Rajasthan High Court - Jodhpur

Bakhtawar Singh vs State Of Rajasthan on 24 May, 2024

Bench: Pushpendra Singh Bhati, Yogendra Kumar Purohit

   [2024:RJ-JD:20981-DB]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                          JODHPUR
                     D.B. Criminal Appeal No. 305/1991

    Bakhtawar Singh
                                                                         ----Appellant
                                          Versus
    State Of Rajasthan
                                                                       ----Respondent


   For Appellant(s)             :     Mr. Jaswant Singh Bhati,
                                      Amicus Curiae
   For Respondent(s)            :     Mr. B.R. Bishnoi, PP



        HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT

Judgment

Reportable

Reserved on 09/05/2024 Pronounced on 24/05/2024

Per Dr. Pushpendra Singh Bhati, J:

1. This criminal appeal under Section 374 Cr.P.C. has been

preferred claiming the following reliefs:

"Hence the accused petitioner preferred this appeal in this Hon'ble High Court and prays that the Judgement of the learned trial Judge of conviction and sentence may kindly be set-aside and appellant be acquitted and set at liberty."

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

1983 and the present appeal has been pending since the year

1991.

3. The accused-appellants laid a challenge to the judgment of

conviction and order of sentence dated 10.09.1991 passed by the

[2024:RJ-JD:20981-DB] (2 of 14) [CRLA-305/1991]

learned Additional Sessions Judge No.1, Jodhpur, in Sessions Case

58/85 (State of Rajasthan Vs. Bakhtawarsingh), whereby the

present accused-appellant has been convicted and sentenced as

below:

 Offence under             Sentence                                  Fine
    Section
302 IPC             Life imprisonment Rs.100/-, in default of which,
                                      to  undergo     further   one
                                      month's S.I.

4. As the pleaded facts and the record would reveal, on

16.07.1983, complainant-Jethu Singh has submitted a written

report (Ex.P-3) before Police Station, Sardarpura, Jodhpur stating

therein that on 16.07.1983 at around 3:30 in the noon, while the

complainant-Jethu Singh was standing at Bhaskar Circle

(Chouraha), at that time, one Manohar Singh came to the

complainant and informed him that Bakhtawar Singh (accused-

appellant), who at the relevant time was serving as a Sepoy in the

Railway Protection Force, inflicted Farsa blows 4-5 times on the

head and neck of the complainant's brother, namely, Narayan

Singh, as a result whereof, as per the said Manohar Singh, blood

was oozing from the said parts of Narayan Singh; at the time of

incident, as per the written information, the said Manohar Singh

alongwith one Rajendra Singh and Manmohan were having tea

just opposite the Loco Gate.

4.1. It was further stated in the written report that on seeing this,

when at the relevant time, the said Manohar Singh alongwith

others rushed to rescue the complainant's brother, Narayan Singh,

the accused-appellant alongwith Farsa ran inside Loco. On being

[2024:RJ-JD:20981-DB] (3 of 14) [CRLA-305/1991]

so informed by Manohar Singh, the complainant immediately

rushed towards Loco Running Shed, however, by that time, his

brother was admitted in the hospital, and hence, the complainant

also reached the said hospital, and saw his brother Narayan Singh

in an unconscious state with head injury and blood oozing from

the same.

4.2. On the basis of the aforesaid written report, the police

registered a case under Sections 307 & 324 IPC, and the

investigation accordingly commenced thereafter. However, since

on the same date i.e. 16.07.1983 itself, Narayan Singh,

succumbed to the injuries and died, therefore, the offence under

Section 302 IPC was also added against the accused-appellant.

After investigation, the police filed charge-sheet against the

accused-appellant for the offence under Section 302 IPC before

the competent court. Thereupon, the said competent court,

committed the matter, owing to the case registered and

investigated under the aforesaid provisions of law, committed the

matter to the learned Trial Court.

5. The learned Trial Court framed the charge against accused-

appellant for the offence under Section 302 IPC; the said charge

were read over to the accused-appellant; the accused-appellant

denied the same, and sought due trial, and the trial accordingly

commenced thereafter before the learned Trial Court.

6. During the course of trial, the evidence of 18 prosecution

witnesses were recorded and 17 documents were exhibited on

behalf of the prosecution, whereas, the accused-appellants

produced 06 witnesses and exhibited 13 documents in support of

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defence; whereafter, the accused-appellant was examined under

Section 313 Cr.P.C., in which the accused-appellant, while denying

all the charges, pleaded innocence and their false implication in

the criminal case in question.

