Rajasthan High Court - Jodhpur
Ramesh vs State Of Rajasthan ... on 22 January, 2025
Author: Nupur Bhati
Bench: Nupur Bhati
[2025:RJ-JD:4117-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal (DB) No. 38/2021
1. Ramesh son of Sh. Madiya, aged about 23 years, resident
of Utiyapada/Utiyapan, P.S. Kotwali, Banswara, District
Banswara. (presently lodged in Central Jail, Udaipur).
2. Dilip son of Sh. Narayan, aged about 21 Years, resident of
Utiyapada/Utiyapan, P.S. Kotwali, Banswara, District
Banswara. (presently lodged in Central Jail, Udaipur).
----Appellants
Versus
State of Rajasthan, through PP
----Respondent
For Appellant(s) : Ms. Anjali Kaushik, Amicus
For Respondent(s) : Mr. Deepak Choudhary, AAG
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment
22/01/2025
Ramesh son of Madiya and Dilip son of Narayan have
challenged the judgment of their conviction under section 302
read with section 34 and section 460 of the Indian Penal Code
passed in Sessions Case No. 184/2017.
2. In Sessions Case No. 184/2017, Ramesh, Dilip and Pankaj
were put on trial on the charge under section 302, section 302/34,
section 460 and 460/34 of the Indian Penal Code. The Sessions
Judge at Banswara, however, acquitted Pankaj of the
aforementioned charge framed against him. Just to indicate, the
charge against the accused persons was framed on 16th December
2020 and an application was moved by the prosecution on
24th August 2020 for adding the charge under section 460 of the
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[2025:RJ-JD:4117-DB] (2 of 10) [CRLAD-38/2021]
Indian Penal Code. This is also quite relevant that on 7 th January
2021 an application was filed on behalf of the accused persons
that they do not want re-examination of the prosecution witnesses
in relation to the charge framed against them under section 460 of
the Indian Penal Code and, in the alternative, under section 460
read with section 34 of the Indian Penal Code.
3. In the trial, the prosecution examined 19 witnesses out of
whom PW-4 Sajudevi who is the wife of the deceased Laxman
Singh was projected as an eyewitness. Several documentary
evidences were also produced on behalf of the prosecution to
prove the aforementioned charges framed against the accused
persons. On behalf of the defence, the police statements of Sohit
vide exhibit D-1, Naresh vide exhibit D-2, Devi Singh vide exhibit
D-3 and Smt. Sajudevi vide exhibit D-4 were laid in evidence. The
Sessions Court at Banswara accepted the prosecution evidence
and believed the testimony of PW-4 Sajudevi and held that
Ramesh and Dilip were guilty for the murder of Laxman Singh.
4. The Sessions Court at Banswara held as under:-
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[2025:RJ-JD:4117-DB] (3 of 10) [CRLAD-38/2021]
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English translation:-
ORDER
"70. As a result, the accused Ramesh son of Madia, resident of
Utiyapada/Utiyapan and Dilip son of Narayan, resident of
Utiyapada/Utiyapan are convicted of the offences under section
302 read with section 34, 460 of the Indian Penal Code and the
accused Pankaj alias Pinkesh son of Nanji is acquitted of the
offences under Section 302 read with Section 34, 460 of the
Indian Penal Code by giving him the benefit of doubt.
71. Both the sides were heard on the point of sentencing. The
learned Public Prosecutor argued that the accused killed the
deceased Laxman Singh by assaulting him with a knife and iron
rod while he was sleeping to guard the property at night. In such
a situation, they should be punished with the harshest
punishment. On the contrary, it has been submitted on behalf of
the learned counsel for the accused that the accused are young
men and they have been in custody for a long time in the instant
case. Therefore, a lenient attitude should be adopted towards
them.
72. Both the parties were heard and the file was perused
carefully. The manner in which the accused killed the sleeping
watchman at night by attacking him with an iron rod and knife, in
such a situation, keeping in mind the facts and circumstances of
the case, it is neither appropriate nor justifiable to have any kind
of sympathy towards the accused.
