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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Sandeep Mehta, Kuldeep Mathur, JJ.
Bheekha Bharti, S/o. Dhanna Bharti Gusain (Since deceased - Appeal abated vide order dated 23.01.2020) - Appellants
Versus
State of Rajasthan - Respondent
D.B. Criminal Appeal No. 460 Of 1988 With D.B. Criminal Appeal No. 134 Of 1989
Decided On : 14-11-2022
Dying Declaration - Assault on Kirtaram - 302 IPC, 325 IPC, 342 IPC - The court examined the dying declaration, evidence of eye-witnesses, and medical reports to determine the involvement of the accused in the assault. The dying declaration was found to be doubtful due to discrepancies in the timing and the victim's condition. The court also noted contradictions in the evidence of the eye-witnesses and found an attempt of over-implication of the accused. The acquittal of the accused from the charges under Section 302/34 IPC was upheld, while the conviction for causing simple injuries was maintained.
Fact of the Case:
The deceased, Kirtaram, was assaulted by the accused Bheekha, Jassa, and Somar Bharti, leading to his death. The prosecution alleged that the accused obstructed the approach way to the deceased's house due to land disputes and prior enmity. The dying declaration, evidence of eye-witnesses, and medical reports were presented to establish the involvement of the accused in the assault.
Finding of the Court:
The court found the dying declaration to be doubtful and noted contradictions in the evidence of the eye-witnesses. It concluded that there was an attempt of over-implication of the accused. The acquittal of the accused from the charges under Section 302/34 IPC was upheld, while the conviction for causing simple injuries was maintained.
Issues: The key issues revolved around the credibility of the dying declaration, the evidence of the eye-witnesses, and the medical reports. The court had to determine the involvement of the accused in the assault on the deceased.
Ratio Decidendi: The court applied the principle that where two views are possible on the basis of evidence available on record, the appellate court should be slow in interfering with the finding of acquittal recorded by the trial court after appreciation of evidence. It also emphasized the need for unimpeachable evidence to establish the guilt of the accused.
Final Decision: The court upheld the acquittal of the accused from the charges under Section 302/34 IPC and reduced the substantive sentence of three months awarded to the accused for causing simple injuries to the period already undergone by them.
JUDGMENT :
(Sandeep Mehta, J.)
1. These two appeals are directed against the judgment dated 26.11.1988 passed by the learned Additional Sessions Judge, Nagaur in Sessions Case No.57/1987, whereby the appellants herein were convicted and sentenced as below :
| S. No. | Name of the appellant | Offence for which convicted | Sentence, fine and default sentence awarded |
| 1. | Bheekha Bharti (Since deceased) (Appeal abated vide order dated 23.01.2020) | Section 302 IPC | Life imprisonment alongwith a fine of Rs.100/- and in default of payment of fine, additional simple imprisonment of one month |
| Section 325 IPC | Seven years’ rigorous imprisonment | ||
| Section 342 IPC | One month’s rigorous imprisonment | ||
| 2. | Somar Bharti | Section 323/34 IPC | Three months’ simple imprisonment alongwith a fine of Rs.100 and in default of payment of fine, additional simple imprisonment of seven days’ |
| 3. | Jassa Bharti | ||
| 4. | Bhanwar Bharti |
2. Somar Bharti Section 323/34 IPC Three months’ simple imprisonment alongwith a fine of Rs.100 and in default of payment of fine, additional simple imprisonment of seven days’
3. Jassa Bharti
4. Bhanwar Bharti
2. While the appellants in Appeal No.460/1988 have challenged the judgment whereby they have been convicted and sentenced by the trial court, the State of Rajasthan has filed the Appeal No.134/1989 for assailing the acquittal of the accused Jassa Bharti, Bhanwar Bharti and Somar Bharti from the offences punishable under Sections 302/34, 325/34 and 342 IPC.
3. It may be stated here that the accused Bheekha Bharti, who was convicted for the offence punishable under Section 302 IPC simplicitor amongst others and was sentenced to life imprisonment on the said count, expired during pendency of the appeal and hence, Appeal No.460/1988 was dismissed as having abated to his extent.
4. Briefly stated, facts of the prosecution case are as below :
The houses of Ramdev, son of the deceased Kirtaram) and the accused Bheekha are located nearby in the Village Bhadana, Police Station Mundwa, District Nagaur. A complaint under Section 107 CrPC (Ex.P/30) came to be filed by the accused Somar Bharti against Ramdev and Sheraram in the Court of the Executive Magistrate concerned alleging that these persons tried to beat him up on 08.06.1987. Ramdev, in turn also filed a complaint under Section 107 CrPC against Bheekha Bharti, Somar Bharti, Jassa Bharti and Bhanwaru Bharti alleging that these persons indulged in violence with him on 09.06.1987. Proceeding further, on 10.06.1987, Ramdev lodged a complaint in the Court of the Executive Magistrate concerned under Section 133 CrPC alleging that Bheekha, Jassa and Somar Bharti had obstructed the approach way to his house. The complaint was registered and the Magistrate issued notices to Bheekha Bharti, Jassa Bharti and Somar Bharti directing them to remove the obstruction or to appear in the court on 20.06.1987 and show cause as to why such a direction may not be issued. Thus, the backdrop of the incident is that the land disputes and prior enmity prevailed between the parties.
5. The prosecution has come out with a case that Kirtaram left his house on 23.06.1987 in the evening carrying with him, jaggery and Rotis for feeding the bulls. No sooner had Kirtaram moved out of his house, Bheekha, Jassa and Somar Bharti launched an attack upon him. Kirta’s granddaughter Shanti noticed that her grandfather was being assaulted, on which, she cried out and called her mother Singari for help. Shanti, Singari and Singari’s nephew Devaram, who was visiting the house of Ramdev, rushed to save Kirtaram and saw that he was being assaulted by the above-mentioned accused persons. It is alleged that Bheekha inflicted a blow from the reverse side of a Kassi on the head of Kirtaram, due to which, he fell down. Accused Bhanwaru also came there with a Kassi. All four offenders a
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