7. Thereafter, upon hearing the contentions of both the parties

as well as considering the material and evidence placed on record,

the learned Trial Court, convicted and sentenced the accused-

appellant, as above, vide the impugned judgment of conviction

and order of sentence dated 10.09.1991, against which the

present appeal has been preferred on behalf of the accused-

appellant.

8. Learned counsel for the accused-appellant submitted that in

the present case, complainant-Jethu Singh submitted a written

information (EX.P/3), while Madan Lal (RPF Personnel, posted with

the accused-appellant at loco gate) submitted a written

information (Ex.P/9), prior to the written information that was

lodged by the complainant-Jethu Singh. Learned counsel further

submitted that Madan Lal in his written information stated that

while he was posted at loco gate with the accused-appellant, the

deceased came there and entered unlawfully into the said gate,

whereupon, the accused-appellant stopped him, as a result

whereof, fight broke between the two; later, the deceased came

with a weapon and attacked the accused-appellant, resultantly,

grave injury was caused to the accused-appellant, and therefore,

the FIR was lodged under Sections 307, 353, and 332 IPC. In

furtherance, a charge-sheet had been filed against Manohar Singh

[2024:RJ-JD:20981-DB] (5 of 14) [CRLA-305/1991]

under Section 307 read with Section 114 IPC, who had come at

the place of incident with the deceased.

8.1. It was further submitted that the accused had been on duty

at loco gate to protect railways property by the competent officer,

under the Railway Protection Force Act, 1957, and hence, he is a

public servant, and therefore, he could not have been convicted

under Section 302 IPC, because at the time of the alleged

incident, he was protecting the railways property from the

deceased, thus falling under Exception 3 of Section 300 IPC. Thus,

as per learned counsel, the impugned conviction of the accused-

appellant under Section 302 IPC is not justified in law.

8.2. Learned counsel also submitted that the deceased was a

habitual offender and other criminal cases were also lodged

against him; in the present case, the deceased unlawfully entered

the railways property and indulged into the fight with the accused-

appellant.

8.3. Learned counsel further submitted that DW.3 and D.W.4 both

clearly stated that the deceased came at the loco gate along with

weapon (Farsa) and attacked the accused-appellant, as a result of

which, the accused-appellant sustained grievous injury on the

thumb of his right hand, while trying to stop the deceased.

8.4. Learned counsel also submitted that the statements of

prosecution eye witnesses PW.1 and PW.2 are clearly contradictory

as regards the incident in question. It was further submitted that

the accused was on bail during trial, and after conviction vide the

impugned judgment, his sentence was suspended and he was

released on bail, and therefore, in total, the custody period of

[2024:RJ-JD:20981-DB] (6 of 14) [CRLA-305/1991]

accused is 290 days. The accused is 67 years old person and at

the time of commission of offence in question, he was 26 years

old.

8.5. In support of such submissions, learned Counsel relied upon

the judgment rendered by a Division Bench of the Hon'ble High

Court of Bombay in the case of Rajkumar Anandilal Vs State of

Maharashtra (Crl.A. No. 297 of 1999, decided on 01.09.2005).

9. On the other hand, the learned Public Prosecutor appearing

on behalf of the State, opposed the aforesaid submissions made

on behalf of the appellant, while submitting that the accused-

appellant caused injury to the deceased, followed by repeated

attacks on the deceased, as a result whereof the deceased

sustained a total nine injuries, out of which, four injuries were

caused on the head, and therefore, the accused was rightly

convicted by the learned Trial Court vide the impugned judgment.

9.1. It was further submitted that the blood of the accused-

appellant matched with the clothes recovered from the body of the

deceased. It was also submitted that there are three eye

witnesses i.e PW.1, PW.2 and P.W.3 and all of them supported the

prosecution story.

9.2. It was also submitted that there is no written order regarding

the submission of the accused having been assigned the duty at

loco gate; the accused had the motive/intention to cause death of

the deceased, and therefore, the learned Trial Court convicted him

under Section 302 IPC, which is justified in law.

9.3. It was further submitted that the accused-appellant

committed the heinous offence and caused the murder of

[2024:RJ-JD:20981-DB] (7 of 14) [CRLA-305/1991]

deceased in a brutal manner, and therefore, he is not entitled for

any relief by this Court.

10. Heard learned counsel for the parties as well as perused the

record of the case alongwith the judgment cited at the Bar.

