State Of Raj vs Khayali And 9 Ors
2023 Latest Caselaw 5447 Raj/2

[2023:RJ-JP:25216-DB]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                    D.B. Criminal Appeal No. 389/2001

 State Of Rajasthan through P.P.
                                                                        ----Appellant
                                         Versus
 1. Khayali son of Bhoorya (since died)
 2. Chuttan son of Sonyaram
 3. Rewarram son of Kaluram (since died)
 4. Puran son of Gyarsa
 5. Rampratap son of Ramchander
 6. Badri son of Chhajya (since died)
 7. Ramjilal son of Mewaram
 8. Harikishan son of Badri
 9. Murari son of Budharam
 10. Lichaman son of Ramdhan
 resident of Bidhota, P.S. Tehla, Rajgarh, District Alwar.
                                                                     ----Respondents

For Appellant(s) : Mr. Javed Choudhary, Addl.G.A.

For Respondent(s) : Mr. Harendra Singh, Adv.

Mr. Jaswant Singh Rathore, Adv.

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL

Judgment

RESERVED ON :: 26/09/2023 PRONOUNCED ON :: 03/10/2023

(Per - Hon'ble Pankaj Bhandari, J.)

1. The appellant-State has preferred this appeal aggrieved by

the impugned judgment and order dated 05.08.2000 passed by

the learned Additional Sessions Judge, Rajgarh, Alwar, whereby he

has acquitted all the accused respondents for the offences

mentioned as under:-

[2023:RJ-JP:25216-DB] (2 of 7) [CRLA-389/2001]

- Appellant Nos.1 to 6 - Khayali, Chuttan, Rewarram,

Puran, Rampratap & Badri have been acquitted for the

offence under Sections 147, 148, 302/149, 323, 326/149,

325/149 of IPC.

- Appellant Nos.7 & 10 - Ramjilal and Lichaman have

been acquitted for the offence under Sections 147, 148,

302/149, 323, 326/149, 325 of IPC.

- Appellant No.8 - Harikishan has been acquitted for the

offence under Sections 147, 148, 302/149, 323/149, 326,

325/149 of IPC.

- Appellant No.9 - Murari has been acquitted for the

offence under Sections 147, 148, 302/149, 323, 326/149,

325/149 of IPC.

2. During the pendency of the present appeal, accused

respondent Nos.1, 3 & 6 - Khayali, Rewarram and Badri have

expired and therefore, appeal was abated against them and now,

the appeal survives only against accused respondent Nos.2, 4, 5 &

7 to 10 - Chuttan, Puran, Rampratap, Ramjilal, Harikishan, Murari

and Lichaman.

3. Succinctly stated the facts of the case are that on

14.07.1997, complainant - Mahadeva (PW-1) lodged a report

(Exhibit-P1) before the SHO, Police Station, Tehla stating that on

13.07.1997 at about 8:00 am he himself, his brother - Badriya

and Gulla Ram were sitting at Peepliwala Kuwa and at that time,

accused - Moharlal, Rampratap, Ramjilal, Rewar and Badri came

with deadly weapons and began to dismantle the boundary wall

[2023:RJ-JP:25216-DB] (3 of 7) [CRLA-389/2001]

(Doli) of their field. When they objected, Moharpal gave a blow on

his head. When Badri and Gulla tried to save him, then all the

accused respondents caused injuries to his brother, upon which,

Gulla, brother of the complainant, expired on the next day. On the

basis of the said report, police registered FIR No.111/1997

(Exhibit-P21) and after conclusion of investigation, filed a charge-

sheet against the accused respondents. The case was committed

to the learned Trial Court. After committal of the case, charges

were framed by the learned Trial Court against the accused

respondents. The accused denied the charges and sought trial,

upon which, 13 witnesses were examined and 46 documents were

exhibited on behalf of the prosecution. Explanation of the accused

respondents was recorded under Section 313 Cr.P.C. In Defence,

statement of Dr. Shiv Shankar Sharma (DW-1) was recorded and

10 documents were exhibited. Learned Trial Court, after hearing

the arguments of both the sides, came to the conclusion that the

incident took place on the spur of the movement. It was a cross

case. The respondent side i.e. accused in this case had also filed

an FIR, prior to the FIR lodged by the complainant of this case.

The learned Trial Court also observed that both the sides have

sustained injuries and acquitted the accused respondents,

aggrieved by which, the appellant - State has preferred the

instant appeal.

4. It is contended by learned Additional Government Advocate

that the learned Trial Court has erred in passing the impugned

judgment and order dated 05.08.2000. It is also contended that

though he has assailed the validity of the impugned judgment and

[2023:RJ-JP:25216-DB] (4 of 7) [CRLA-389/2001]

order dated 05.08.2000, but during the course of arguments, he

has conceded that co-accused - Moharpal was separately tried

and vide judgment and order dated 20.11.2004, he was acquitted

and against his acquittal, State has preferred a Criminal Leave to

Appeal before the Division Bench of this Court, which was rejected

by this Court vide its judgment and order dated 30.08.2005.

