D.B. Criminal (Jail) Appeal No.1343/2003
(Bhanwar Singh alias Bhanwariya Vs. State of Rajasthan)
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
JUDGMENT
Bhanwar Singh alias Versus State of Rajasthan.
Bhanwariya.
D.B. Criminal (Jail) Appeal No.1343/2003
against the judgment and order dated
06-11-2003 passed by the Sessions
Judge, Jodhpur in Sessions Case
No.12/2003.
Date of Judgment: May 27, 2010
PRESENT
HON'BLE MR. JUSTICE GOVIND MATHUR.
HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI.
Mr. Vijay Vyas, for the appellant.
Mr. K.R. Bishnoi, Public Prosecutor for the State.
BY THE COURT (Per Hon'ble Joshi, J.)
Vide impugned judgment and order dated November
06, 2003, the learned Sessions Judge, Jodhpur, in Sessions Case
No. 72/2003, convicted appellant Bhanwar Sigh alias Bhanwariya
by caste Rajput R/o village Newara, Police Station, Mathaniya,
district Jodhpur, for the offence under Section 302 of the Indian
Penal Code and awarded sentence of life imprisonment with a
fine of Rs.500/- and in default of payment of fine further to
undergo rigorous imprisonment for one month. The appellant-
accused, by way of this jail appeal, has challenged the conviction
recorded and sentence awarded by the learned Sessions Judge in
the aforesaid Sessions Case.
The facts of the case, in succinct, are that on
03.3.2003, at 8:14 AM, one Mahendra Singh (PW 14) lodged an
FIR with the Police Station, Mathaniya, district Jodhpur, stating
therein that in Gram Panchayat, Newara, about 25 to 30 years
D.B. Criminal (Jail) Appeal No.1343/2003
(Bhanwar Singh alias Bhanwariya Vs. State of Rajasthan)
2
ago, one person named as Sumera Ram came and started
residing there. He was getting disablement pension from the
State Government and also used to beg breads and other
eatable items from the villagers. A night before lodging of the
FIR, one unknown person caused death of Sumera Ram by
causing injuries to him. Deceased Sumera Ram 60 years old and
was dump. On the aforesaid report, a criminal case under
Section 302 IPC was registered as FIR No.29 dated 10.3.2003
and the investigation ensued. During the course of
investigation, the investigating officer recorded the statements of
witnesses, arrested the appellant-accused and in pursuance of
the information furnished by the appellant under Section 27 of
the Indian Evidence Act and at the instance of the appellant, a
stone was recovered; the post-mortem on the dead-body of
Sumera Ram was conducted and after investigation, the police
filed Challan in the Court of the learned Sessions Judge. The
learned Sessions Judge, after trial, recorded the conviction of the
appellant-accused under Section 302 IPC and awarded him the
sentence as afore-stated.
We have heard learned counsel for the appellant-
accused and the learned Public Prosecutor for the State.
The counsel for the appellant urges that the
prosecution story hinges on threee sets of evidence against the
appellant: firstly, the evidence regarding last seen of the
appellant with the deceased is led by the prosecution is that of
Smt. Radha, who saw appellant with deceased Sumera Ram in
the Guwadi near his residence in the night; secondly is
D.B. Criminal (Jail) Appeal No.1343/2003
(Bhanwar Singh alias Bhanwariya Vs. State of Rajasthan)
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regarding extra-judicial confession made by the appellant before
PW 6 Chain Singh; and the third set of evidence is regarding
recovery of Rs.37/- from the appellant in pursuance to
information recorded under Section 27 of the Indian Evidence
Act.
According to him, so far as PW 3 Smt. Radha is
concerned, she has only stated that she had seen appellant-
accused Bhanwar Singh in the night before the date of
occurrence of the offence while he was running near the “Patwar
Bhawan.” Learned counsel for the appellant urged that PW 3
Smt. Radha is not an eye witness of the occurrence of the
offence and as per her statement, she had only seen the
appellant-accused while he was running near the “Patwar
Bhawan.”
