Rajasthan High Court - Jodhpur
Jeewa And Ors vs State on 19 August, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:31614-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 658/2003
1. Jeewa s/o Lakha (abated on 28.01.2022)
2. Kistura s/o Lakha
3. Babu Ram s/o Lakha
All r/o Gudamalani, District Barmer (Raj.).
(At present lodged in Central Jail, Jodhpur)
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. Manish Bhargava for
Mr. D.S. Udawat
For Respondent(s) : Mr. Ramesh Dewasi PP for the State.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE SUNIL BENIWAL
Judgment
Reserved on 15/07/2025
Pronounced on 19/08/2025
Per Dr. Pushpendra Singh Bhati, J:
1. The instant criminal appeal under Section 374 (2) Cr.P.C. has
been preferred by the accused-appellants against the judgment of
conviction and order of sentence dated 20.05.2023 passed by the
learned Additional Sessions Judge (Fast Track), Balotra Camp
Barmer ('Trial Court'), in Sessions Case No.83/2002 (old
No.77/2000) - State of Rajasthan Vs. Jeewa & Ors.), whereby the
accused-appellants have been convicted and sentenced as under:
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Conviction u/s. Sentence & In Default of
Fine payment of fine
further undergo
323/34 of I.P.C. Six month's R.I. a/w 15 days' R.I.
fine of Rs.500/-
(each of the
accused-appellants)
325/34 of I.P.C. Three years'R.I. One month's R.I.
alongwith fine of
Rs.1000/-
(each of the
accused-appellants)
302/34 of I.P.C. Life Imprisonment One month's R.I.
a/w fine of Rs.1000/-
(each of the
accused-appellants)
1.2. At the outset, it has been brought to the notice of this Court
that accused-appellant No.1-Jeewa had expired, as reflected in the
order dated 28.01.2022, whereby, the instant appeal to the extent
of the said deceased appellant was ordered to stand abated.
Furthermore, learned Public Prosecutor has produced before this
Court the death certificate (dated 07.05.2008) of accused-
appellant No.3-Babu Ram, reflected that he had expired on
26.04.2008, and thus, the present appeal qua the said deceased
appellant as well, stood abated. The said death certificate is taken
on record. Thus, the present appeal is surviving only qua surviving
accused-appellant No.2-Kistura, and the present adjudication is
being made accordingly.
2. The matter pertains to an incident which had occurred in the
year 2000 and the present appeal has been pending since the year
2003.
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3. As reflected from the record, a written report (Ex.P.1) was
presented by the complainant, on 12.09.2000, regarding an
incident which occurred on 11.09.2000, wherein sixteen buffaloes
of accused-Jeewa were grazing in the field of Savda son of
Bagwana Meghwal where the complainant was caretaking. On the
next morning the complainant confined the said buffaloes in
certain Bhakharpura Gate. On the same date, when the
complainant was returning to his Dhani from the field at around
8:00 p.m., on the way he saw the accused-appellants along with
one unkonwn man and a woman coming with the said buffaloes.
Complainant asked the accused as to who is carrying the said
buffaloes. Upon the same, the accused asked his name and said
that those were the same buffaloes which were confined by the
him in the gate, and while saying so, the accused persons (armed
with lathis and axe) surrounded complainant and started beating
him. It was alleged that the injuries were received on right hand's
wrist, right hand's elbow, left hand and left leg. Upon hearing the
cries of the complainant, other villagers namely, Bheraram &
Bagga Khan, Himmataram came to rescue him; however, the said
villagers were also subjected to beatings by the accused persons.
3.1. As per the aforesaid report, the said incident resulted into
serious medical condition of Bheraram and Bagga Khan, upon
which they were taken to the Gudamalani Hospital by Mukhiya
Vikram Singh, Surataram and Sujanaram.