73. As a result, the accused Ramesh son of Madia resident of
Utiyapada / Utiyapan and Dilip son of Narayan, resident of
Utiyapada / Utiyapan are each convicted under section 302 read
with section 34 of the Indian Penal Code and sentenced to life
imprisonment and fine of Rs. 20,000/- (twenty thousand). In
case of non-payment of fine, each accused will have to undergo
additional 2 (two) years of rigorous imprisonment. The accused
[2025:RJ-JD:4117-DB] (4 of 10) [CRLAD-38/2021]
Ramesh son of Madia resident of Utiyapada / Utiyapan and Dilip
son of Narayan resident of Utiyapada / Utiyapan are sentenced to
life imprisonment and a fine of Rs. 20,000/- (twenty thousand)
each for the charge of being convicted under Section 460 of
Indian Penal Code. In case of non-payment of fine, each accused
will have to undergo additional 2 (two) years of rigorous
imprisonment. Both the original sentences will run concurrently.
The accused will be at liberty to take the benefit of section 428 of
Criminal Procedure Code. A warrant of punishment be issued for
the accused. A copy of the judgment be made available to the
accused Ramesh and Dilip free of cost immediately. Accused
Pankaj alias Pinkesh is in custody. His release order should be
issued to the Deputy Superintendent, District Jail, Banswara and
it should be written that if the said accused is not required in
relation to any other case, then he should be released
immediately.
74. Under the Victim Compensation Scheme, a
recommendation is made to give compensation to the victim
party, which will be determined by the Legal Services Authority.
The amount given earlier under the Victim Compensation Scheme
will be adjusted in it."
5. Ms. Anjali Kaushik, the learned Amicus contends that the
manner of occurrence and the statement of PW-4 Sajudevi who
admitted in the Court that the accused persons had no previous
enmity with her husband would go on to indicate that the accused
had no intention to cause death of Laxman Singh and it was just a
chance that the injuries caused to him led to his death. The
learned Amicus has referred to the judgment in "Bunnilal
Chaudhary v. State of Bihar" (2006) 10 SCC 639 to contend that
on the basis of the prosecution evidence Ramesh can at best be
convicted and sentenced to R.I. for 5 years under section 304 Part
II of the Indian Penal Code.
6. On the other hand, Mr. Deepak Choudhary, the learned
Additional Advocate General submits that in Sessions Case No.
184/2017 the ocular evidence tendered by the prosecution
[2025:RJ-JD:4117-DB] (5 of 10) [CRLAD-38/2021]
witnesses remained unshaken and the accused persons failed to
indicate even by preponderance of probability that they were
falsely implicated in the crime.
7. The most important witnesses for the prosecution were
PW-4 Sajudevi, PW-6 Rakesh and PW-7 Ramanlal. PW-4 who is
wife of the deceased Laxman Singh is the eyewitness. In her
examination-in-chief, PW-4 stated that around 11.00 pm on
3rd September 2017 she was sleeping in the farm house of her
sister and at that time her husband was sleeping on 'Varanda'.
PW-4 further stated that some thieves came there and when her
husband raised Halla she came outside and saw one of the
accused assaulting her husband on his head with Tami and the
other person struck a knife blow in his abdomen. According to
PW-4, there was a third person standing there and holding a Lathi.
In her cross-examination, PW-4 admitted that her husband was
not taken to hospital immediately by Sohit and Devi Singh and
only when her children came there he was taken to the hospital
for treatment. PW-4 further stated that her son Naresh and
Bhanwar Lal arrived there around 11:30 pm. She denied the
suggestion from the defence that her husband had a heart ailment
but did not deny that it was a rainy night. She further stated that
there was sufficient light at the farm house to identify any person.
