Rajasthan High Court - Jodhpur
State vs Bhanwar Singh (2024:Rj-Jd:38739-Db) on 19 September, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:38739-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 1015/2001
State of Rajasthan
----Appellant
Versus
Bhanwar Singh S/o Ujjain Singh, R/o Bag Doda, District Sikar,
P.S. Rajgarh, Churu.
----Respondent
For Appellant(s) : Mr. Deepak Choudhary, GA-cum-AAG
For Respondent(s) : Mr. Suresh Kumbhat
Mr. Sheetal Kumbhat
Mr. Naman Bhansali
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Order
19/09/2024
1. This criminal appeal under Section 378 Cr.P.C. has been
preferred by the appellant-State laying challenge to the judgment
of acquittal dated 28.02.2001, passed by the learned Additional
District & Sessions Judge, Rajgarh, Churu in Sessions Case
No.23/1998, whereby the accused-respondent was acquitted of
the offences under Sections 302, 120-B and 201 of the Indian
Penal Code.
2. The matter pertains to an incident which had occurred on
04.02.1998 and the present appeal has been pending since the
year 2001.
3. Brief facts of the case, as placed before this Court by
Mr. Deepak Choudhary, learned Government Advocate-cum-
Additional Advocate General appearing on behalf of the appellant-
[2024:RJ-JD:38739-DB] (2 of 12) [CRLA-1015/2001]
State, are that in the village Bhuwadi, there was a roadways bus
which was coming every day took halt at night. The Driver of the
bus namely Bhanwar Singh (respondent-accused), who is the
resident of Bangdu stayed in the village at the residence of one
Mangtu along with the conductor of the Bus. The complainant
alleged that one month before the complaint on the day of Makar
Sakranti, a dispute occurred between Santro Devi W/o Om Singh,
resident of their village and his brother Jhabar Ram with the
respondent-accused regarding fare for which respondent-accused
was pressurizing them. Respondent-accused kept animosity with
deceased Jhabar Ram for contesting the fare along with Santro
Devi. At 9:00 p.m. on 04.02.1998, one Shri Ram Singh along with
his brother Shri Pema Ram and his cousin brother Shri Bajrang Lal
were sitting together, when they heard some noise coming from
the house of Mangtu to which they rushed there and found that
their brother Jhabar Ram (deceased) was crying and shouting for
help. When they went near him, they saw that respondent-
accused was hitting Jhabar Singh with lathi and consistently
inflicting injuries upon him. All three of them got in between and
released Jhabar Ram from the clutch of Bhanwar Singh, who
subsequently ran away from the spot towards the house of
Mangtu. They took the injured Jhabar Ram to the Rajgarh
Hospital where at about 4:00 a.m. where he succumbed to the
injuries.
4. On the basis of the aforementioned information, an FIR (FIR
No.38/1998) was lodged on an oral report given by complainant
Ram Singh at 5.30 a.m. on 05.02.1998 before P.S. RAC, Rajgarh
(the said complainant Ram Singh was later on examined as PW-4).
[2024:RJ-JD:38739-DB] (3 of 12) [CRLA-1015/2001]
After completion of investigation, the police filed the charge-sheet
against the accused for the offences under Sections 302, 120-B
and 201 of the Indian Penal Code and the trial commenced
accordingly.
5. During the course of trial, the evidence of 15 prosecution
witnesses were recorded and 22 documents were exhibited on
behalf of the prosecution and 3 documents were exhibited on
behalf of the accused-respondent; whereafter, the accused-
respondent was examined under Section 313 Cr.P.C., in which the
accused-respondent pleaded innocence and his false implication in
the criminal case in question.
6. Thereafter, upon hearing the contentions of both the parties
as well as after considering the material and evidence placed on
record, the learned Trial Court, acquitted the accused-respondent,
vide the impugned judgment dated 28.02.2001, against which the
present appeal has been preferred on behalf of the appellant-
State.
7. Learned Government Advocate-cum-Additional Advocate
General submits that allegations are well supported by three eye
witnesses namely Pema Ram (PW-3), Ram Singh (PW-4) and
Bajrang Lal (PW-5) and also by the FSL report and thus, it is a
clear case where the learned trial Court has committed error in
acquitting the respondent-accused. He further submits that as per
the postmortem report four injuries sustained by the deceased
were sufficient to cause death and the same are directly attributed
to the respondent-accused.
