Haliya vs State Of Rajasthan
2022 Latest Caselaw 13465 Raj

                                        (1 of 10)                   [CRLA-130/1991]


     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 130/1991

Haliya son of Shri Valji, by caste Garasiya, resident of Bhadar
Phalan Vagva, Police Station Dhambola, District-Dungarpur.
                                                                    ----Appellant
                                   Versus
State Of Rajasthan
                                                                  ----Respondent


For Appellant(s)         :     Mr. Mridul Jain.
                               Mr. Bhagat Dadhich.
For Respondent(s)        :     Mr. B.R. Bishnoi, AGC.



           HON'BLE MR. JUSTICE SANDEEP MEHTA
           HON'BLE MR. JUSTICE KULDEEP MATHUR

                             JUDGMENT

Judgment pronounced on                 :::            17/11/2022
Judgment reserved on                   :::            20/07/2022



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

1. The appellant herein has been convicted and sentenced as

below vide judgment dated 23.03.1991 passed by the learned

Sessions Judge, Dungarpur in Sessions Case No.44/1988:

Offences            Sentences                Fine               Fine    Default
                                                                sentences
Section 302 IPC     Life                     Rs.1,000/-         3          Months'
                    Imprisonment                                Additional R.I.
Section 307 IPC     3 Years' R.I.            Rs.500/-           1          Month's
                                                                Additional R.I.
Section 448 IPC     1 Month's R.I.

All the substantive sentences were ordered to run concurrently.

                                        (2 of 10)                 [CRLA-130/1991]



2.   Being aggrieved of         his    conviction and          sentences, the

appellant has 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:-

The parties belong to the Village Bhadar Phala. The house of

the accused Haliya is located at a short distance from the house of

Ratan Lal. The accused Haliya had dug a well in his land a few

days before the incident and dumped the waste material in the

land of Ratan Lal upon which, Ratan Lal and his father Dhanna had

requested Haliya not to do so. Being enraged thereby, Haliya had

extended a threat of killing members of the complainant party. On

28.04.1988 at about 10 O' Clock in the night, Dhanna was sitting

on a cot in the Aangan of his house and was having food.

Dhanna's wife Smt. Leela was sitting nearby. Ratan Lal was

preparing food in his own house. His sister Kamli had delivered a

child and thus, she was also sleeping in the house. Dhanna's other

two sons Himmat Ram and Shanker were guarding the crops in

their field. At that time, Haliya came around with a sword in his

hand and was hurling insinuations of killing. He entered into the

house of Dhanna and inflicted a sword blow on the neck of Shri

Dhanna who fell down on the ground. On hearing the cries, Ratan

Lal rushed to the place of incident on which, Haliya inflicted a

sword blow to Ratan Lal as well which landed on his hand. Ratan

Lal persisted in his attempts to disarm Haliya who received some

injuries in the process. He thereafter ran away from the place of

incident with the sword. Haliya's wife Babita, father Valji and

(3 of 10) [CRLA-130/1991]

brother-in-law Ratna also came to the spot and started throwing

stones towards the house of the complainant. Dhanna expired as a

result of injuries inflicted by Haliya. Incorporating these

allegations, a written report (Ex.P/9) was lodged by Himmat Ram

(PW-5) son of the deceased Dhanna at the Police Station

Dhambola upon which, FIR No.104/1988 was registered for the

offences under Sections 302 and 307/34 IPC and investigation was

commenced.

The Investigating Officer prepared the spot documents,

Panchayatnama Lash of the dead body (Ex.P/1) and seized the

blood stained and control soil vide memorandum (Ex.P/4). The

body of Dhanna was forwarded for autopsy to the Medical Jurist

Dr. Mukesh Agarwal posted as Medical Office Incharge, Simalwara.

The Medical Jurist performed the autopsy and issued the

postmortem report (Ex.P/12) taking note of 9 injuries on the body

of the deceased. The accused Haliya, Basanti, Ratna and Valji

were arrested. Acting in furtherance of the information provided

by Haliya to the I.O. under Section 27 of the Evidence Act

(Ex.P/17), a sword was recovered and seized vide memorandum

(Ex.P/7). After investigation, the accused appellant Haliya was

charge-sheeted for the offences under Sections 448, 302 and 307

IPC and the remaining accused were charge-sheeted for the very

same offences with the aid of Section 34 IPC. The offence

punishable under Section 302 IPC being triable by Court of

Sessions, the case was committed to the Sessions Judge,

Dungarpur where charges were framed against the accused

persons for the above offences which they denied and claimed

trial. The accused Basanti absconded and thus, her trial was

separated. The trial of the remaining three accused continued. The

(4 of 10) [CRLA-130/1991]

prosecution examined as many as 14 witnesses and exhibited 21

documents to prove its case. The accused appellants were

confronted with the circumstances appearing against them in the

prosecution evidence by recording their statements under Section

313 Cr.P.C. They denied the prosecution allegations and claimed to

be innocent.

