CRLA/24/1999 of MOOL CHAND Vs STATE

[2026:RJ-JP:17088-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Appeal No. 24/1999 Mool Chand S/o Shri Rugha Ram, Resident of Ward No.1 Reengus District Sikar (Presently confined in Central Jail, Jaipur) ----Accused/Appellant Versus The State of Rajasthan through Its Public Prosecutor ----Respondent/Non-Appellant For Appellant(s) : Ms. Savita Nathawat For Respondent(s) : Mr. Amit Kumar Punia, PP HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL HON'BLE MR. JUSTICE BHUWAN GOYAL Order 22/04/2026 PER HON’BLE MAHENDAR KUMAR GOYAL, J. By way of this criminal appeal, the accused-appellant (for brevity, ‘appellant’) has assailed the legality and validity of the judgement dated 17.12.1998 passed by the learned Additional Sessions Judge, Neem Ka Thana (Sikar) (for brevity, ‘learned trial Court’) in Sessions Case No.19/1995 whereby, he has been convicted and sentenced as under:- Section 302 IPC:- Life imprisonment and fine of Rs.1,000/-; in default whereof, six months’ additional simple imprisonment. The relevant facts in nutshell are that Shri Gopiram (PW8) submitted a written report (Ex.P6) at 6:45 pm on 12.05.1995 with Police Station Reengus Camp Hospital, Reengus alleging therein [2026:RJ-JP:17088-DB] (2 of 9) [CRLA-24/1999] that, at about 3:30 pm on that very day, his son Sardar Singh was assaulted with a deadly weapon by the appellant with an intention to commit his murder and he was serious and under treatment in the hospital. Based thereon, an FIR No.124/95 dated 12.05.1995 came to be registered for the offences under Sections 341, 342, 323 and 307 IPC. During the course of investigation, Sardar Singh (deceased) expired. After investigation, the appellant was charge- sheeted under Section 302 IPC whereunder, charge was also framed against him. After trial, he has been convicted and sentenced, as stated hereinabove. Assailing the impugned judgement, learned counsel for the appellant, inviting attention of this Court towards the testimony of Narayan (PW2), Banshi (PW3), Babulal (PW5) and Seduram (PW6), would submit that although, they have claimed to have witnessed the appellant assaulting the deceased but, from their cross-examination, it is apparent that they were not the eye witnesses and have not seen the incident rather, from the testimony of the PW3, it is reflected that he was informed by a gwal (shepherd) of the incident whereupon, he reached the scene of crime and saw a scuffle in between the appellant and the deceased. She contended that the gwal was not produced by the prosecution to lend credence to its case. Advancing her submissions and drawing attention of this Court towards his arrest memo (Ex.P8) as also the statement of Rafiq Ahmed (PW12)-the Investigating Officer, she canvassed that at the time of his arrest, a number of injuries were found on his person which remained unexplained by the prosecution and therefore, in view of the testimony of Banshi (PW3), it is reflected that the prosecution has [2026:RJ-JP:17088-DB] (3 of 9) [CRLA-24/1999] suppressed the true genesis of the case. Learned counsel submitted that this proposition also stands fortified from the fact that as per the prosecution case, the deceased was first taken to the hospital at Reengus as deposed by Narayan (PW2), Banshi (PW3), Babulal (PW5) and Seduram (PW6) where, the written report (Ex.P6) was submitted by Gopiram-father of the deceased to Shri Mahesh Dan Singh (PW11)-the ASI at Police Station Reengus; but, while Narayan has, during the course of his cross examination as PW2, stated that the police did not reach to hospital at Reengus and father of the deceased-Gopiram came directly to Jaipur at about 10 pm whereupon, he informed of the incident to him whereas, Gopiram as PW8 has stated that he reached the Reengus Hospital upon information by his brothers Kaluram and Hanuman in the evening of 12.05.1995 itself and submitted the written report-Ex.P6 which stood corroborated from the deposition of Shri Mahesh Dan Singh (PW11). She further contended that although, as per the prosecution case, the deceased was medically examined at Reengus Hospital and a letter was prepared by the doctor to refer the patient to Jaipur but, neither the injury report nor, any such reference letter was produced by the prosecution creating a doubt as to veracity of its case. Lastly, learned counsel submitted that although, it is alleged that based on his disclosure statement, a glass bottle-the weapon of offence was recovered