8. On a glance at the cross-examination of PW-4, we gather
that she weathered the cross-examination and remained firm to
her grounds. We are also alive to the fact that in a murder trial a
family member would not implicate an innocent man and the
suggestion made on behalf of the defence was rightly rejected by
[2025:RJ-JD:4117-DB] (6 of 10) [CRLAD-38/2021]
the Sessions Court. In "Mano Dutt & Anr. v. State of U.P." (2012)
4 SCC 79, the Hon'ble Supreme Court held as under:-
"...24. Another contention raised on behalf of the appellant-
accused is that only family members of the deceased were
examined as witnesses and they being interested witnesses
cannot be relied upon. Furthermore, the prosecution did not
examine any independent witnesses and, therefore, the
prosecution has failed to establish its case beyond reasonable
doubt. This argument is again without much substance. Firstly,
there is no bar in law in examining family members, or any other
person, as witnesses. More often than not, in such cases involving
family members of both sides, it is a member of the family or a
friend who comes to rescue the injured. Those alone are the
people who take the risk of sustaining injuries by jumping into
such a quarrel and trying to defuse the crisis. Besides, when the
statement of witnesses, who are relatives, or are parties known to
the affected party, is credible, reliable, trustworthy, admissible in
accordance with the law and corroborated by other witnesses or
documentary evidence of the prosecution, there would hardly be
any reason for the Court to reject such evidence merely on the
ground that the witness was a family member or an interested
witness or a person known to the affected party......"
9. This is the case of the prosecution that at the instance of
Ramesh a knife was recovered and a Tami (iron rod) was
recovered from the house of Dilip. PW-6 Rakesh and PW-7
Ramanlal who are the recovery witnesses also supported the
prosecution case against the appellants. In their cross-
examination, PW-6 and PW-7 admitted that they were related to
Laxman Singh and for that reason their evidence was challenged
by the defence on the ground that the same was laced with
malice. However, after having gone through the testimony of PW-6
and PW-7, we approve the finding recorded by the Sessions Court
that they are trustworthy witnesses and have fully supported the
recovery of knife vide exhibit P/9, shirt vide exhibit P/10, Tami
(iron rod) vide exhibit P/11, Lathi vide exhibit P/12 and a blood-
stained shirt of sky blue colour vide exhibit P/13.
[2025:RJ-JD:4117-DB] (7 of 10) [CRLAD-38/2021]
10. PW-19 Dr. Ravi Upadhyay who conducted the postmortem
examination found the following injuries on the person of the
deceased Laxman Singh:-
"1. Incised wound with sharp edges measuring 5X2X2 cm
on right side of head.
2. Incised wound with sharp edges measuring 5X2X2 cm
on the back side of the head.
3. Incised wound with sharp edges measuring 2X1X8 cm
on the right side of chest.
4. Incised wound with sharp edges measuring 3X2X1 on
the right elbow.
5. Bluish abrasions measuring 6X3 cm on left forearm. "
11. From the evidence of PW-19 Dr. Ravi Upadhyay, it can be
safely inferred that the injury no.3 which was of the dimension of
2cmX1cmX8cm over the right chest of Laxman Singh proved the
fatal blow which resulted in his death. This injury can be attributed
to Ramesh who was carrying a knife. The injury nos. 1 and 2
which according to PW-19 were also incised wounds are also
attributable to Ramesh. However, the injury no.4 which was a
lacerated wound of the size of 3cmX2cmX1cm is attributable to
Dilip. The injuries caused to Laxman Singh clearly give sufficient
indication to the manner of occurrence. It was around mid-night
when Ramesh and Dilip had gone to the farm house where
Laxman Singh resisted them and a scuffle started between them.
The injury no.5 which was in the nature of abrasion on the right
arm appears to have been caused during the scuffle. In course of
the scuffle, Ramesh gave knife blows and Dilip hit Laxman Singh
on his right elbow with Tami. Now, having regard to the statement
of PW-4 that there was no previous enmity between the accused
persons and her husband and the fact that the appellants were
unknown to her on the date of the occurrence, we are inclined to
hold that the prosecution failed to establish that Ramesh and Dilip
[2025:RJ-JD:4117-DB] (8 of 10) [CRLAD-38/2021]
had requisite intention or knowledge to cause death of Laxman
Singh. Therefore, their conviction under section 302 read with
section 34 of the Indian Penal Code is set aside.
