inch x 1 inch on outer lower part of right thigh (left)
2. Bruise 1½ inch x ½ inch on upper back part of right shoulder
joint
In cross-examination, the Doctor affirmed that he did
not notice four separate injuries on the head of Kirtaram.
Apparently, thus, from the testimony of Dr. Pratap Singh (P.W.11)
and Dr. Arjun Ram (P.W.8), a significant contradiction is noticeable
regarding the number and location of injuries suffered by the
deceased Kirtaram.
The Investigating Officer Richhpal Singh (P.W.13) gave
evidence regarding recording of the dying declaration (Ex.P/10),
registration of the previous complaints under Sections 107 and
133 Cr.P.C. between the parties and other steps of investigation.
The defence examined three witnesses namely, Mohan Puri
(D.W.1) for proving alibi of Somar; Tulcha Puri (D.W.2) for proving
alibi of Bhanwaru Bharti and Sattu Puri (D.W.3), who stated that
Kirtaram was hit by a bull and the injuries were received by him in
this manner.
(17 of 19) [CRLA-460/1988]
After appreciating the evidence available on record, a
significant fact which emerges is that the three material eye
witnesses, namely, Singari (P.W.1), the first informant, Shanti
(P.W.5) and Devaram (P.W.6), all alleged that all the four accused
persons were armed with Kassis, which is a sharp edged weapon.
It is not in dispute that Kirtaram was a 75 years old man. The
accused all young men were four in number, whereas the victim
was all alone. The incident took place in front of the house of the
accused. As per the prosecution case, Shanti heard the cries of
her grandfather, after which, she came out of the gate of the
house and claims to have seen accused indulging in the assault.
As per the statement of Dr. Pratap Singh (P.W.11), a solitary injury
was noticed by the medical jurist on the head of the deceased.
Landing this solitary blow would take a fraction of seconds only,
after which the victim must have raised the hue and cry. Thus,
the possibility of the eye-witnesses actually seeing the first blow
being landed on the victim was virtually negligible. This blow was
specifically attributed to the accused Bheekha Bharti in the dying
declaration (Ex.P/10) as well as by the witnesses Singari (P.W.1),
Shanti (P.W.5) and Devaram (P.W.6). We have a serious doubt in
our mind as to whether the eye-witnesses could have actually
seen the first blow being caused to Kirtaram and thus, their
evidence to this extent is doubtful. Furthermore, considering the
fact that as per the site inspection plan (Ex.P/2), there is a
distance of about '23 pawandas', which is about 50 to 70 yards,
the possibility that the witnesses could have seen the accused
landing the blows on the body of the deceased that too with the
"reverse" side of the Kassis is well nigh non-existent. The
witnesses Shanti and Singari also alleged that they too were
(18 of 19) [CRLA-460/1988]
indiscriminately beaten by the accused persons, who were all
armed with Kassis, yet meagre number of injuries, i.e. two each,
were noticed in the injury reports of these two witnesses and
those too by a blunt weapon. It cannot be believed that in spite of
four young assailants armed with Kassis, which is a sharp weapon,
running indiscriminate blows upon the deceased as well as the
witnesses, not a single injury would be caused from the sharp side
of the weapon. Apparently, thus, there has been a clear attempt
of over-implication of accused and exaggeration of allegations by
the prosecution witnesses. Thus, we are inclined to concur with
the findings recorded by the trial court in the impugned judgment
that the implication of the accused other than Bheekha Bharti in
this incident is doubtful. Undoubtedly, two views are possible from
the evidence on record, one which is in consonance with the
conclusions drawn by the trial court and the other possibility of the
accused Jassa Bharti, Bhanwar Bharti and Somar Bharti also
having participated with Bheekha Bharti in the assault. Keeping in
view the ratio of Hon'ble Supreme Court's judgments in the cases
of Ramakant Mishra & Ors. Vs. State of U.P. & Ors. (supra)
and Sanjeev & Anr. Vs. State of Himachal Pradesh (supra),
as two views are possible after appreciation of evidence available
on record, one of them favouring the accused, the acquittal of the
accused persons as recorded by the trial court for the offences
punishable under Sections 302/34, 325/34 and 342 IPC is not
liable to interference. Hence, the Appeal No.134/1989 filed by the
State of Rajasthan to question acquittal of the accused Jassa
Bharti, Somar Bharti and Bhanwar Bharti from the offence under
Section 302 read with Section 34 IPC does not merit acceptance.
(19 of 19) [CRLA-460/1988]
However, conviction of the accused appellants Jassa
Bharti, Bhanwar Bharti and Somar Bharti for the offence
punishable under Section 323/34 IPC pertinently for causing
simple injuries to the injured Singari and Shanti does not warrant
any interference. They have remained in custody for the following
periods :-
S.No. Name of the appellant Date of arrest Custody period
1. Bhanwar Bharti 25.06.1987 5 months 1 day
2. Somar Bharti 25.06.1987 2 month 6 days
3. Jassa Bharti 25.06.1987 2 month 6 days
The incident took place more than 35 years ago. The main
accused Bheekha Bharti has already expired. The accused
Bhanwar Bharti has already remained in custody for a greater
period than that awarded by the trial court. Thus, it would not be
expedient in the interest of justice to direct that the accused
Somar Bharti and Jassa Bharti should be sent to prison for serving
out the remaining part of the sentence of three months imposed
upon them by the trial court. Hence, while accepting the appeal
preferred by the accused appellants Jassa Bharti and Somar Bharti
in part, we hereby reduce the substantive sentence of three
months awarded to them by the trial court for the offence
punishable under Section 323/34 IPC to the period already
undergone by them. D.B. Criminal Appeal No.460/1988 preferred
against conviction is allowed in part in the above terms. The D.B.
Criminal Appeal No.134/1989 preferred by the State against the
acquittal is dismissed as lacking merit.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
Pramod/-
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