State Of Rajasthan v. Babu Ram

1. The instant cr. Leave to appeal has been filed by the State of Rajasthan under Section 378(iii) and (i) of Cr.P.C against the judgment dated 27.1.2016 passed by the learned Addl. Sessions Judge NO. 1, Abu Road, Sirohi in Sessions Case No. 56/2013 to the extent of acquittal of the respondent for the offence under Section 302 IPC and to punish the respondent only for offence under Section 304 Part II IPC with sentence of 5 years RI alongwith fine of Rs. 20,000/-.

2. As per the brief facts of the case Smt. Chunni W/o Sh. Chandu filed written complaint on 6.8.2013 before the SHO Police Station Abu Road Sadar alleging therein that yesterday her husband went at Ambabari. When he was returning back to the home, at that time, about 6.00 pm Babu and Gowa made attack with intention to kill him and due to injuries caused by Lathis, her husband raised voice, at that time, her younger son Daya, pani and Santi went there and saw that her husband was lying on floor and respondent ran away. According to the complainant she carried her husband at home with help of Dinesh, at that time, her husband narrated accused persons with intention to kill him gave serious beatings. Due to said incident, injuries were sustained on head and the husband of the complainant died at 1.00 am in the night.

3. Upon aforesaid complaint, FIR no. 247/2013 under Section 341, 302/34 IPC was registered and after investigation, police filed charge-sheet under Section 302/34 and 341 IPC against respondent Babu Ram only. The learned trial court framed charge under Section 341 and 302 IPC against the respondent. The learned trial court after recording statement of 19 prosecution witnesses recorded the statement of the respondent under Section 313 Cr.P.C and finally convicted the respondent for offence under Section 304 Part II IPC vide judgment dated 27.1.2016 and passed the aforesaid sentence.

4. The State of Rajasthan preferred this cr. Leave to appeal only to challenge the conviction for offence under Section 304 Part II IPC instead of offence under Section 302 IPC.

5. Learned Public Prosecutor vehemently argued that as per the evidence on record prosecution proved its case for committing offence under Section 302 IPC by the respondent but without appreciating the testimony of witnesses, the learned trial court convicted the respondent only for offence under Section 304 Part II IPC, therefore, the finding of the learned trial court suffers from patent illegality. It is also argued that as per post mortem report (Ex.P/11) deceased died due to the injury upon the temporal bone and as per the opinion of the doctor the said injury was cause of death. Therefore, the learned trial court ought to have consider this aspect of the matter to convict the respondent for offence under Section 302 IPC.

6. After hearing the learned Public Prosecutor we have perused the judgment impugned. The learned trial court in para no. 25of the judgment while assessing the entire evidence held that occurrence took place all of sudden and the allegation of prosecution is for inflicting only one injury, that too, is bruise, so also, three witnesses PW—5 Chunni, PW—6 Ponari and PW— 9 Smt. Santi are the eye witnesses, but there is no evidence of motive on record. Therefore, the learned trial court held that prosecution has failed to prove its case for committing offence under Section 302 IPC.

7. After perusing the finding given by the learned trial court, we are of the opinion that it is not a fit case to grant leave to appeal.

8. Therefore, this cr. Leave to appeal is hereby dismissed. However, it is made clear that any observation made in this cr. Leave to appeal will not affect the merit of S.B Cr. Appeal No. 185/2016 (Babu Ram v. State of Rajasthan) in which the respondent has challenged the judgment impugned dated 27.1.2016