3.2. On the basis of the aforementioned report, the police
registered a case against the accused persons under Sections 341,
143 & 323 IPC and started investigation. During the course of
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investigation, Bagga Khan died under treatment and thus, the
police filed a charge-sheet under Sections 302, 307, 325 & 323/34
IPC; owing to the nature of crime involved, the matter was
committed for Sessions Trial, from where the case was transferred
to the learned Trial Court for the necessary Trial.
3.3. During the course of trial, the statements of 22 witnesses
(P.W. 1 to P.W. 22) were recorded, documents (Ex.P.1 to 35) were
exhibited on behalf of the prosecution; whereafter, the accused-
appellant was examined under Section 313 Cr.P.C., in which he
pleaded innocence and false implication in the criminal case in
question.
3.3. After conclusion of the trial, the learned Trial Court,
convicted and sentenced the accused-appellants, as above, vide
the impugned judgment of conviction and order of sentence dated
20.05.2023; against which, the present appeal has been preferred
by the accused-appellants.
4. Mr. Manish Bhargav, learned counsel appearing on behalf of
the accused-appellant, submitted that there was no direct conflict
or confrontation between the accused-appellants and the
deceased Bagga Khan. It was urged that the complainant's
version, even if taken on face value, does not attribute any
specific role to the present appellant qua the deceased. Learned
counsel further submitted that as per the testimony of P.W.12 -
Dr. Phusaram, who had medically examined the injured persons,
and the injury report (Ex.P.13), the deceased Bagga Khan was
found to have sustained only a single injury on the head. It was
thus contended that the medical evidence does not corroborate
[2025:RJ-JD:31614-DB] (5 of 17) [CRLA-658/2003]
the prosecution's allegation of multiple assaults upon the
deceased, and at the highest, the case would fall within the ambit
of a lesser offence.
4.1. Learned counsel further argued that this contradiction
between the ocular and medical evidence strikes at the root of the
prosecution case. While the prosecution witnesses, particularly the
eye-witnesses P.W. 7, deposed that multiple injuries were caused
to the deceased Bagga Khan during the incident, the medical
evidence, as reflected from the deposition of P.W.12 - Dr.
Phusaram and the injury report (Ex.P.13), clearly records only a
single injury on the head of the deceased. It was thus contended
that the exaggeration in the ocular version, when compared to the
unimpeachable medical record, creates a reasonable doubt in the
prosecution story, which ought to enure to the benefit of the
accused-appellant.
4.2. Learned counsel further submitted that the prosecution has
failed to establish the element of common intention under Section
34 IPC. It was urged that even as per the depositions of the
prosecution witnesses, the fatal head injury was attributed to
accused-appellant Jeewa alone, and not to the present appellant-
Kistura. In such circumstances, fastening the liability of murder
upon the present appellant, by invoking the doctrine of common
intention, is wholly unjustified. Learned counsel emphasized that
in absence of cogent evidence demonstrating a pre-arranged plan
or meeting of minds to commit the alleged offence, the application
of Section 34 IPC is legally untenable.
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4.3. It was further submitted that there was no prior concert or
pre-arranged plan amongst the accused persons to cause the
death of Bagga Khan. The altercation arose suddenly when the
complainant party questioned the accused persons regarding the
buffaloes, and in the spur of the moment, a scuffle ensued. In
such circumstances, fastening joint liability under Section 34 IPC
is unwarranted, particularly when the fatal injury is specifically
attributed to accused Jeewa alone, who has since expired.
4.4. Learned counsel further pointed out that there is no specific
and consistent attribution of injuries to the present appellant.
Though P.W.7, in his deposition, stated that accused-appellant
Kistura had given a lathi blow during the course of the incident,
such assertion is not supported by the medical evidence on
record. The injury reports and the testimony of P.W.12 - Dr.
Phusaram do not reflect any corresponding injury which could be
linked to the alleged act of the appellant. This inconsistency, it was
urged, casts serious doubt on the veracity of the prosecution
version qua the present surviving appellant.