Regarding the second set of evidence, the main
contention of the learned counsel for the appellant is that as per
the cross-examination of PW 6 Chain Singh, he informed to the
police regarding the extra-judicial confession made by the
appellant before him one day after the date of making such
confession. He further contends that the conduct of this
witness , viz. PW 6 Chain Singh, cannot be said to be normal in
as much as that no such undue delay can be caused in normal
course.
Regarding the third set of evidence, the contention of
the learned counsel for the appellant is that no good and
sufficient motive has been established by the prosecution
regarding commission of offence by the appellant and there is no
D.B. Criminal (Jail) Appeal No.1343/2003
(Bhanwar Singh alias Bhanwariya Vs. State of Rajasthan)
4
evidence on record to establish this fact that the appellant has
committed this offence to grab Rs.200/- from the deceased.
Per contra, the learned Public Prosecutor urged that
the conviction recorded and the sentence awarded by the
learned Sessions Judge is based on cogent reasons and is
established on sound appreciation, scanning and evaluation of
the evidence on record.
We have given our thoughtful consideration to the
arguments advanced by the learned counsel for the parties and
scanned, evaluated and analysed the evidence on record.
PW 3 Smt. Radha, who is said to be an witness, who
claims to have seen the appellant running near the “Patwar
Bhawan”, does not connect the appellant with the crime alleged
to have been committed by him. She has stated only to this
effect that she had seen the appellant in the cote (Gawadi),
while he was running from alleged place of incident.
So far as the statement of PW 6 Chain Singh is
concerned, in his cross-examination, he has stated that after
making the extra-judicial confession by the appellant before him,
he kept mum for a day and on the second day, he informed to
the police regarding the same. This statement of PW 6 Chain
Singh is wholly contrary to the natural human conduct because
there was no reason for him to keep mum for a day for such a
heinous offence and that too when the offence was committed in
his village. More so, generally the extra-judicial confession is
made by an accused before a person, with whom he reposes
utmost faith or expects some benefit by making such statement,
D.B. Criminal (Jail) Appeal No.1343/2003
(Bhanwar Singh alias Bhanwariya Vs. State of Rajasthan)
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but in the instant case, there is no such evidence in this regard.
Thus, the statement of PW 6 Chain Singh cannot be relied on.
So far as the third set of evidence regarding
grabbing of Rs.200/- by the appellant from the deceased is
concerned, there is not even an iota of evidence on record
regarding any such motive; on the other hand, there is evidence
on record that the amount of pension being kept with some
other person of the village. The learned Sessions Judge,
Jodhpur, while relying on the evidence of the aforesaid two
witnesses, viz. PW 3 Smt. Radha and PW 6 Chain Singh, as also
the evidence of the investigating officer regarding the recovery
of money received through pension remaining with some other
person in the village.
Apart from this, the learned Sessions Judge has not
appreciated cross-examination of PW 10 Dr. Raja Ram Sharma,
wherein he stated that while conducting the autopsy on the
corps of the deceased, he recorded the details of the injuries on
the dead-body of the deceased on a separate paper and after
preparation of the post-mortem report, he destroyed that paper.
This part of the conduct of PW 10 Dr. Raja Ram Sharma is very
important and on the basis of this evidence, the cause of death
of the deceased due to injuries caused on the head by a stone,
cannot be regarded as reliable as the entire post-mortem report
becomes doubtful.
Resultantly, on the basis of the discussions made
here-in-above, we are of the considered view that the conviction
recorded and the sentence awarded by the learned Sessions
D.B. Criminal (Jail) Appeal No.1343/2003
(Bhanwar Singh alias Bhanwariya Vs. State of Rajasthan)
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Judge, Jodhpur against the appellant-accused, vide impugned
judgment and order dated 06.11.2003 passed in Sessions Case
No.72/2003, cannot be sustained and deserve to be quashed
and set aside.
Hence, the impugned judgment and order dated
November 06, 2003 passed by the learned Sessions Judge,
Jodhpur in Sessions Case No. 72/2003, are set aside and
appellant-accused Bhanwar Singh alias Bhanwariya S/o Rewant
Singh Rajput R/o Newara, Police Station, Mathaniya, district
Jodhpur, is acquitted of the charges levelled against him. He is
in jail and be set at liberty if not required in any other case.
(KAILASH CHANDRA JOSHI),J. (GOVIND MATHUR), J.
mcs
