Rajasthan High Court - Jodhpur
Vachna vs State on 9 October, 2025
Author: Farjand Ali
Bench: Farjand Ali
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 418/2000
Vachna S/o Shankra, agedv 33 years, by caste Bheel R/o
Kheda,P.S. Modra, Distt. Jalore.
----Appellant
Versus
State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Suresh Kumbhat
For Respondent(s) : Mr. Rajesh Bhati,AGA
HON'BLE MR. JUSTICE FARJAND ALI
HON'BLE MR. JUSTICE ANUROOP SINGHI
Judgment
Reportable
Judgment Pronounced On : 09/10/2025
Judgment Reserved On : 30/07/2025
BY THE COURT:- (Per Hon'ble MR. FARJAND ALI,J.)
1. By way of filing this instant appeal under Section 374(ii)
Cr.P.C., the appellant has assailed the judgment dated
10.07.2000 passed by learned Additional Sessions Judge,
Bhinmal in Sessions Case No. 51/99 (18/98), whereby the
appellant was convicted for the offence under Section 302
IPC and sentenced to life imprisonment with a fine of ₹100/-,
and in default of payment of fine, to further undergo 15
days' simple imprisonment, and also convicted under Section
341 IPC and sentenced to one month's simple imprisonment,
with both the sentences directed to run concurrently.
2. The prosecution case, in brief, is that on 16.11.1997, Bhura
s/o Uka Bhil, resident of Borta, lodged a written report
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(Exhibit P-10) at Police Station Modra while being at Modra
Hospital. In the report, it was alleged that the complainant
and his brother Bharatiya resided in separate households at
Borata Bhawri but in close proximity. On 15.11.1997 at
about 6:00 p.m., accused Vachna came to the house of
Bharatiya and took him along. When Bharatiya did not return
till about 9:00 p.m., the complainant went out in search of
him. Near Jakrana Nala, the complainant heard cries of his
brother and upon reaching the spot, saw that the accused
persons Vachna, Kheta, and Himta had wrongfully restrained
Bharatiya. It was alleged that accused Vachna struck a stone
blow on the neck of Bharatiya, while Kheta and Himta
assaulted him with fists and kicks. At that time, Mangia s/o
Kesa Bhil along with the complainant intervened and rescued
the injured.
2.1 The report further recited that a quarrel had earlier taken
place between accused Vachna and deceased Bharatiya after
Diwali, and owing to that enmity, accused Vachna, after
consuming liquor, assaulted Bharatiya. The injured was taken
home and later shifted to the hospital when conveyance was
available. On the basis of the said report, an FIR was
registered for the offences under Sections 341 and 323 IPC.
During investigation, since the injured succumbed to his
injuries, Section 302 IPC was also added. Upon completion of
investigation, the Station House Officer, Police Station Modra,
submitted a charge-sheet against the accused persons
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before the Court of learned Additional Chief Judicial
Magistrate, Bhinmal for the offences under Sections 341 and
302/34 IPC. The case was subsequently committed to the
Court of Sessions under Section 209 Cr.P.C.
2.2 After hearing both sides, charges under Sections 302 and
341 IPC were framed against accused Vachna, and charges
under Sections 302/34 and 341 IPC were framed against the
co-accused Kheta and Himta. The accused denied the
charges and claimed trial. The prosecution examined
witnesses including Dr. K.K. Goswami (PW-1), Mod Singh
(PW-2), Mangia (PW-3), Dr. B.L. Chauhan (PW-4), Dr. G.M.
Solanki (PW-5), Bhura (PW-6), Keria (PW-7) and Dursadan
(PW-8), besides producing documentary evidence. In their
statements under Section 313 Cr.P.C., the accused denied
the prosecution allegations and claimed false implication,
asserting that no such assault was committed by them. In
defence, witnesses Mahendra Singh, Bhanwar Singh, and
Chhail Singh were examined.
2.3 Upon appreciation of evidence, the learned Additional
Sessions Judge, Bhinmal convicted accused Vachna s/o
Shankara Bhil under Sections 302 and 341 IPC and
sentenced him to life imprisonment with fine, while co-
accused Kheta and Himta were acquitted of the charge under
Section 302/34 IPC but convicted under Sections 323 and
341 IPC and awarded appropriate sentences.
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2.4 Aggrieved by the judgment and order of conviction and
sentence dated 10.07.2000, the appellant-Vachna has
preferred the instant appeal.
3. Heard learned counsels present for the parties and gone
through the materials available on record.