but, neither the recovery inspires confidence nor, any forensic evidence was led to connect him with the recovery. She, therefore, prayed that the appeal be allowed, the judgement impugned dated 17.12.1998 be quashed and set aside and he be acquitted of the charge framed against him. [2026:RJ-JP:17088-DB] (4 of 9) [CRLA-24/1999] Per contra, learned Public Prosecutor, opposing the submissions, contended that the learned trial Court has recorded the finding of guilt of the accused under Section 302 IPC based on appreciation of cogent evidence available on record. He submitted that the prosecution was able to establish, beyond reasonable doubt, from ocular testimony, medical evidence and recovery of incriminating material from possession of the appellant that he has committed murder of Sardar Singh and therefore, the impugned judgement warrants no interference. He, therefore, prayed for dismissal of the appeal. Heard. Considered. As per the postmortem report of the deceased (Ex. P17) and the testimony of Dr. P.C. Vyas (PW10)-who conducted the autopsy, it is apparent that the deceased had received a number of external injuries including a lacerated wound of 1x½ cm bone deep with clotted blood just above left half of left eyebrow with diffuse swelling on left frontal region and left temporal regions with left eye turning black, an abrasion measuring 1x½ cm on left temporal region and diffuse swelling on right frontal region and right upper and lower eyelids turning the right eye to black. On dissection, thick subscalp hematoma was found on right fronto-parieto- temporal regions, the layer of subscalp hematoma on left fronto- parietal regions. The membranes showed thick layer of subdural hematoma on right fronto-parieto-temporal regions with intracerebral hemorrhage in left frontal lobe of brain and contusion of 1½x1 cm on brain stem. Cause of death opined was coma as a result of injuries to brain which were sufficient, in ordinary course of nature, to cause death. [2026:RJ-JP:17088-DB] (5 of 9) [CRLA-24/1999] Thus, it is found to be an established case of homicidal death. The moot question for consideration of this Court is as to whether the prosecution has been able to connect the appellant with the offence as alleged. The prosecution story began from the written report (Ex.P6) submitted by Gopiram (PW8)-father of the deceased. Indisputably, he has not seen the incident and his testimony is hearsay based on the information furnished to him by his brothers Kaluram and Hanuman. However, none of the aforesaid brothers was examined by the prosecution. Narayan (PW2)-another brother of Gopiram, has stated that he apprised Gopiram of the entire incident at Jaipur where he reached at about 10 pm. He has categorically stated during his cross-examination that Gopiram did not come to hospital at Reengus whereas, the written report was submitted at the Reengus Hospital as is reflected from the ‘karyawahi police’ endorsed therein as also from the testimony of Mahesh Dan Singh (PW11)-an ASI at Police Station Reengus, who has received the Ex.P6. In view of the aforesaid evidence, a doubt is created as to the source of information based whereupon the PW8 has given the written report. We find it worthy to mention here another important aspect mentioned in the written report. In it, it was alleged that the appellant assaulted the deceased with ‘deadly weapon’ whereas, as per the prosecution case, a wine bottle was used by the appellant for inflicting injuries on the body of the deceased which, by no means, could be reckoned as the ‘deadly weapon’ especially, in intact condition as is the situation obtaining in the instant case. In these circumstances, a doubt is created [2026:RJ-JP:17088-DB] (6 of 9) [CRLA-24/1999] that the written report (Ex.P6) represents the true genesis of the case. Further, we find that the prosecution case rests upon the testimony of Narayan (PW2), Banshi (PW3), Babulal (PW5) and Seduram (PW6) claiming them as the eye witnesses. However, we do not find it to be so. From the cross-examination of Narayan and Seduram, it is apparent that they have not witnessed the incident; rather, they reached the scene of crime after the incident has occurred inasmuch as, they both have admitted that when they have reached the scene of crime on hearing Banshi’s scream, they found the deceased lying on the ground. Further, Naryana has candidly admitted that the scene of crime was not visible from the place where they were sitting and heard Banshi