5. Learned counsel appearing on behalf of the accused

respondents has supported the impugned judgment and order. It

is contended that after the impugned order dated 05.08.2000 was

passed, case of accused Moharpal was decided by the learned

Additional Sessions Judge and vide its order dated 20.11.2004, he

was acquitted and against his acquittal, the State preferred a D.B.

Criminal Leave to Appeal No.61/2005 titled as State of Raj. Versus

Moharpal, which was dismissed by the Division Bench of this Court

vide order dated 30.08.2005. It is argued that the case of the

present accused respondents is akin to that of Moharpal.

6. It is contended by the learned counsel appearing for the

accused respondents that the prosecution has not given any

explanation with regard to the injuries sustained by the accused

respondents. It is also contended that as per the FIR, the incident

took place when the boundary wall of the complainant's field was

being dismantled by the accused side, however, Investigating

Officer - Ramsharan Sharma (PW-13) has admitted that the

dispute took place with regard to right of passage. It is further

contended that initially, in the FIR, only 5 persons were named

whereas, the police has filed charge-sheet against 11 persons. It

[2023:RJ-JP:25216-DB] (5 of 7) [CRLA-389/2001]

is also contended that case of the present accused respondents is

not distinguishable from that of co-accused - Moharpal, whose

acquittal has been upheld by the Division Bench of this Court.

7. We have considered the contentions raised by learned

counsel for the parties and have carefully gone through the

material on record.

8. It is pertinent to note that complainant - Mahadeva (PW-1)

lodged the FIR after an inordinate delay. The incident is stated to

have taken place at 8:00 am on 13.07.1997 and the FIR was

lodged at 3:00 am on 14.07.1997. It is also pertinent to note that

prior to lodging of the FIR by the complainant side, the accused

side had also lodged an FIR with regard to the injuries sustained

by them. It is evident to note that the cause of occurrence as

stated by the prosecution witnesses is not tallying with that stated

by the Investigating Officer - Ramsharan Sharma (PW-13). As per

the Investigating Officer, the dispute took place with regard to the

passage, whereas as per the prosecution witnesses, when the

accused side were trying to dismantle the boundary wall of the

field of the complainant side, the dispute arose.

9. From the perusal of the certified copy of the injury reports

(Exhibit-D-5 to Exhibit-D-10), it is evident that the accused side

has also sustained injuries. Exhibit-D-5 is the injury report of

Chhutan; Exhibit-D-6 is the injury report of Khyali; Exhibit-D-7/A

is the injury report of Harikishan; Exhibit-D-8/A is the injury

report of Badri, Exhibit-D-9/A is the injury report of Murari Lal and

Exhibit-D-10/A is the injury report of Lichaman. Accused

[2023:RJ-JP:25216-DB] (6 of 7) [CRLA-389/2001]

respondents - Lichaman has sustained 3 injuries including 2

incised wounds caused by a sharp weapon; Murari Lal has

sustained 4 injuries including 1 lacerated wound; Badri has also

sustained 1 lacerated wound; Harikishan has sustained 3 injuries

including 1 lacerated wound; Khyali has sustained 3 bruise injuries

and Chhutan has also sustained 1 bruise injury. It is pertinent to

note that the complainant (PW-1) in his cross-examination has

stated that the accused side were dismantling the boundary wall

of his brother, whereas in the report (Exhibit-P-1), the

complainant has mentioned that his boundary wall was being

dismantled. Hence, the genesis of the crime has not been properly

placed before the Court.

10. It is also pertinent to note that after passing of the impugned

judgment and order dated 05.08.2000, co-accused Moharpal was

also tried by the Court below and he was acquitted vide order

dated 20.11.2004. Against the acquittal order, the State preferred

a D.B. Criminal Leave to Appeal, which was dismissed by the

Division Bench of this Court vide order dated 30.08.2005. The

case of the present accused respondents is akin to that of co-

accused Moharpal and the learned Trial Court has assigned cogent

reasons for acquittal of the accused respondents.

11. In view of the above discussions, we do not find any force in

the present appeal and no ground has been urged before the

Court so as to entertain the present appeal. Hence, the appeal

preferred by the appellant - State is dismissed and the impugned

[2023:RJ-JP:25216-DB] (7 of 7) [CRLA-389/2001]

judgment and order dated 05.08.2000 passed by the learned

Additional Sessions Judge, Rajgarh, Alwar, is upheld.

12. A certified copy of this order along with record of the case be

sent to the learned Trial Court forthwith.

                                   (BHUWAN GOYAL),J                                              (PANKAJ BHANDARI),J

                                   SUNIL SOLANKI /PS









Powered by TCPDF (www.tcpdf.org)