12. Section 300 of the Indian Penal Code enumerates four
circumstances under which a person can be held guilty for murder.
However, it also provides five exceptions to section 300 of the
Indian Penal Code under which a person can be held guilty for
culpable homicide not amounting to murder. Exception-4 to
section 300 of the Indian Penal Code provides that culpable
homicide is not murder if it is committed without premeditation in
a sudden fight in the heat of passion upon a sudden quarrel and
without the offender having taken undue advantage or acted in a
cruel or unusual manner. As we have noticed, PW-4 stated in the
Court that some thieves had arrived at the farm house and her
husband raised Halla and, therefore, we are inclined to hold that
the appellants did not arrive at the farm house with premeditation
and the crime was committed in a sudden quarrel. There may be
some argument as to whether the accused persons had taken
undue advantage or acted in a cruel or unusual manner. But then,
mere number of injuries caused by Ramesh is not enough to hold
that he acted in a cruel or unusual manner or that he had taken
undue advantage. Furthermore, PW-19 admitted in his cross-
examination that such injuries could be caused when a person
runs in the dark night and gets hit with a sharp-edged weapon.
The doctor further stated that if any person falls down on a sharp-
edged weapon then similar injury may be caused on lungs and
head.
[2025:RJ-JD:4117-DB] (9 of 10) [CRLAD-38/2021]
13. In the circumstances of the case, we are inclined to hold that
Dilip is liable to be convicted under section 324 of the Indian Penal
Code and he is sentenced to R.I. for three years. Ramesh who
caused the fatal injury is liable to be convicted and sentenced to
R.I. for five years under section 304 Part I of the Indian Penal
Code (Bunnilal Chaudhary v. State of Bihar).
14. The appellants have also been convicted for committing the
offence under section 460 of the Indian Penal Code which provides
that all persons jointly concerned in lurking house-trespass or
house-breaking by night are liable to be punished. Section 443 of
the Indian Penal Code provides that any person who takes
precaution to conceal house-trespass from some person or who
has a right to exclude or eject the trespasser from the building,
tent or vessel which is the subject of trespass, is said to commit
lurking house-trespass. Section 445 of the Indian Penal Code
defines house-breaking to mean entrance into the house or any
part of it in any of it in such six ways provided thereunder or, if
being in the house or any part of it for the purpose of committing
an offence or having committed an offence therein. According to
the prosecution, Ramesh and Dilip entered the farm house but the
boundary of farm house has not been disclosed by the prosecution
and while so, it cannot be said that they had entered upon the
farm house. In view thereof, conviction and sentence of Ramesh
and Dilip under section 460 of the Indian Penal Code are set aside.
15. Mr. Deepak Choudhary, the learned Additional Advocate
General has indicated that Ramesh and Dilip who were arrested on
6th September 2017 came out on bail by virtue of the order passed
by this Court vide order dated 4 th October 2021 passed in
[2025:RJ-JD:4117-DB] (10 of 10) [CRLAD-38/2021]
D.B. Criminal Misc. Suspension of Sentence Application (Appeal)
No. 453/2021.
16. Dilip who has served a sentence of about four years is,
therefore, discharged of the liability of the bail bonds furnished by
him pursuant to the order dated 4th October 2021. As to Ramesh,
who has also undergone sentence of about four years and six
months with remission is sentenced to the period already
undergone by him. He is discharged of the liability of bail bonds
furnished by him pursuant to the order dated 4th October 2021.
17. D.B. Criminal Appeal (DB) No.38 of 2021 is disposed of in
the aforementioned manner.
(DR.NUPUR BHATI),J (SHREE CHANDRASHEKHAR),J
68-KshamaD/-
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