4. 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, proceeded to convict

and sentence the appellant as above whereupon, he has

approached this Court through the instant appeal for assailing the

impugned Judgment dated 23.03.1991.

5. Learned counsel Shri Mridul Jain and Shri Bhagat Dadhich,

representing the appellant, vehemently and fervently contended

that the entire prosecution case is false and fabricated. As a

matter of fact, none of the so-called eye witnesses saw the

incident as they could not have reached at the scene of occurrence

before Shri Dhanna had received the injuries. The allegations

levelled by the material eye-witnesses are contradicted by the

medical testimony. They further submitted that the learned trial

court has acquitted the three co-accused persons on the basis of

very same evidence and hence, conviction of the accused

appellant Haliya on the same set of evidence, is unjustified. On

these submissions, Shri Jain and Shri Dadhich implored the Court

to accept the appeal, set aside the impugned judgment and acquit

the accused appellant of the charges.

(5 of 10) [CRLA-130/1991]

6. On the other hand, learned Public Prosecutor vehemently

and fervently opposed the submissions advance by the appellant's

counsel. He urged that the appellant bore an animosity with the

deceased over the issue of throwing waste construction material

on the field of the complainant party. Fueled with the motive of

wreaking vengeance, the appellant herein picked up a sword,

trespassed into the house of the complainant party and inflicted

the sword blow on the neck of the deceased Dhanna. The

allegation of the prosecution witnesses that the accused inflicted

the sword blow on the neck of the deceased is fully corroborated

by the evidence of the Medical Jurist. On these grounds, learned

Public Prosecutor submitted that conviction of the appellants as

recorded by the trial court vide impugned Judgment, is absolutely

justified and that the impugned Judgment does not warrant any

interference whatsoever in this appeal.

7. We have given our thoughtful consideration to the

submissions advanced at bar and, have gone through the material

available on record.

8. The prosecution case is based on direct testimony of the eye-

witnesses Himmat Lal (PW-5), Ratan Lal (PW-6), Smt. Leela (PW-

7) and Kamli (PW-8). We now proceed to appreciate the material

prosecution witnesses.

The first information report (Ex.P/9) was lodged by PW-5

Himmat Ram. He deposed on oath that the incident took place on

28.04.1988 at about 9 O' Clock. He was at his field. His father

Dhanna and mother Smt. Leela were present at home. Ratan Lal

was preparing food and so was his wife. They heard cries on

(6 of 10) [CRLA-130/1991]

which, they rushed towards their house and saw that Haliya

inflicted a sword blow on the neck of his father Shri Dhanna.

Ratan Lal also rushed to save Shri Dhanna on which, a sword blow

was also inflicted on his hand. He proceeded to the police station

immediately after the incident and gave the report (Ex.P/9). The

police prepared the spot documents and also seized the sword

from the place of incident. In cross-examination, the witness

admitted that Haliya had given the sword blow to his father before

he reached the place of incident. Thus, apparently, the witness did

not see the incident with his own eyes and the allegations which

he has levelled appears to be based on inferences and

informations given by the other eye-witnesses. The witness

admitted in his cross-examination that Ratan Lal told him about

the manner in which the incident had happened.

9. PW-6 Ratan Lal himself is an injured witness. He stated that

the accused Haliya was constructing a well at his field and was

throwing waste material in their land. They requested Haliya not

to do so on which, he became enraged. On the fateful night,

Himmat and Shanker were present at the well. The witness was

preparing food. His mother was sitting outside the house with his

father. His mother raised a hue and cry on which, he rushed

towards his father's house. No sooner he reached there, Haliya

inflicted the blow of sword on his hand. On hearing the sounds of

commotion, Shanker and Himmat Ram also reached there.

From a perusal of the evidence of Shri Ratan Lal, it can easily

be inferred that he too did not personally see the sword blow on

his father's neck and his evidence is also based on inferences and

informations provided by his mother.

(7 of 10) [CRLA-130/1991]

10. Kamli (PW-8) was present in the house when the accused

assaulted Shri Dhanna and caused him the fatal injury. She stated

that her father was sitting on a cot in the Aangan of their house.

The accused Haliya came there armed with a sword. He inflicted

the blow of the sword on the neck of her father who died at the

spot. She and her mother raised a hue and cry on which, Shanker,

Fateh Lal and Himmat Ram came around. Ratan Lal tried to

overpower the accused who wielded the sword which landed on

the hand of Ratan Lal. Nothing significant was elicited in the cross-

examination conducted from the witness and thus, we find her

testimony to be wholly reliable and convincing. She

unquestionably was present in the house at the time of the

incident and saw the accused inflicting the sword blow on the neck

of her father.