7.1 Learned Government Advocate-cum-Additional Advocate
General also submits that the FSL report indicated that there were
[2024:RJ-JD:38739-DB] (4 of 12) [CRLA-1015/2001]
blood stains on the clothes of the respondent-accused and the
same were matched with the blood stains of the deceased and
thus, the circumstantial evidence were also against the
respondent-accused. He further submits that the site plan
(Ex.P/3) explains the happening of the incident and the eye
witnesses, who were in close vicinity and upon hearing the noise,
rushed to the spot (house of Mangtu) and have witnessed the
respondent-accused causing injuries to the deceased - Jhabar
Ram.
7.2 Learned Government Advocate-cum-Additional Advocate
General also submits that the oral report had been lodged early in
the morning at 5.30 a.m. on 05.02.1998, while the incident
occurred in night, but it is natural, as the death has occurred only
at 4:00 a.m. and the family members were busy in attending the
injured who subsequently succumbed to the injuries and
therefore, some delay has been caused in lodging the FIR which is
considerable.
7.3 Learned Government Advocate-cum-Additional Advocate
General further submits that although the motive which has been
given in the complaint and has been used by the prosecution to
carry on the investigation, is that there was some altercation
which took place between Santro Devi W/o Om Singh and the
respondent-accused in which Jhabar Ram (deceased) intervened
and ruffled Bhanwar Singh the Driver of the bus which led to an
animosity, resulting into the incident in question. There was a
motive which has completely failed in the investigation but at the
same time even if the same has failed, the independent existence
of the incident cannot be ruled out. The relevant exhibits are the
[2024:RJ-JD:38739-DB] (5 of 12) [CRLA-1015/2001]
Ex.P/3 Site Plan, Ex.P/14 - Memo of condition of dead body,
Ex.P/20 FSL report, Ex.P/21 Injury report and the Ex.P/22 is the
postmortem report.
7.4 Learned Government Advocate-cum-Additional Advocate
General also submits that the eye witnesses are credible and thus,
the learned trial Court has wrongly arrived at a decision of
acquittal.
8. On the other hand Mr. Suresh Kumbhat, learned counsel
appearing for the respondent-accused, while opposing the
submissions made on behalf of the appellant-State, submits that
the prosecution has failed to prove the reason behind the crime as
neither Santro Devi has been examined nor any reason has been
furnished as to why she was not called in the witness box.
Learned counsel for the respondent-accused further submits that
PW-1 - Mangtu who was the owner of the house where the
respondent-accused stayed for night did not depose in support of
the prosecution story.
8.1 Learned counsel for the respondent-accused also submits
that PW-3 - Pema Ram, PW-4 - Ram Singh and PW-5 - Bajrang Lal
were examined as the eye witnesses to the incident but all three
are the brothers of the deceased (PW-3 and PW-4 are the real
brothers while PW-5 is the cousin brother) and hence they are
interested witnesses.
8.2 Mr. Kumbhat has pointed out that the pre-animosity which
has been proceeded against in the whole trial was never
established and the dispute arising out of the fare having not been
paid by Santro Devi, has completely collapsed as it could not be
sustained by the prosecution and thus the very reasoning, why
[2024:RJ-JD:38739-DB] (6 of 12) [CRLA-1015/2001]
Jhabar Ram (deceased) could have been attacked by respondent-
accused, has gone away.
8.3 Learned counsel for the respondent-accused further submits
that the independent witnesses PW-1 - Mangtu and PW-2 -
Krishna Kumar did not support the previous animosity theory of
the prosecution.
8.4 Learned counsel for the respondent-accused also submits that
the conversation between the Doctor at the Hospital, which is
recorded in the shape of respective deposition, clearly indicates
that three eye witnesses did not know the name of the
respondent-accused and it was only that subsequently the story
was planned and planted as a matter of allegations in the shape of
an FIR in the morning, that too in the oral complaint.
8.5 Learned counsel for the respondent-accused further submits
that a very strange incident occurred that the complainant - Ram
Singh, who is the brother of the deceased, filed a private
complaint, calling for arraying of Gajendra Singh, Tara Chand and
Girwar Singh as co-accused in the matter. All these persons were
alleged in the complaint to have prompted respondent-accused to
kill deceased. The complainant during trial had also prayed for his
safety from these three persons. The cognizance was taken in the
complaint and however, the same was quashed by the Hon'ble
High Court in a petition filed under Section 482 Cr.P.C., same has
also been recorded by the learned Trial Court.