4. Having given our anxious consideration to the rival
submissions advanced at the Bar and having minutely
scrutinized the ocular as well as medical evidence available
on record, this Court proceeds to record its findings as
follows:
5. At the very threshold, it is to be noticed that the prosecution
version, as unfolded in the FIR (Ex. P-10) and reiterated by
PW-6 Bhura (the complainant and real brother of the
deceased), does not inspire implicit confidence. The FIR
recites that 4-5 persons assaulted the deceased, whereas,
upon investigation, the complicity of all other named persons
was disbelieved and the charge-sheet eventually came to be
filed only against the present appellant. This very divergence
between the initial version and the final police report casts a
cloud upon the unerring veracity of the FIR. Furthermore,
PW-6 Bhura being the brother of the deceased is undeniably
an interested witness and, as is evident from his deposition,
he admitted that at the time of incident there was complete
darkness and no source of light was available. He further
conceded that he only rushed upon hearing cries. In such
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circumstances, it becomes doubtful whether Bhura actually
witnessed the assault being perpetrated or merely reached
the spot moments after the occurrence. The Court cannot
lose sight of this vital infirmity.
6. The evidence of PW-3 Mangiya, however, assumes greater
significance. He is projected as an independent witness and,
in his testimony, he gave a detailed narrative of the events
on the fateful evening. He unequivocally deposed:
"दारू पीते समय हे मीया व भारतीया के बीच बोलवाल हुई थीं, फिर वसना भारतीया के
पीछे दौड़ा को आगे जाकर भारतीया नीचे गिर गया तो भारतीया चिल्लाया तो मैं वहां गया
और मैने हल्ला किया तो भूरिया वहाँ आया । वसना ने एक पत्थर भारतीया के गर्दन के
पीछे मारा था, जो पत्थर बड़ा था । चोट मारकर वसना वहाँ से भाग गए ... वसना के
अलावा खेतीया व हे मा ने भारतीया को थापा-मुक्कों से मारपीट की थीं।"
7. This testimony, if analyzed critically, reveals that the quarrel
arose spontaneously under the influence of liquor. There is
nothing to suggest that the appellant harbored any deep-
rooted enmity against the deceased or that the assault was
premeditated. Rather, discord, if at all, existed between
Hemiya and Bharatiya, and significantly, Hemiya was not
even chargesheeted. The sequence as narrated shows that
after a verbal altercation during a drinking bout, the
deceased tried to flee, fell down, and thereafter the appellant
hurled a stone from behind which struck his cervical region.
Co-accused allegedly inflicted fist and kick blows, but there is
no medical corroboration of any external injuries attributable
to such acts.
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8. Turning to the medical evidence, the post-mortem report
(Ex. P-7) and the testimony of PW-1 Dr. K.K. Goswami, PW-4
Dr. B.L. Chauhan, and PW-5 Dr. G.M. Solanki are material. All
the three medical experts consistently opined that there
were no external or superficial injuries apparent on the
person of the deceased except swelling and neurological
deficit suggestive of paralysis. The internal dissection
revealed dislocation of cervical vertebrae C6 and C7 with
associated haematoma, which led to obstruction of
respiration and ultimately caused death. Dr. Chauhan
candidly admitted in cross-examination that such dislocation
can even be caused by a fall on a hard surface. It is
noteworthy that had the stone been hurled with force from a
distance, some external laceration or contusion would
certainly have been present. The absence of any visible mark
of violence strongly militates against the hypothesis of a
direct fatal assault by a heavy stone. Furthermore, the
allegation of injuries being inflicted by kicks and fists does
not find any corroboration and, in fact, stands in direct
conflict with the medical as well as ocular evidence. The
doctors have clearly stated that apart from cervical
dislocation and haematoma on the outer surface, no other
injury was noticed on the body. It is a well-known medical
proposition that whenever cervical dislocation occurs, some
swelling or haematoma is bound to appear on the external
part corresponding to the site of trauma. Thus, even if the
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prosecution evidence is accepted at face value, it does not
unequivocally establish whether the cervical dislocation
resulted from the impact of a stone or from a fall on a solid
surface. This aspect assumes greater significance in light of
the categorical admission of the medical expert that such
dislocation could indeed be caused by a fall on hard ground.
9. Thus, when the ocular account is juxtaposed with the
medical findings, a grey area emerges. The prosecution
failed to establish with scientific certainty whether the
dislocation was the direct result of the stone blow allegedly
given by the appellant, or whether it was the consequence of
the deceased having already fallen to the ground in an
intoxicated state. The possibility that the injury resulted from
the fall itself cannot be altogether excluded. This uncertainty
goes to the root of the charge under Section 302 IPC, for it is
trite that when two views are reasonably possible on the
cause of death, the one favoring the accused must be
adopted.
