Rajasthan High Court - Jodhpur
State vs Bheema And Ors. (2025:Rj-Jd:3233-Db) on 17 January, 2025
Author: Nupur Bhati
Bench: Nupur Bhati
[2025:RJ-JD:3233-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No.438/2007
State of Rajasthan
----Appellant
Versus
1. Bheema son of Ratna, resident of Gamania Hameera, P.S.
Sallopat, District Banswara.
2. Smt. Resham wife of Bheema, resident of Gamania Hameera,
P.S. Sallopat, Banswara.
3. Hakarsing son of Lovji, resident of Gamania Hameera, P.S.
Sallopat, Banswara.
4. Gautam son of Punia Patel, resident of Gamania Moti, P.S.
Sallopat, Banswara.
5. Ratna son of Lovji, RPO Gamania Hameera, P.S. Sallopat,
Banswara.
6. Magan son Punia Patel, resident of Gamania Moti, P.S.
Sallopat, Banswara.
7. Gulab son of Rama Garasia, resident of Bhandara, P.S.
Sallopat, Banswara.
8. Laxman son of Punia, aged about 30 years, resident of
Gamania Moti, P.S. Sallopat, Banswara.
9. Kamji son of Deva Dindor, aged about 29 years, resident of
Gamania Moti, P.S. Sallopat, Banswara.
10. Havji son of Devji, aged about 26 years, resident of Gamania
Moti, P.S. Sallopat, Banswara.
----Respondents
For Appellant(s) : Mr. Neeraj Kumar Gurjar, AAG
For Respondent(s) : Mr. Jubin Mehta
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment
17/01/2025
Challenging the judgment of acquittal dated 29 th January
2007 in Sessions Case No.81 of 2006, the present Acquittal
Appeal has been filed by the State of Rajasthan.
2. On the basis of the written report dated 31 st July 2006 given
by Partheng, a crime was registered vide Case No.79 of 2006
under Sections 147, 148, 342, 323, 302 and 201/149 of the
Indian Penal Code against the accused persons, namely, Bheema,
Resham, Hakarsing, Gautam, Ratna, Magan, Gulab, Laxman,
Kamji, Havji and Dinesh. After the investigation, the
[2025:RJ-JD:3233-DB] (2 of 5) [CRLA-438/2007]
aforementioned accused persons were sent up for trial and a
charge under Sections 148, 302, 342 and 201/149 of the Indian
Penal Code was framed against all of them, except Dinesh who is
the sole respondent in D.B. Criminal Appeal No.209 of 2015.
3. In Sessions Case No.81 of 2006, the prosecution examined
14 witnesses out of whom PW-9 Chetan and PW-10 Moga were
recovery witnesses. The prosecution projected PW-6 Mukesh as an
eye-witness on whose information a written report was given to
the police by Partheng. Though he was not declared hostile, the
Additional District and Sessions Judge found serious discrepancies
in his testimony and did not believe his testimony. Such findings of
the Additional District and Sessions Judge are reproduced
hereinuder:-
English Translation:
"Even after observing the medical evidence in the light of the
incident narrated by the eyewitness, the statements of
witness Mukesh have not been corroborated. Because it is a
matter of common knowledge that if a person is tied to a tree
with a rope and then beaten up, then the deceased would not
be able to defend himself. However, the condition of his body
does remain constantly in motion. The groaning from the pain
of wounds, being rubbed against the tree and the marks of
struggle as a result of attempting to free oneself from the
rope would definitely be caused and it is also unacceptable
that the bark of the tree would cause normal injuries on the
back of the deceased. Gamania Hamira village may have been
an uninhabited settlement as there is no such evidence
available on record that other than the family members of the
accused, any other person was residing in the village on the
day of the incident. It is not in dispute that 27 injuries were
inflicted on the body of deceased Sohan. During this, he must
have screamed and shouted and in such a situation, it was
natural for the people of the village to gather at the scene of
the incident after hearing his cries. But the fact that no person
of the village became aware of the incident when a serious
[2025:RJ-JD:3233-DB] (3 of 5) [CRLA-438/2007]
offence like murder was being committed by tying him to a
mango tree in a public place is not acceptable. The ligature
marks of tying the body of the deceased with a rope is not
marked in the Panchnama report and postmortem report. In
such a situation, the fact of beating Sohan after tying him to
the mango tree is not found to be corroborated."