11. Fateh Lal (PW-9) did not support the prosecution case and

was declared hostile.

12. Another star witness of the prosecution is Smt. Leela (PW-7)

wife of the deceased. She stated in her evidence that she was

sitting in the chowk of her house and her husband was taking

meals while sitting on the cot. The accused Haliya came there

armed with a sword. He immediately inflicted blow of the sword on

the neck of her husband who fell down unconscious and expired

immediately. Her sons Ratan Lal, Himmat Ram and Shanker came

around and tried to overpower the accused Haliya. The other

family members of Haliya threw brickbats towards their house.

(8 of 10) [CRLA-130/1991]

On a threadbare appreciation of the evidence of Smt. Leela,

we are of the view that her presence at the place of incident is

absolutely natural. She has given convincing evidence against the

accused appellant Haliya. Nothing significant could be elicited in

the lengthy cross-examination conducted from the lady.

13. Thus, we are of the opinion that the allegation set out in the

evidence of Smt. Leela (PW-7) and Smt. Kamli (PW-8) that the

appellant herein inflicted the fatal sword blow on the neck of the

deceased Dhanna, is reliable and their evidence to this extent is

unimpeachable.

14. Now, we proceed to consider the evidence of the Medical

Jurist Dr. Mukesh Agarwal (PW-10) who stated on oath that he

examined the injured Shri Ratan Lal and took note of a sharp

weapon injury on his right arm underneath which, the right

humerus bone was fractured. He also medically examined the

accused Haliya and took note of two wounds one on the right

forearm and the other on the index finger. He also took note of six

more injuries being lacerated wounds and abrasions on various

body parts of the accused Haliya. The doctor conducted autopsy

upon the dead body of Shri Dhanna and took note of two cut

wounds (i) 7X2 cms. on the right mandible region and (ii) 10X5

cms. on the right neck which was going upto the mastoid region.

All the blood vessels underneath the injury were severed. The

injuries were antemortem and were sufficient in the ordinary

course of nature to cause death. From the evidence of the Medical

Jurist, it is well proved that the deceased Shri Dhanna was caused

repeated blows by a sharp weapon. The injury No.2 severed the

(9 of 10) [CRLA-130/1991]

vital blood vessels in the neck region of the deceased and the

injury was sufficient in the ordinary course of nature to cause

death. The evidence of the Medical Jurist thoroughly corroborates

the evidence of the eye-witnesses Kamli (PW-8) and Smt. Leela

(PW-7). At this junction, we may note here that the evidence of

the Investigating Officer Jaswant Singh (PW-11) that he recovered

the weapon used in the incident i.e. the sword at the instance of

the accused Haliya, is not acceptable because the witness Himmat

Ram (PW-5) clearly stated that the sword was picked up by the

I.O. from the place of incidence. Hence, the recovery of the sword

is not reliable. However, irrespective of the fact that the recovery

of the sword cannot be relied upon, the fact remains that the

reliable testimony of the eye-witnesses Smt. Leela (PW-7) and

Smt. Kamli (PW-8), referred to supra, does not require any

corroboration. So far as the injuries of the accused are concerned,

the same were explained by the witness Ratan Lal who clearly

stated in his evidence that while he was trying to overpower the

accused, some injuries were caused to him. The injuries, which

were suffered by the accused in the very same sequence, rather

affirm his presence at the place of incident. The injuries were

trivial and hence, the same do not in any manner, impinge upon

the reliability of the evidence given by the eye-witnesses. The

accused, upon being questioned under Section 313 Cr.P.C., did not

deny his presence at the place of incident and rather stated that

he was beaten by the members of the complainant party. We have

also discussed this aspect of the case and have concluded that

injuries were caused to the accused after he had inflicted the fatal

sword blows to Shri Dhanna and in the process, when the

(10 of 10) [CRLA-130/1991]

members of the complainant party were trying to overpower the

accused.

15. As a consequence, we are of the firm opinion that the

prosecution has proved its case as against the accused appellant

Haliya beyond all manner of doubt. The impugned Judgment does

not suffer from any infirmity whatsoever warranting interference

therein.

16. The impugned judgment dated 23.03.1991 passed by the

learned Sessions Judge, Dungarpur in Sessions Case No.44/1988,

is affirmed.

17. As a consequence, the appeal is dismissed as being devoid of

merit. The accused appellant is on bail. His bail bonds are

cancelled. He shall forthwith be taken into custody and will be

made to serve the sentences awarded to him by the trial court.

18. Record be returned to the trial court.

                                   (KULDEEP MATHUR),J                                    (SANDEEP MEHTA),J


                                    4-Tikam Daiya/-









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