Rajasthan High Court - Jodhpur
State vs Pappu @ Nand Lal And Ors on 25 September, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:38775-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 435/2007
State
----Appellant
Versus
Pappu @ Nand Lal And Ors.
----Respondent
For Appellant(s) : Mr. N.K. Gurjar, GA cum AAG
For Respondent(s) : Mr. R.S. Chundawat
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment
Reserved on 18/09/2024
Pronounced on 25/09/2024
Per Dr. Pushpendra Singh Bhati, J:
1. This criminal appeal has been preferred by the appellant-
State claiming the following reliefs:
"It is, therefore, most humbly and respectfully prayed
that this leave to appeal may kindly be granted, appeal
may kindly be allowed, impugned judgment dated
16.02.2006 so far as it relates to acquittal may kindly be
quashed and set aside and the accused-respondents may
kindly be punished and sentenced for the offence under
section 302/34 IPC."
2. As the pleaded facts and the record would reveal, on
11.07.2004 at around 9:30 p.m., one Mohan (complainant) gave
Parcha Bayan (Ex.P-10) before the Police Station i.e. CHC Bijoliya
stating that at the relevant time, the complainant was engaged in
[2024:RJ-JD:38775-DB] (2 of 11) [CRLA-435/2007]
the work of Hamali and was residing with his family at Bijoliya for
last 25 years.
2.1. It was further stated that on 11.07.2004, in the morning,
when he went in connection with his work (labourer) to Aaroli, and
when he returned back home at around 7-7:30 p.m., one Pappu
(accused-appellant) armed with lathi, was sitting outside the
complainant's house. It was also stated that when the complainant
reached his house, at that time, at around 8:00 p.m., accused-
appellants Chhitar, his wife-Shanti and Pappu were abusing the
complainant and his family.
2.2. It was further stated that thereafter, when the complainant
went near a Temple, the aforesaid three persons i.e. accused-
appellants, armed with lathis, followed the complainant and
started beating him. Upon which, the complainant's wife
intervened, and she was also subjected to beatings at the hands
of the accused party. The said act was intervened by Balu Madrasi,
Salim Khan, Durga and others, who at the relevant time, were
present at the place of incident, gathered and rescued the
complainant and his wife from the clutches of the accused
persons. During the said incident, the complainant's wife got
severely injured, and was taken in the Jeep belonging to one Laloo
Seth to a hospital at Bijoliya, but upon reaching the hospital, the
concerned doctor declared the complainant's wife dead.
2.3. Upon the aforesaid Parcha Bayan (Ex.P-10), the case was to
be pertaining to the offences under Sections 341, 323 & 302 IPC,
whereupon an FIR bearing No.118/2004 (Ex.P-11) was registered
under the said provisions of law and the investigation commenced
[2024:RJ-JD:38775-DB] (3 of 11) [CRLA-435/2007]
accordingly, followed by arrest of the accused persons, namely,
Pappu, Chhitar and Shanti vide Fards (Ex.P-18, 20 & 21
respectively). After investigation, the police filed a charge-sheet
against the accused-appellants under Sections 302 & 323/34 IPC.
2.4. The learned Trial Court framed the charges against the
accused-appellants under Sections 302/34 & 323/34 IPC, the
same upon being read over to the accused-appellants, were
denied by them and they claimed trial; the trial accordingly
commenced.
2.5. During the trial, the prosecution produced witnesses (PW-1
to PW-15) and exhibited documents (Ex.P-1 to Ex.P-23); in
defence, documents (Ex.D-1 to Ex.D-10) were exhibited. The
accused-appellants were examined under Section 313 Cr.P.C.,
wherein while pleading not guilty, the accused-appellants stated
that they had been falsely implicated in this case.
2.6. Thereafter, upon hearing the contentions of both the parties
as well as considering the material and evidence placed on record,
the learned Trial Court, vide the impugned judgment dated
16.02.2006, acquitted the accused-appellants of the charge
against them under Section 302/34 IPC; convicted them under
Section 323/34 IPC, but extended to them the benefit of Section 4
of the Probation of Offenders Act, 1958. Hence, the present appeal
has been preferred by the appellant-State claiming the afore-
quoted reliefs.