4. PW-6 Mukesh did support the prosecution while tendering his
evidence in the Court but we are inclined to accord our approval to
the aforesaid findings recorded by the trial Court for not accepting
his testimony. The inherent improbabilities in his evidence cannot
be ignored and he was rightly found not a trustworthy witness.
PW-9 and PW-10 also did not affirm the recovery of the alleged
lathi and rope and they were also declared hostile. The learned
Sessions Judge discussed their evidence and held that in absence
of any proof of recovery and the FSL report, it cannot be held that
so-called recovered lathi and rope were used in the crime. Though
Dr. Laxmi Prakash tendered evidence as PW-13 that he had
observed 24 injuries on the person of Sohan and one of the
injuries was over temporal region, in absence of any evidence
tendered in the Court on the complicity of the aforementioned
accused persons, the Additional District and Sessions Judge (Fast
Track), at Banswara had no option but to record the judgment of
acquittal of the accused persons.
5. After having gone through the materials on record, we
observe that the written report which was lodged one day after
the occurrence implicating 11 persons in the crime was on a
suspicion that Sohan was done to death on account of his past
relationship with Resham whose marriage was later on solemnized
with Bheema. According to the prosecution, on the date of the
[2025:RJ-JD:3233-DB] (4 of 5) [CRLA-438/2007]
occurrence Sohan and Mukesh were proceeding to village Gamania
Moti and on the way they were apprehended by the accused
persons but Mukesh somehow could escape from the clutches of
the accused persons. This is the further case of the prosecution
that Sohan was tied with rope, hanged through a tree and then
beaten by lathi. However, the Additional District and Sessions
Judge has rendered his opinion that in such a situation there
should have been evidence of co-villagers and there were no such
injuries found on the person of Sohan which could have been
caused to a person who was tied with rope. This is fundamental in
criminal jurisprudence that the identity of the accused must be
established and there should be sufficient evidence on his
complicity in the crime. As we have noticed, Mukesh who was
projected by the prosecution as eye-witness is not a reliable and
trustworthy witness and no other evidence was produced by the
prosecution to connect the respondent nos.1 to 10 with murder of
Sohan.
6. With regard to the medical evidence, it is seen that though
Dr. Laxmi Prakash (PW-9) stated that he had received 24 injuries
on the person of Sohan and one of the injuries was on the
temporal region, in absence of any evidence tendered in the Court
on the complicity of the accused, Dinesh, the learned trial Court
had no option but to record the judgment of acquittal of the
accused. Moreover, as rightly observed by the learned trial Court
the fact that no evidence has been laid to show that the deceased
was tied with a rope to the mango tree and beaten up by the
accused, as stated by PW-6 Mukesh, inasmuch as if the deceased
had been tied with the rope and then beaten, there would have
[2025:RJ-JD:3233-DB] (5 of 5) [CRLA-438/2007]
been ligature marks or abrasions on his body and also, in such
circumstance, the deceased's body would have rubbed against the
mango tree on account of movements made by him in attempt to
escape from the rope, leading to abrasion marks on his back.
However, the same could not be demonstrated by the prosecution,
which further weakens the case of prosecution.
7. This is fundamental in criminal jurisprudence that the
identity of the accused must be established and there should be
sufficient evidence on his complicity in the crime. As we have
noticed, Mukesh (PW-6), who was projected by the prosecution as
eye-witness, was held not reliable and trustworthy and no other
evidence was produced by the prosecution to connect the
respondent with murder of Sohan.
8. We are also conscious that the power of the High Court to
interfere with a judgment of acquittal should be exercised only in
cases where it is demonstrated that the trial Court committed
such error in law which has occasioned in failure of justice.
9. Having regard to the findings recorded by the Additional
District and Sessions Judge which are based on the proper
appreciation on the materials on record, we are not inclined to
interfere with the judgment dated 29 th January 2007 passed in
Sessions Case No.81 of 2006.
10. D.B. Criminal Appeal No.438 of 2007 is dismissed.
(DR. NUPUR BHATI),J (SHREE CHANDRASHEKHAR),J
16-Ravi Khandelwal
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