10. Another striking feature of the case is the conduct of
the accused. Had there been any intention to cause
homicidal death, nothing prevented the appellant and the
others from inflicting repeated and graver injuries upon the
deceased, especially when he was already in a fallen and
vulnerable condition. Instead, the evidence indicates only a
single blow with a stone, of which no superficial signs were
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noticed by the board of doctors who conducted the autopsy .
Such conduct is hardly consistent with a predetermined
design to kill. The element of mens rea requisite for murder
is conspicuously absent. At the most, the act can be
characterized as a rash and reckless assault committed in
the heat of a drunken brawl.
11. The so-called dying declaration (Ex. P-11) also does not
advance the prosecution case. The Investigating Officer PW-
8 Dursadan conceded that he did not obtain any clinical
fitness certificate from the doctor before recording the same.
The thumb impression or signature of the injured was also
not obtained owing to paralysis. In such circumstances, the
authenticity of Ex. P-11 stands vitiated, and reliance
thereupon would be wholly unsafe. At what point of time the
statement was recorded by the officer not mentioned on Ex.
P-11.
12. It is equally pertinent to note that though PW-7 Keria
stated to have witnessed the assault, his version does not
stand the test of cross-examination. His testimony suffers
from embellishments and partisan coloring, thereby eroding
its probative worth.
13. On a cumulative appreciation of the evidence, this
Court is of the considered view that the prosecution has
failed to prove the charge of murder against the appellant
beyond reasonable doubt. The chain of circumstances does
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not irresistibly point towards the guilt of the appellant under
Section 302 IPC. However, the fact remains that the
appellant did participate in the quarrel and did hurl a stone
which, though not conclusively established to be the sole
cause of death, certainly inflicted hurt upon the deceased.
Similarly, the wrongful restraint of the deceased stands
proved from the consistent testimony of the eye-witnesses,
as the deceased wanted to go in a certain direction but was
restrained to some extent.
14. Therefore, the conviction of the appellant under Section
302 IPC cannot be sustained. Nevertheless, the evidence
unerringly establishes his culpability for voluntarily causing
hurt within the meaning of Section 323 IPC and for wrongful
restraint under Section 341 IPC.
15. Coming to the aspect of sentence, it is relevant that the
appellant belongs to the marginalized Bhil community, is
stated to be advanced in age now, and has already
undergone incarceration of about 14 months during the trial
and appeal. The incident is more than twenty-five years old,
having occurred in November 1997. Keeping in view the
efflux of time, the socio-economic background of the
appellant, and the fact that the occurrence was not
premeditated but arose out of a sudden drunken quarrel, this
Court is persuaded to take a lenient view in the matter of
sentence.
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16. In the considered opinion of this Court, having regard
to the mitigating circumstances, including the age and socio-
economic status of the appellant, the fact that he has
already undergone part of the custodial sentence, and more
particularly the principles enunciated by the Hon'ble
Supreme Court in Haripada Das v. State of West Bengal,
(1998) 9 SCC 678, and Alister Anthony Pareira v. State
of Maharashtra, (2012) 2 SCC 648, the ends of justice
would be sufficiently met if the sentence of imprisonment is
reduced to the period already undergone by the petitioner.
17. In the result, the appeal is partly allowed. The
conviction of the appellant Vachna under Section 302 IPC is
set aside. Instead, he is convicted under Sections 323 and
341 IPC. Having regard to the period of sentence already
undergone, the appellant is sentenced to the period already
undergone for the said offences.
18. Accordingly, The impugned judgment passed by
learned Additional Sessions Judge, Bhinmal in Sessions Case
No. 51/99 (18/98), is hereby set aside. The appellant stands
acquitted of the charge under Section 302 IPC. As the
appellant is already on bail, their bail bond is discharged.
19. However, in compliance with Section 437-A Cr.P.C., the
appellant is directed to furnish a personal bond of ₹40,000/-
along with one surety in the like amount before the trial
court. The bond shall remain in force for six months to
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ensure the appellant's presence before the Hon'ble Supreme
Court in the event a Special Leave Petition is filed against
this judgment and notice thereof is received.
The record be transmitted back forthwith.
(ANUROOP SINGHI),J (FARJAND ALI),J
107-Mamta/-
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