11. This Court observes that the witnesses in the present case

are PW.1- Vikram Singh, PW.2- Om, PW.3- Manohar Singh, PW.7-

Rajendra Singh, PW. 9- Manmohan and PW.-11- Madan Lal (R.P.F.

and also posted at loco gate); PW.3 and PW.11 were declared

hostile during the trial, and the eye witnesses on behalf of the

accused are D.W.3- Dhul Singh and D.W.4- Idan Singh.

12. This Court further observes that there are two sides of the

story; firstly, as per the prosecution, PW.1 stated that he was

sitting at the Tea Shop, and at that time, the worker Om (Omiya)

came and stated that the accused-appellant and the deceased

were fighting, whereupon he came out from the shop and saw the

accused-appellant causing injury to the deceased, who was lying

on the ground; thereafter, the accused went inside the loco gate.

He further stated that the entire incident had happened outside

the loco gate, near Telephone pole, and similar incident, deposed

by PW.2, PW.7, and P.W.9 to the effect that the accused caused

injury to the deceased.

12.1.Secondly, P.W-11 who was posted at loco gate alongwith

accused filed an FIR against the deceased while stating that the

deceased and PW.3 came at loco gate riding on a vehicle (Vickky)

and tried to hit the accused-appellant and attempted to enter the

loco gate, but were stopped by the accused-appellant; meanwhile,

the deceased and PW.3 indulged into a fight with PW.11; during

[2024:RJ-JD:20981-DB] (8 of 14) [CRLA-305/1991]

that time, the accused-appellant came there, and resolved the

dispute. Thereafter, the accused-appellant stood at the gate and

PW. 11 went to report the incident to the police. At that time, the

deceased came alongwith weapon (Dhariya) and attacked the

accused; resultantly, grievous injury was caused on the thumb of

right hand of the accused-appellant; thereafter, other persons i.e

Nain Singh, Aidan Singh and Hari Shankar came and snatched the

weapon from the deceased, due to which injury was caused.

13. This Court also observes that an FIR was lodged, and a case

was registered before the learned Trial Court (Case No. 61/1985-

State Vs. Manohar Singh) wherein Manohar Singh was acquitted.

This Court further observes that the accused during examination

under Section 313 Cr.P.C also provided a similar story and the

D.W-3 and D.W.4 also supportted the aforesaid second part of the

narration by the accused-appellant.

14. This Court further observes that the deceased's post mortem

(Ex.P/14) was done by PW.17- Dr. M.P Joshi and he deposed

during the examination that the deceased died due to injury on

the head and total nine injuries were reflected; during the cross-

examination, the witness stated that medical of accused-appellant

was also done by him, wherein four injuries were found to have

been caused on thumb of the right hand of the accused-appellant,

and the said injury was found to be grievous in nature.

15. This Court also observes that the grievous injury caused by

the deceased to the accused-appellant was proved as per the

statement of the PW.17-Dr. M.P. Joshi and in the case filed on

behalf of the accused-appellant, P.W-3-Manohar Singh was

[2024:RJ-JD:20981-DB] (9 of 14) [CRLA-305/1991]

acquitted, because the main accused in that case, who caused

injury to the accused-appellant, was deceased-Narayan Singh.

16. This Court also perused the statements of D.W.3 and D.W.4,

the eye witnesses of the incident, who supported the story of the

accused-appellant, which is reflected from the fact that the

accused-appellant did not commit any offence and the deceased

came to the place of incident and started fighting with the

accused-appellant; in furtherance, the deceased caused grievous

injury on the thumb of right hand of the accused-appellant.

17. This Court further perused the statements of eye witnesses

namely, P.W. 1 P.W.2, P.W.3, P.W.7, and P.W.9 on behalf of the

prosecution. P.W.1 and P.W.7 have not stated that the accused-

appellant indulged in fight with the deceased as well as that the

deceased at the relevant time was lying on the ground; the same

was admitted during cross examination in trial, and therefore, the

deposition that the accused-appellant caused injury to the

deceased was for the first time deposed by him during the trial.

This Court also observes that P.W.3 and P.W. 11 were declared

hostile, and there are material contradictions between the

depositions made by the eye-witnesses, relating to the incident in

question.

18. This Court further observes that the accused-appellant was

duly assigned the duty at loco gate and the same was stated

during the examination by DW. 5- Khuba Ram (RPF-Commandant)

and D.W. 6- Babulal- Company Commander-RPF.

