IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Gopal Lal Versus State of Rajasthan D.B. CRIMINAL APPEAL NO. 151/2004 Date of Judgment : 28.05.2010 PRESENT HON'BLE MR. JUSTICE GOVIND MATHUR HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Shaitan Singh ] Mr. Bhagat Dadhich ] for the appellant Mr. A.R. Nikub – Public Prosecutor Mr. Ranjeet Joshi for the complainant BY THE COURT (Per Hon'ble Joshi, J.) This criminal appeal preferred by appellant Gopal Lal S/o Bheru Lal, by caste Pareek, resident of Gegas, Police Station Mandal (Bhilwara) is directed against the judgment and sentence dated 27.01.2004 passed by the Additional District and Sessions Judge (Fast Track) No. 1, Bhilwara in Sessions Case No. 154/2003. The brief facts of the case are that on 09.01.2003 at 12.05 p.m. information was received by Pramod Sharma (P.W.20), Station House Officer, Police Station Mandal, regarding suspicious death of Bherulal S/o Chhoga Pareek. Page 1 of 9 After receiving the above information, P.W.20 Pramod Sharma went to Village Gegas where accused appellant Gopal S/o Bherulal presented a written report stating therein that in the evening of 08.01.2003 at about 4-5 p.m. his father Bherulal brought two oxen from 'Bada' to 'Gawadi'. At that time both the oxen started fighting with each other and his father intervened to stop them and during that he sustained injuries including the head injury. In the night his father slept at the residence and in the morning at about 5 a.m. he found that his father was dead. On the basis of the aforesaid report, proceedings under Section 174 of the Code of Criminal Procedure (for short, hereinafter referred to as 'CrPC') were initiated and registered as No. 1/2003. Autopsy of the body of the deceased was conducted and after receiving the postmortem report, it was found by the Station House Officer Pramod Sharma (P.W.20) that there was dispute between the deceased Bherulal and his wife Sohani regarding the property of the deceased. It further came to the knowledge of the Station House Officer that on the date of the incident, i.e. on 08.01.2003, a quarrel took place between the deceased Bherulal and the accused appellant Gopal and the accused appellant Gopal caused injuries to Bherulal with the intention Page 2 of 9 to kill him and due to those injuries, deceased Bherulal died. On this information, the Station House Officer Pramod Sharma (P.W.20) registered a First Information Report bearing No. 8/2003 under Section 302 of the Indian Penal Code (for short, hereinafter referred to as 'IPC') against the accused appellant Gopal Lal and commenced investigation. During the course of investigation, accused appellant Gopal Lal was arrested and in pursuance of the information given by the accused appellant under Section 27 of the Indian Evidence Act (Ex.25), by memo Ex.P18, a stick was recovered. Statements of the witnesses were recorded under Section 161 CrPC and after usual investigation, charge- sheet was presented against the accused appellant Gopal Lal in the competent Court. The accused appellant was charged under Section 302 IPC. Statements of 20 witnesses were recorded from the side of prosecution and thereafter statement of the accused under Section 313 CrPC was recorded regarding the adverse evidence advanced against him. After hearing the final arguments, on the basis of the evidence adduced against the accused appellant, by judgment dated 27.01.2004, the learned Additional District and Sessions Judge (Fast Track) Page 3 of 9 No.1, Bhilwara recorded the order of conviction under Section 302 IPC and sentenced the accused appellant for life imprisonment and a fine to the tune of Rs.2000/- and in default of payment of fine, to further undergo 3 months' rigorous imprisonment for the same. The main contention of the learned counsel for the accused appellant is that there is no eye-witness to the occurrence and the learned trial court has convicted the accused appellant on the basis of the fact that the accused appellant Gopal Lal had reason to believe that his father Bherulal might transfer his property to some other person by depriving him and the learned trial court has wrongly recorded it as motive to cause death to the deceased. Further the learned trial court has based the conviction of the accused appellant on the basis of extra judicial confession said to be made by the accused appellant before the witnesses P.W.16 Nanu and P.W.19 Smt. Savitri and also the fact of not providing medical aid to the deceased by the accused appellant after sustaining injuries. Further the case of the prosecution rest upon the so-called oral dying declaration said to be made before P.W.12 Savar Mal and P.W.13 Mohan. It is urged by the learned counsel for the appellant that the evidence adduced by the prosecution during the course of trial, is very weak type Page 4 of 9 of evidence and it suffers from inherent contradictions and conviction cannot be based upon such type of evidence. Hence, he urged that the accused appellant Gopal Lal may be acquitted by setting aside the impugned judgment and sentence dated 27.01.2004. While controverting the above contentions, learned Public Prosecutor for the State urged that the conviction recorded and the sentence awarded by the learned trial court is based on substantial evidence and reasonable appreciation of the facts and circumstance of the case and the evidence on record. Hence, no interference is called for in the impugned judgment and sentence. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor for the State and analysed the evidence available on record. A perusal of the judgment of the learned trial court shows that so far as the oral dying declaration made by the deceased before P.W.12 Savar Mal and P.W.13 Mohan is concerned, the learned trial court has recorded its finding that it is entirely unreliable and also disbelieved the presence of Page 5 of 9 P.W.12 Savar Mal and P.W.13 Mohan at the residence of the deceased. So far as the extra judicial confession made by the accused before P.W.16 Smt. Nanu Bai and P.W.19 Smt. Savitri is concerned, it is an admitted fact that P.W.16 Smt. Nanu Bai and P.W.19 Smt. Savitri are real sisters of the deceased and further there is no evidence on record that such extra judicial confession was made soon after the incident because the statements of the aforesaid two witnesses were recorded by police after 4 days of the incident. Further there is no evidence that the accused appellant reposed utmost faith on these two witnesses or expected some benefit by making such statement. It is well-settled position of law that extra judicial confession is made by an accused before a person under the above narrated circumstances. One other important evidence against the accused appellant could be of P.W.4 Smt. Sohan Devi, who happens to be the wife of the deceased Bherulal, but she did not uttered any evidence against the accused appellant and was declared hostile in the trial court. The learned trial court also appreciated the evidence of this witness and found that she could be the best witness of crime, but she did not Page 6 of 9 corroborate the story of the prosecution. Another evidence which was believed by the learned trial court is regarding the recovery of stick ('Bans') in pursuance to the information given by the accused appellant under Section 27 of the Evidence Act. We have perused the recovery memo Ex.P.18. As per Ex.P.18, recovery memo, this stick ('Bans') was not found blood-stained, therefore, in our view it cannot be a ground for recording the conviction of the accused appellant for the offence charged. The learned trial court also took presumption of the fact that presence of P.W.4 Smt. Sohan Devi at the residence of the deceased was well-established, still she has shown her ignorance about the incident, but in our view the presumption so drawn by the learned trial court is contrary to the well-established principle of law that such presumption cannot be drawn simply for the reason that witness was present on the place of occurrence, specifically when in the present case this witness Smt. Sohan Devi (P.W.4) has not uttered any evidence regarding the incident. The pendency of litigation between the deceased and the accused in itself is no substantial evidence for Page 7 of 9 presuming the fact that the accused appellant has caused death of the deceased. The motive in itself is not sufficient to establish the guilt of the accused. The learned trial court has also drawn presumption against the accused appellant for the reason that the accused appellant did not try to provide medical aid to the deceased, but in our view, this fact itself cannot be a ground for drawing any presumption regarding the alleged crime. The learned trial court also discussed the fact that the information as given by the accused appellant to the SHO Pramod Sharma (P.W.20) regarding fighting of oxen in the 'Gawadi' was found to be false, therefore, this circumstance was also presumed against him. In this regard, we are of the considered opinion that the presumption so drawn by the learned trial court against the accused appellant is also not based on any reliable evidence available on record. On the basis of discussion made hereinabove, we are of the opinion that the evidence as adduced by the prosecution against the accused appellant is not sufficient to sustain recording of conviction under Section 302 IPC and sentence awarded by the learned trial court and the presumption drawn regarding the commission of offence by the accused appellant is not based on reliable evidence, therefore, the impugned judgment and sentence cannot be Page 8 of 9 sustained and same deserves to be quashed and set aside. In view of above, this appeal is allowed and the impugned judgment and sentence dated 27.01.2004 passed by the learned Additional District and Sessions Judge (Fast Track) No. 1, Bhilwara in Sessions Case No. 154/2003 is hereby quashed and set aside and the appellant Gopal Lal S/o Bheru Lal is acquitted of the charges levelled against him. The appellant is in jail, therefore, he be set at liberty forthwith, if not required in any other case. [KAILASH CHANDRA JOSHI],J. [GOVIND MATHUR],J. Pramod Page 9 of 9