3. Learned GA cum AAG appearing on behalf of the appellant-
State submitted that as per Parcha Bayan (Ex.P/10) of the injured
[2024:RJ-JD:38775-DB] (4 of 11) [CRLA-435/2007]
witness PW.13-Mohan, the accused-respondents caused injuries to
him and killed his wife-Mohini (deceased). It was further
submitted that the aforesaid Parcha Bayan (Ex.P/10) was recorded
in the presence of PW.5-Dr. Akshay Saxena, which shows the
involvement of the accused-appellants.
3.1. It was also submitted that a total of three injuries were
caused to the deceased and she died due to rupture of spleen, as
a result of injury No.3 and the said cause of death was fully
supported by PW.5.
3.2. It was further submitted that the learned Trial Court in
impugned judgment clearly observed that the deceased
intervened during the fight to protect her husband PW-13 Mohan,
during course of which, the accused-respondents caused injuries
to her, but despite such observation, the learned Trial Court has
acquitted the accused-respondents under Section 302 IPC is not
justified in law.
3.3. It was further submitted that the medical evidence as well as
other evidence clearly proved that the accused-respondents had
committed the crime in question, but the learned Trial Court
instead of convicting them under Section 302 IPC, convicted them
under Sections 323/34 IPC while giving the benefits of the
Probation of Offenders Act, 1958, which is not sustained in eye of
law.
4. On the other hand, learned counsel for the accused-
respondents, while opposing the aforesaid submissions made on
behalf of the appellant-State, submitted that as per the
postmorten report (Ex.P/13), the deceased died due to rupture of
[2024:RJ-JD:38775-DB] (5 of 11) [CRLA-435/2007]
spleen, which resulted on count of injury no.3, and that the
accused-respondents did not have any knowledge that if such an
injury is caused on a specific party of the body, the same would
result into the death in question.
4.1. It was further submitted that PW.5-Dr. Akshay Saxena in his
testimony stated that the injuries sustained by the deceased could
have been caused even due to falling on the stone, more
particularly, when the place of incident, even as per the
prosecution itself, was a rocky place. It was also submitted that
there was no intention on part of the accused-respondents to
cause death of the deceased and that because of the fight, the
accused-respondents were convicted under Sections 323/34 IPC
while giving aforesaid benefit.
4.2. It was further submitted that all injuries sustained by the
deceased as well as PW.13-Mohan were simple in nature and there
is nothing on record to show that the accused-respondents
deserved to be convicted under Section 302 IPC. It was also
submitted that all the important witnesses including the
eyewitnesses namely, PW.3, PW,6, PW.8, PW.9, PW.12, and PW.14
have turned hostile during the trial, and therefore, the impugned
judgment does not deserve any interference in the present appeal.
5. Heard learned counsel for the parties as well as perused the
record of the case.
6. This Court observes that the allegation against the accused-
respondent pertains to murder of the deceased. After conclusion
of the trial, the learned Trial Court, acquitted the accused-
respondents under Sections 302/34 IPC, while convicting them
[2024:RJ-JD:38775-DB] (6 of 11) [CRLA-435/2007]
under Section 323/34 IPC, and giving them the benefit of
probation.
7. This Court further observes that the main evidence, as
produced by the prosecution, against the accused-respondents,
was the testimony of PW.13-Mohan, the injured witness in the
present case and his Parcha Bayan (Ex.P/10) was recorded by the
PW.10-Omkar Singh in the presence of PW.5-Dr. Akshay Saxena;
as per the Parcha Bayan, the accused-respondents attacked PW.13
and during course of such attack, the deceased intervened and
therefore, she sustained injuries, resulting into her death. In
furtherance, at the time incident in question, Balu Madarasi,
Mohammad Salim, Durga Dhobi and others were also present.