8.6 Learned counsel for the respondent-accused also submits
that such a wide variation automatically demolishes the case of
the prosecution as in the cross-examination of the prosecution eye
witnesses, particularly Pema Ram (PW-3) he has admitted that
[2024:RJ-JD:38739-DB] (7 of 12) [CRLA-1015/2001]
they wanted to pressurize Gajendra Singh, Tara Chand and Girwar
Singh to give evidence against respondent-accused but when they
did not agree, they tried to array them as co-accused, which not
only creates grave doubt in the minds of the Court, but also
demolishes the story of the prosecution.
8.7 Learned counsel for the respondent-accused further submits
that the variations and deviations that have been made in the
prosecution story even at the instance of the complainant create a
doubt that actually PW-3, PW-4 and PW-5 were the eye witnesses
or not and particularly they are very close relatives of the
deceased, in fact, they are real brothers and cousin brothers and
thus, it seems that they were not at the site in question.
8.8 Learned counsel for the respondent-accused also submits
that in case they were sure about their being an eye witness,
there was no requirement of further evidence and thus in the
cross-examination they admitted that they wanted to include
these persons namely Gajendra Singh, Tara Chand and Girwar
Singh as witnesses which further shows their efforts to strengthen
the prosecution case because they were not confident to support
the same in the capacity of eye witnesses.
9. Heard learned counsel for the parties as well as perused the
material available on record.
10. This Court, after seeing the record of the case, particularly
the exhibits pointed out by the eye witnesses and the story
pointed out by the respondent-accused, finds that learned Trial
Court has rightly disbelieved the story of the prosecution because
the motive in the case completely collapses and that Santro Devi
has not been examined whereas, the original reason given by the
[2024:RJ-JD:38739-DB] (8 of 12) [CRLA-1015/2001]
complainant was that a dispute arose because of Santro Devi not
paying the fare to the bus driver Bhanwar Singh (respondent-
accused) in which Jhabar Ram (deceased) intervened, then an
animosity resulted into, the incident in question.
11. This Court finds that the learned trial Court has also taken
into consideration the effort of the complainant to subsequently
array three more co-accused namely Gajendra Singh, Tara Chand
and Girwar Singh even when the original FIR was said to have
been lodged by them in the capacity of eye witnesses and
therefore, in case there was any involvement of those three
persons they should have been brought in the original story. The
kind of haphazard development that has been tried to be brought
on record, by the complainant creates great doubt in the story of
the prosecution. The learned Trial Court has in detail considered
all these deviations and thus has disbelieved the testimony of the
eye witnesses giving the benefit of doubt to the present
respondent-accused.
12. At this juncture, this Court deems it appropriate to reproduce
the relevant portions of the judgments rendered by the Hon'ble
Apex Court in the cases of Mallappa & Ors. Vs. State of
Karnataka (Criminal Appeal No. 1162/2011, decided on
12.02.2024) and Babu Sahebagouda Rudragoudar and Ors.
Vs. State of Karnataka (Criminal Appeal No. 985/2010,
decided on 19.04.2024), as hereunder-:
Mallappa & Ors. (Supra):
"36. Our criminal jurisprudence is essentially
based on the promise that no innocent shall be
condemned as guilty. All the safeguards and the
jurisprudential values of criminal law, are
intended to prevent any failure of justice. The
principles which come into play while deciding
[2024:RJ-JD:38739-DB] (9 of 12) [CRLA-1015/2001]
an appeal from acquittal could be summarized
as:
(i) Appreciation of evidence is the core element
of a criminal trial and such appreciation must be
comprehensive inclusive of all evidence, oral or
documentary;
(ii) Partial or selective appreciation of evidence
may result in a miscarriage of justice and is in
itself a ground of challenge;
(iii) If the Court, after appreciation of evidence,
finds that two views are possible, the one in
favour of the accused shall ordinarily be
followed;
(iv) If the view of the Trial Court is a legally
plausible view, mere possibility of a contrary
view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse
the acquittal in appeal on a re-appreciation of
evidence, it must specifically address all the
reasons given by the Trial Court for acquittal
and must cover all the facts;
(vi) In a case of reversal from acquittal to
conviction, the appellate Court must
demonstrate an illegality, perversity or error of
law or fact in the decision of the Trial Court."