4.5. Learned counsel also assailed the credibility of prosecution
witnesses P.W.10 - Pata and P.W.16 - Shivji, contending that they
are "created witnesses." It was urged that neither of them was
named in the original written report (Ex.P.1), nor were they shown
to be present at the place of occurrence in the earliest version of
the prosecution. Their subsequent introduction during the course
of investigation, without any cogent explanation, raises a strong
inference that they were planted to strengthen the prosecution
[2025:RJ-JD:31614-DB] (7 of 17) [CRLA-658/2003]
case. Hence, their testimonies cannot be relied upon to fasten
criminal liability upon the present appellant.
4.6. Learned counsel further submitted that the alleged recovery
of the lathi at the instance of the appellant is wholly suspicious
and cannot be relied upon. It was pointed out that no independent
witness has corroborated the recovery proceedings, and the
alleged recovery memo suffers from material infirmities. In
absence of reliable corroboration, such recovery loses its
evidentiary value and cannot be used to implicate the present
appellant.
4.7. Learned counsel lastly submitted that the entire incident
arose out of a sudden scuffle, which ensued only when the
complainant asked the accused persons as to who was taking
away the buffaloes. The occurrence was thus spontaneous,
without any premeditation or prior enmity, and in the heat of
passion. It was further contended that the incident took place in
the heat of passion, without the accused-appellant having taken
undue advantage or having acted in a cruel or unusual manner. In
this backdrop, learned counsel urged that the essential ingredients
for the offence of "murder" under Section 302 IPC are not
satisfied, and at the most, the case would fall within Section 304
Part II IPC, as the accused may have had the knowledge that such
injury could be likely to cause death, but there was no intention to
cause death. In such circumstances, the case clearly falls within
the ambit of Exception 4 to Section 300 IPC, thereby reducing the
offence from murder under Section 302 IPC to culpable homicide
not amounting to murder under Section 304 Part II IPC.
[2025:RJ-JD:31614-DB] (8 of 17) [CRLA-658/2003]
4.8. Learned counsel also drew the Court's attention to the injury
report of accused-appellant Jeewa (Ex.D.3), which demonstrates
that even he had sustained injuries during the course of the
occurrence. It was urged that this fact clearly indicates that the
incident was not a one-sided assault by the accused party, but
rather a sudden scuffle in which both sides received injuries. The
presence of injuries on the accused lends further weight to the
defence version that the case falls within the purview of Exception
4 to Section 300 IPC, and thus the conviction under Section 302
IPC is unsustainable.
5. Per Contra, Mr. Ramesh Dewasi, learned Public Prosecutor
opposed the submissions advanced on behalf of the accused-
appellants and submitted that P.W.2 - complainant who
categorically deposed that when he was returning to his Dhani at
around 8:00-9:00 p.m., he saw accused Jeewa, Babu, Kistura and
Jeewa's wife taking away the buffaloes. Upon his enquiry,
accused-appellant Kistura asked his name, and on being told that
he was Varjogaram, Kistura struck him on his leg with a gedi,
whereafter the other accused surrounded him and started beating
him. When he raised a hue and cry, P.W.7 Himataram, P.W.6
Bheraram and the deceased Bagga Khan came forward to
intervene, but they too were assaulted by the accused persons. In
the course of this scuffle, Bagga Khan sustained head injuries, as
a result of which he later succumbed. Learned Public Prosecutor
urged that this ocular testimony, corroborated by other witnesses,
firmly establishes the role and participation of the present
appellant in the crime.
[2025:RJ-JD:31614-DB] (9 of 17) [CRLA-658/2003]
5.1. Learned Public Prosecutor further relied upon the testimony
of P.W.3, an independent witness, who corroborated the version of
P.W.2 - complainant. P.W.3 deposed that on the day of the
incident, accused Jeewa, Babu Ram and Kistura took out the
buffaloes from the gate, and thereafter, on hearing hue and cry
from some distance, he reached the place of occurrence. There he
saw the accused-appellants beating deceased Bagga Khan,
Varjogaram, Bheraram and Himtaram with lathis. It was submitted
that the testimony of P.W.3, being that of an independent witness
with no animus against the accused, lends strong corroboration to
the prosecution version and fortifies the finding of guilt recorded
by the learned Trial Court.