19. This Court also observes that when the judgment of

conviction is challenged before the Appellate Court, a proper

[2024:RJ-JD:20981-DB] (10 of 14) [CRLA-305/1991]

appreciation of the evidence recorded by the learned Trial Court

has to be made. The power of the Appellate Court is provided

under Section 386 of Cr.PC, which reads as under:-

"386. Powers of the Appellate Court.--

After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction--

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same--

(c) in an appeal for enhancement of sentence--

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or, the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper:

[2024:RJ-JD:20981-DB] (11 of 14) [CRLA-305/1991]

Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:

Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal. "

19.1. This Court further observes that as provided under of

Section 386(b)(i) Cr.P.C., the Appellate Court has the power to

reverse the findings of the conviction, so as to acquit the accused.

20. Now, as regards, the scope of interference in the judgment

of conviction passed by the learned Trial Court, it is considered

appropriate to reproduce the relevant portion of the judgment

rendered by the Hon'ble Apex Court in case of Kamlesh

Prabhudas Tanna v. State of Gujarat, (2013) 15 SCC 263, as

hereunder:-

"9. At this juncture, we are obliged to state that though it may be difficult to state that the judgment suffers from sans reasons, yet it is not at all difficult to say that the reasons ascribed are really apology for reasons. If we allow ourselves to say so, one may ascribe certain reasons which seem to be reasons but the litmus test is to give seemly and condign reasons either to sustain or overturn the judgment. The filament of reasoning must logically flow from requisite analysis, but, unfortunately, the said exercise has not been carried out. In this context, we may refer with profit to the decision in Padam Singh v. State of U.P. [(2000) 1 SCC 621: 2000 SCC (Cri) 285], wherein a two-Judge Bench, while dealing with the duty of the appellate court, has expressed thus: (SCC p. 625, para 2) "2. ... It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a

[2024:RJ-JD:20981-DB] (12 of 14) [CRLA-305/1991]

witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court." (emphasis supplied)

10. In Rama v. State of Rajasthan [(2002) 4 SCC 571:

2002 SCC (Cri) 829], the Court has stated about the duty of the appellate court in the following terms: (SCC p. 572, para 4)

"4. ... It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law."

11. In Iqbal Abdul Samiya Malek v. State of Gujarat [(2012) 11 SCC 312: (2013) 1 SCC (Cri) 636], relying on the pronouncements in Padam Singh [(2000) 1 SCC 621 : 2000 SCC (Cri) 285] and Bani Singh v. State of U.P. [(1996) 4 SCC 720:

1996 SCC (Cri) 848] , this Court has reiterated the principle pertaining to the duty of the appellate court.

12. Recently, a three-Judge Bench in Majjal v. State of Haryana [(2013) 6 SCC 798] has ruled thus: (SCC p. 800, para 7) "7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction.

The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper

[2024:RJ-JD:20981-DB] (13 of 14) [CRLA-305/1991]

application of mind to vital evidence and important submissions which go to the root of the matter."

21. This Court also observes that in the present case, there are

two sides of the story, and both sides have eye witnesses; on

prosecution side, P.W. 1 P.W.2, P.W.3, P.W.7, and P.W.9 are the eye

witnesses, while the P.W.3 and P.W.11 were declared hostile; on

the side of the accused, the eye witnesses are D.W.3 and D.W.4,

and PW.3 also supported the version of the accused.

22. This Court further observes that the accused was posted on

government duty for protecting the railways property, and the

story of the accused is supported by the evidence, when seen with

the injuries opined to be grievous in nature sustained by the

accused and the same was duly proved by the statement of

PW.17-Dr. M.P Joshi. This Court also observes that the prosecution

has failed to prove its case beyond all reasonable doubts and also

the possibility of the crime in question having been committed by

the accused-appellant.

23. This Court also observes that there are reliable and cogent

evidence on record that the accused-appellant's conviction

deserves to be reversed, from conviction to acquittal, as provided

under Section 386(b)(i) of Cr.P.C "reverse the finding and

sentence and acquit".

24. This Court is conscious of the judgment rendered by the

Hon'ble Apex Court in case of Munna Pandey Vs State of Bihar

2023 SCC OnLine SC 1103, relevant portion whereof is

reproduced as hereunder:-

[2024:RJ-JD:20981-DB] (14 of 14) [CRLA-305/1991]

"74. If anyone would ask us the question, "What is the ratio of this Judgment?" The answer to the same would be very simple and plain, in the words of Clarence Darrow;