Babu Sahebagouda Rudragoudar and Ors. (Supra):
"38. Further, in the case of H.D. Sundara &
Ors. v. State of Karnataka (2023) 9 SCC
581 this Court summarized the principles
governing the exercise of appellate jurisdiction
while dealing with an appeal against acquittal
under Section 378 of CrPC as follows:
"8.1. The acquittal of the accused further
strengthens the presumption of innocence;
8.2. The appellate court, while hearing an
appeal against acquittal, is entitled to
reappreciate the oral and documentary
evidence;
8.3. The appellate court, while deciding an
appeal against acquittal, after reappreciating
the evidence, is required to consider
whether the view taken by the trial court is
a possible view which could have been taken
on the basis of the evidence on record;
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of
acquittal on the ground that another view
was also possible; and
8.5. The appellate court can interfere with
the order of acquittal only if it comes to a
finding that the only conclusion which can
[2024:RJ-JD:38739-DB] (10 of 12) [CRLA-1015/2001]
be recorded on the basis of the evidence on
record was that the guilt of the accused was
proved beyond a reasonable doubt and no
other conclusion was possible."
39. Thus, it is beyond the pale of doubt that the
scope of interference by an appellate Court for
reversing the judgment of acquittal recorded by
the trial Court in favour of the accused has to
be exercised within the four corners of the
following principles: (a) That the judgment of
acquittal suffers from patent perversity; (b)
That the same is based on a
misreading/omission to consider material
evidence on record; (c) That no two reasonable
views are possible and only the view consistent
with the guilt of the accused is possible from
the evidence available on record."
13. In view of the aforesaid precedent law, this Court finds that
in the present case, the sole eyewitness i.e. Santro Devi to the
incident in question was not produced during the trial; no
evidence was placed on record before the learned Trial Court,
which could, in any way, establish the prosecution case regarding
prior enmity between the deceased and the accused-respondent
and, therefore, it is not established that the respondent-accused
was having any motive to commit the crime in question.
13.1 The other witnesses i.e. PW-3, PW-4 and PW-5, who are
close relatives of the deceased, and that, the said witnesses were
claimed to be the eye witnesses, whereas they were not present
at the place of incident at the relevant time, which creates a
shadow of doubt upon the prosecution story.
14. This Court has carefully gone through the judgment of the
learned trial Court and find that the reason arrived at by the
learned trial Court for the acquittal does not call for any
interference from this Court as the flow of the judgment does not
[2024:RJ-JD:38739-DB] (11 of 12) [CRLA-1015/2001]
indicate any kind of deviation from the facts or the evidence which
has been adduced.
15. This Court also notes that there is no incriminating evidence
connecting the accused-respondent with the crime in question.
The mere presence of the accused at the site or the differences
between the accused and the deceased unless acted upon would
not bring him in the purview of conviction or absolute making out
of the crime.
16. This Court further observes that the learned Trial Court
passed the impugned judgment of acquittal of the accused-
respondent for the offences under Sections 302, 120-B and 201 of
the Indian Penal Code, which in the given circumstances, is
justified in law, because as per the settled principles of law as laid
down by the Hon'ble Apex Court in the aforementioned
judgments, to the effect that the judgment of the Trial Court can
be reversed by the Appellate Court only when it demonstrates an
illegality, perversity or error of law or fact in arriving at such
decision; but in the present case, the learned Trial Court, before
passing the impugned judgment had examined each and every
witnesses at a considerable length and duly analysed the
documents produced before it, coupled with examination of the
oral as well as documentary evidence, and thus, the impugned
judgment suffers from no perversity or error of law or fact, so as
to warrant any interference by this Court in the instant appeal.
17. This Court also observes that the scope of interference in the
acquittal order passed by the learned Trial Court is very limited,
and if the impugned judgment of the learned Trial Court
[2024:RJ-JD:38739-DB] (12 of 12) [CRLA-1015/2001]
demonstrates a legally plausible view, mere possibility of a
contrary view shall not justify the reversal of acquittal as held by
the Hon'ble Apex Court in the aforementioned judgment, and
thus, on that count also, the impugned judgment deserves no
interference by this Court in the instant appeal.
18. Thus, in light of the aforesaid observations and looking into
the factual matrix of the present case as well as in light of the
aforementioned precedent laws, this Court does not find it a fit
case warranting any interference by this Court.
19. Consequently, the present appeal is dismissed.
20. Keeping in view the provision of Section 437-A Cr.P.C., the
respondent-accused is directed to furnish a personal bond in a
sum of Rs.25,000/- and a surety bond in the like amount, before
the learned Trial Court, which shall be made effective for a period
of six months, to the effect that in the event of filing of Special
Leave Petition against this judgment or for grant of leave, the
respondent-accused, on receipt of notice thereof, shall appear
before the Hon'ble Supreme Court as soon as he would be called
upon to do so.
21. All pending applications stand disposed of. Record of the
learned Trial Court be sent back forthwith.
(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J
27-Ramesh/PoonamS/-
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