5.2. Learned Public Prosecutor also emphasized the testimony of
P.W.6 - Bheraram, who was himself injured in the occurrence. He
categorically stated that accused Jeewa struck the deceased
Bagga Khan on the head with a lathi, which injury ultimately
proved fatal. Being an injured eyewitness, his testimony carries
great evidentiary value and cannot be discarded lightly. Similarly,
P.W.7 - Himtaram, another injured eyewitness, corroborated the
version of the prosecution and supported the account of P.W.2,
P.W.3, and P.W.6. It was submitted that the chain of evidence
through multiple injured and independent eyewitnesses is
consistent, credible, and firmly establishes the participation of the
accused persons, including the present appellant Kistura.
5.3. Learned Public Prosecutor lastly drew attention to the
deposition of P.W.7 - Himtaram, who specifically stated that all the
accused persons gave beatings to the deceased, and further, that
[2025:RJ-JD:31614-DB] (10 of 17) [CRLA-658/2003]
accused-appellant Kistura himself gave a beating to him (P.W.7)
on his head. This categorical assertion by an injured eyewitness
firmly establishes the participation of the present appellant in the
incident. Being an injured witness, his testimony is entitled to
great weight and inspires confidence, thereby demolishing the
defence plea of false implication.
5.4. Learned Public Prosecutor also drew support from the
depositions of P.W.8 - Tejaram, P.W.10 - Pata, P.W.11- Surataram
corroborated the prosecution version. These witnesses stated that
they had seen the accused persons assaulting the complainant
party, and their testimonies are in harmony with those of P.W.2,
P.W.3, P.W.6 and P.W.7. It was urged that the presence of such
independent witnesses further fortifies the prosecution case and
rules out the possibility of false implication.
5.5. Learned Public Prosecutor further relied upon the medical
evidence on record. Referring to Ex.P.13 - the injury report of
deceased Bagga Khan - and the testimony of P.W.12 - Dr.
Phusaram, it was pointed out that the deceased had indeed
sustained a head injury, which corroborates the version of the
injured eyewitnesses that Jeewa struck him on the head.
5.6. Learned Public Prosecutor further relied upon the testimony
of P.W.22 - Dr. M.P. Joshi, who conducted the post-mortem
examination of deceased Bagga Khan. He categorically deposed
that the deceased had sustained injuries on the head, resulting in
multiple fractures on the skull, along with internal injuries. In his
opinion, the cause of death was shock as a result of the said head
[2025:RJ-JD:31614-DB] (11 of 17) [CRLA-658/2003]
injury. Thus, the ocular version of the eyewitnesses stands fully
corroborated by the medical evidence, and there is no
contradiction between the two.
5.7. Learned Public Prosecutor further submitted that P.W.16 -
Shivji, in his deposition, categorically stated that accused-
appellant Jeewa had earlier threatened him, saying that he would
kill either Gopa, Varjoga or Bagga if he happened to meet them.
This prior threat clearly establishes the motive of the accused,
thereby ruling out the defence plea of a sudden quarrel or scuffle
and lending assurance to the prosecution case of a concerted
assault on the deceased.
5.8. Learned Public Prosecutor, on the strength of the aforesaid
ocular as well as medical evidence, contended that the present
case squarely falls within the ambit of Section 302 IPC. It was
urged that the accused-appellants, acting in furtherance of their
common intention, inflicted a fatal head injury on deceased Bagga
Khan, which has been medically proved to be the cause of death.
The consistency in the testimony of the injured eyewitnesses,
independent witnesses and the medical experts leaves no scope
for doubt. Thus, the offence cannot be mitigated to any lesser
charge under Exception 4 to Section 300 IPC, and the conviction
under Section 302 IPC is fully justified.
6. Heard learned counsel for the parties as well as perused the
record.