shouting. So far as testimony of remaining two eye witnesses is concerned, while, Babulal (PW5) has turned hostile and has not supported the prosecution case at all despite his cross-examination by the learned Additional Public Prosecutor, the testimony of remaining sole eye witness-Banshi (PW3) does not inspire confidence. In his examination-in-chief, he has stated that upon information by a gwal that Sardar was murdered, he rushed and found a scuffle between the deceased and the appellant. Admittedly, the gwal was neither examined by the prosecution nor, any explanation was furnished for withholding his testimony as he was the first person to have witnessed the incident as per the PW3. It casts a suspicion on the prosecution case. Moreover, while in his examination-in-chief, Banshi did not claim to have seen the appellant assaulting the deceased with any glass bottle or [2026:RJ-JP:17088-DB] (7 of 9) [CRLA-24/1999] otherwise, during his cross-examination, he has admitted that he did not see who has assaulted whom. Thus, his testimony also does not support the prosecution case that the appellant assaulted the deceased with a wine bottle with an intention to commit his murder. In view of the aforesaid discussion, we are not convinced that the prosecution has been able to establish, from the ocular evidence, that the appellant assaulted the deceased with an intention to commit his murder. As already noticed, Banshi (PW3) has deposed of a scuffle between the appellant and the deceased. In the inquest memo (Ex.P14) also, it is mentioned that the deceased died on account of injuries received in the scuffle. Further, the arrest memo (Ex.P8) endorses multiple injuries on the body of the appellant and Shri Rafiq Ahmed (PW12)-the SHO, Police Station Reengus and the Investigating Officer, has admitted that at the time of his arrest, there were marks of injuries on the person of the appellant but, the prosecution did not offer any explanation for the same. The unexplained injuries to the appellant coupled with the testimony of Banshi (PW3) and the endorsement in the Ex.P14 raise a doubt as to veracity of the prosecution case. Further, we find substantial force in the submission of the learned counsel for the appellant that neither the recovery of weapon of offence at his behest inspires confidence nor, the prosecution led any evidence to connect the death of the deceased with the aforesaid recovery. While the weapon of offence-the glass bottle was recovered from an open place behind the residential house of the appellant, Palaram (PW7), one of the panch [2026:RJ-JP:17088-DB] (8 of 9) [CRLA-24/1999] witnesses to it, has categorically stated, in his cross-examination, that the recovery place was an open place near the public way meaning thereby, it was accessible to all and sundry. Moreover, it was not found to be bloodstained and although, it was subjected to forensic examination but, its report was not produced giving an inference that had it been produced, it would have gone against the prosecution case. In view of the aforesaid evidence, we are not convinced that the prosecution has been able to connect the appellant with the recovery of the weapon of offence or that it was used in commission of the offence. In the conspectus of aforesaid analysis of the evidence available on record, we are convinced that the prosecution has not been able to connect the appellant with the alleged offence of murder and findings of the learned trial Court are not based on appreciation of evidence in right perspective. Resultantly, the appeal is allowed. The judgement impugned dated 17.12.1998 is quashed and set aside and the appellant is acquitted of the charge framed against him. Since, the appellant is on bail, his bail/bond stands discharged. In view of the provisions of Section 437-A CrPC (Section 481 Bharatiya Nagarik Suraksha Sanhita, 2023), the appellant namely Mool Chand S/o Shri Rugha Ram is directed to furnish a personal bond in the sum of Rs.25,000/- and a surety in the like amount within four weeks before the Registrar (Judl.) of this Court which shall be effective for a period of six months with the stipulation that in th e event of Special Leave Petition being filed against the judgement or on grant of leave, the appellant [2026:RJ-JP:17088-DB] (9 of 9) [CRLA-24/1999] aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. Pending application(s), if any, also stands disposed of accordingly. (BHUWAN GOYAL),J (MAHENDAR KUMAR GOYAL),J PRAGATI/95