7.1. This Court also observes that the eyewitness Balu Madarasi
(present at the time of incident in question), as per the Parcha
Bayan (Ex.P-10), was not produced as witness by the prosecution
and that another eyewitness PW-3 Mohammad Salim alongwith
the other important witnesses PW.6- Smt. Kalashi, PW.7- Asha
Dhobi, PW.-Durga Shankar, PW.8-Ratan Lal, PW.12-Ram Lal, and
PW.14-Ghanshyam have turned hostile during the trial. Therefore,
when the aforesaid Parcha Bayan (Ex.P/10) of the complainant-
Mohan (PW-13), when seen with the other evidence on record,
does not support the prosecution story.
8. This Court further observes as per the postmortem report
(Ex.P/13), a total of three injuries were found on the body of the
deceased, out of which, two injuries were simple in nature, the
death in question was resulted due to rupture of spleen, on count
of injury No.3; in furtherance, as per the testimony of PW.5-
[2024:RJ-JD:38775-DB] (7 of 11) [CRLA-435/2007]
Akshay Saxena who conducted the postmortem of the deceased,
injury no.3 could have been caused due to collision or falling on a
stone, and it is a matter of record that the place of incident was a
rocky place.
9. This Court further observes that as per the information given
by the accused-respondent Chhitar under Section 27 of the Indian
Evidence Act, 1872, a lathi (Wooden stick) was recovered, but the
said recovery was not supported by PW.2-Moda and PW.1-Ram
Lal, who were the witness (Motbirs) of recovery, and that, they
both have turned hostile during the trial and did not support the
prosecution story. Similarly, as regards recovery of lathi (wooden
stick) made on the basis of the information given by accused-
respondent Pappu, the said recovery was not supported by PW.12-
Ram Lal and PW.3-Mohammad Salim, who were the witness of the
recovery and have turned hostile during the trial, thus, have not
supported the prosecution story.
10. 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
[2024:RJ-JD:38775-DB] (8 of 11) [CRLA-435/2007]
come into play while deciding 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;
[2024:RJ-JD:38775-DB] (9 of 11) [CRLA-435/2007]
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 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."
11. This Court further observes that one eyewitness Babu
Madrasi was not produced as witness before the learned Trial
Court; eyewitness namely PW.3, as well as other important
witnesses i.e. PW-6, PW-7, PW-8, PW-9, PW-12 and PW-14, as
also witnesses of the recoveries have turned hostile during the
trial. This Court also observes that it is reflected from the medical
evidence that the injuries said to have been caused to the
deceased by the accused-respondents were not sufficient to cause
her death. This Court further observes that there was no intention,
on the part of the accused-respondents to commit the crime in
question, is reflected from the record.
12. This Court also observes that the learned Trial Court passed
the impugned judgment of acquittal of the accused-respondents
[2024:RJ-JD:38775-DB] (10 of 11) [CRLA-435/2007]
under Sections 302/34 IPC 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
material, evidence and witnesses at a considerable length and
duly analyzed 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.
13. 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
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.
14. This Court observes that the conclusion regarding acquittal of
the accused-respondents under Sections 302/34 IPC and their
conviction under Sections 323/34 IPC while giving benefits of
Probation of Offenders Act, 1958, as recorded in the impugned
[2024:RJ-JD:38775-DB] (11 of 11) [CRLA-435/2007]
judgment of the learned Trial Court, is justified in law and warrant
no interference by this Court in the instant appeal.
15. 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.
16. Consequently, the present appeal is dismissed, and
accordingly, the impugned judgment passed by the learned Trial
Court is upheld.
16.1. Keeping in view the provision of Section 437-A Cr.P.C., the
accused-respondents are directed to furnish a personal bond in a
sum of Rs. 25,000/- each and a surety bond each 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 accused-respondents, on receipt of notice
thereof, shall appear before the Hon'ble Supreme Court as and
when called upon to do so.
16.2. All pending applications stand disposed of. Record of the
learned Trial Court be sent back forthwith.
(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J
skant/-
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