7. This Court observes that the present case arises out of an
occurrence dated 11.09.2000, wherein the buffaloes of accused
[2025:RJ-JD:31614-DB] (12 of 17) [CRLA-658/2003]
Jeewa were allegedly found grazing in the agricultural field of one
Savda. Complainant (PW-2), who was working as a caretaker, on
the following morning confined the buffaloes near Bhakharpura
Gate. Later, around 8:00 p.m., while returning to his dhani, PW-2
came across the accused persons along with the said buffaloes. An
altercation ensued, during which PW-2 was allegedly surrounded
and beaten. On hearing the commotion, Bheraram (PW-6),
Himtaram (PW-7) and Bagga Khan (since deceased) reached the
spot. They too were allegedly assaulted, and in the course of the
incident, deceased Bagga Khan sustained a head injury, to which
he later succumbed despite medical treatment.
8. This Court further observes that the prosecution has relied
upon the testimonies of PW-2 Varjogaram, PW-6 Bheraram, PW-7
Himtaram, PW-8 Tejaram, and the medical evidence of PW-22 Dr.
M.P. Joshi, who conducted the post-mortem of deceased Bagga
Khan. Their statements indicate that the entire incident occurred
in the backdrop of a quarrel over grazing of buffaloes in field
where the complainant was caretaking and the said buffaloes
being taken away by accused-appellants.
9. This Court finds that the medical evidence, particularly the
testimony of PW-22 and post-mortem report Ex.P.35, confirms
that the deceased died due to head injuries resulting in multiple
skull fractures. The ocular account and medical evidence on this
point are broadly consistent.
10. However, the prosecution has not led any clear evidence as
to how the scuffle actually began. While PW-2 has stated that he
[2025:RJ-JD:31614-DB] (13 of 17) [CRLA-658/2003]
questioned the accused persons when they were taking away the
buffaloes, there is no consistent version as to what triggered the
physical fight. The witnesses only narrate events after the quarrel
had already started.
11. This gap in the chain of events indicates that the incident
may have been spontaneous and without premeditation ot
planing. Furthermore, there was no anticipation that the
complainant party and the accused would encounter each other.
Significantly, even accused Jeewa sustained injuries (Ex.D.3),
showing that it was a mutual scuffle rather than a pre-planned
assault. There is also nothing on record to suggest any prior
concert or pre-arranged plan on the part of the accused to cause
injuries to the complainant party.
12. This Court further observes that while the prosecution
witnesses have broadly deposed that all the accused persons
participated in the incident, there is no consistent or specific
evidence attributing the fatal head injury, which led to the death
of Bagga Khan, to accused-appellant Kistura. In absence of a
specific attribution, the individual liability of the surviving accused
could not be fastened, particularly when the other co-accused had
already expired during the pendency of the proceedings.
Moreover, the testimony of PW-6 and PW-7 only refers to Kistura
inflicting blows during the scuffle, but not that he caused the head
injury of the deceased. On the contrary, PW-6 has categorically
stated that it was Jeewa who struck the deceased on the head. In
view of the absence of any premeditated or concerted action, the
[2025:RJ-JD:31614-DB] (14 of 17) [CRLA-658/2003]
application of Section 34 IPC to fasten joint liability on Kistura is
not legally sustainable.
13. This Court is also conscious of the Judgment of the Hon'ble
Supreme Court in Jasdeep Singh @ Jassu vs. State of Punjab
(Criminal Appeal No.1584 of 2021 (@SLP (CRL.) No. 11816 of
2019, decided on 07.01.2022), relevant portion whereof reads as
under:
"37. Under the Penal Code, a person is responsible for his
own act. A person can also be vicariously responsible for
the acts of others if he had a common intention to commit
the acts or if the offence is committed by any member of
the unlawful assembly in prosecution of the common object
of that assembly, then also he can be vicariously
responsible. Under the Penal Code, two sections, namely,
Sections 34 and 149, deal with them circumstances when a
person is vicariously responsible for the acts of others.
38. The vicarious or constructive liability under Section 34
IPC can arise only when two conditions stand fulfilled i.e.
the mental element or the intention to commit the criminal
act conjointly with another or others; and the other is the
actual participation in one form or the other in the
commission of the crime.
39. The common intention postulates the existence of a
prearranged plan implying a prior meeting of the minds. It
is the intention to commit the crime and the accused can
be convicted only if such an intention has been shared by
all the accused. Such a common intention should be
anterior in point of time to the commission of the crime,
but may also develop on the spot when such a crime is
committed. In most of the cases it is difficult to procure
direct evidence of such intention. In most of the cases, it
can be inferred from the acts or conduct of the accused and
other relevant circumstances. Therefore, in inferring the
common intention under section 34 IPC, the evidence and
[2025:RJ-JD:31614-DB] (15 of 17) [CRLA-658/2003]
documents on record acquire a great significance and they
have to be very carefully scrutinized by the court. This is
particularly important in cases where evidence regarding
development of the common intention to commit the
offence graver than the one originally designed, during
execution of the original plan, should be clear and cogent."
14. Thus it is settled that for the application of Section 34 IPC,
there must be proof of a pre-arranged plan and the criminal act
must have been committed in furtherance of the common
intention of all. The common intention must be anterior in point of
time to the act constituting the offence and must be shared by all
the accused. In the present case, the incident occurred suddenly
when the complainant questioned the accused persons regarding
the buffaloes. There is nothing on record to indicate that the
accused had come prepared with a prior design to assault the
complainant party or to cause the death of Bagga Khan.
15. In absence of proof of prior concert or any cogent material to
show that accused-appellant Kistura shared a common intention
with Jeewa to cause the death of Bagga Khan, the invocation of
Section 34 IPC is not legally sustainable. The conviction of Kistura
under Section 302/34 IPC, therefore, cannot be upheld. His
culpability has to be examined solely on the basis of his individual
acts. Further, keeping in mind his role and participation in the
incident as reflected from the record, and in view of the absence
of any prior concert or meeting of minds, the conviction qua the
surviving accused-appellant under Sections 325/34 and 323/34
IPC deserve to be altered to that under Sections 325 and 323 IPC.
[2025:RJ-JD:31614-DB] (16 of 17) [CRLA-658/2003]
16. Thus, in view of the above, the present appeal is partly
allowed. Accordingly, the impugned judgment of conviction and
order of sentence dated 20.05.2023 passed by the learned
Additional Sessions Judge (Fast Track), Balotra Camp Barmer, in
Sessions Case No.83/2002 (old No.77/2000) - State of Rajasthan
Vs. Jeewa & Ors.), is modified by altering/substituting the
conviction of the surviving accused-appellant-Kistura from
Sections 302/34, 325/34 & 323/34 IPC to Sections 325 & 323 IPC.
As regards the sentence to be ordered for such conviction, it is
apparent that the accused-appellant Kistura already remained in
custody from 17.09.2000 to 18.06.2003 and considering the
totality of the circumstances and custody period already
undergone by him, the sentence for the charges under Sections
323 and 325 IPC is reduced to the period already undergone by
the surviving accused-appellant in this case, which in the opinion
of this Court is sufficient to meet the ends of justice. The surviving
accused-appellant is on bail; he need not surrender; his bail bonds
stand discharged.
17. Keeping in view the provisions of Section 437-A Cr.P.C. /
Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the
surviving accused-appellant- Kistura is directed to furnish a
personal bond of Rs. 25,000/- and a surety bond of like amount
before the learned Trial Court, which shall remain effective for a
period of six months. The bond shall ensure that in the event of
filing of a Special Leave Petition against this judgment or for grant
of leave, the said accused-appellant shall appear before the
Hon'ble Supreme Court upon receipt of notice.
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18. All pending applications stand disposed of. The record of the
learned Trial Court be returned forthwith.
(SUNIL BENIWAL),J. (DR.PUSHPENDRA SINGH BHATI),J.
SKant/-
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