HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 859 / 2017
Joga Ram S/o Shri Teja Ram, By Caste Dewasi, R/o-Village
Ghanerav, Tehsil Desuri, Distt. Pali. (Presently Lodged in Sub Jail,
Bali, Distt. Pali).
—-Appellant
Versus
The State of Rajasthan
—-Respondent
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For Appellant(s) : Mr. Pradeep Shah
For Respondent(s) : Mr. O.P.Rathi, P.P.
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HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order
03/10/2017
The matter is today listed for orders on the application for
S.O.S. filed on behalf of convict appellant Joga Ram.
With the consent of the learned counsel representing the
appellant and the learned P.P., the appeal is being finally decided
today itself.
The instant appeal has been preferred by the appellant Joga
Ram being aggrieved by the judgment dated 30.5.2017 passed by
learned Addl. Sessions Judge, Bali in Sessions Case No. 55/2011
whereby the appellant was convicted and sentenced as below:-
U/s. 498A IPC Two years S.I. and a fine of Rs. 500/-, in default
of payment of fine to further undergo S.I. for one
month.
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U/s. 304B IPC Ten years R.I. with a fine of Rs. 5000/-, in default
of payment of fine to further undergo S.I. for one
year.
The appellant was charge-sheeted for the offence under
Sections 498A and 304 B IPC in the Court of Judicial Magistrate
Desuri. The case was committed to the Court of Addl. Sessions
Judge, Bali for trial. The trial court framed charges against the
accused appellant for these offences. However, on going through
the record and particularly the dying declaration of Smt. Kamla
(the appellant’s wife) recorded by the Magistrate which was
marked as Ex.P-15 during trial, it is apparent that the deceased
clearly stated that on 6.10.2011 she was sleeping in her house.
The appellant came home in the night at about 12.30 P.M. in an
intoxicated condition. He poured kerosene upon her and then set
her to fire. The burns proved fatal and the lady died on
14.10.2011. A prompt F.I.R. was lodged by Bhikha Ram father of
the lady in which a clear allegation was levelled that Joga Ram set
fire to Kamla after pouring kerosene on her. The trial court
proceeded in absolutely mechanical fashion and did not frame
charge under Section 302 IPC despite the fact that clear
ingredients of the said offence were made out against the accused
particularly looking to the allegations levelled in the F.I.R. and the
dying declaration of Smt. Kamla.
In view of the circumstances noticed above, it was
incumbent upon the trial court to have framed charge for the
offence u/s. 302 IPC against the accused and he should have
been tried for the offence of murder as well as for the offence of
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dowry death. The situation of the case at hand is clearly covered
on all fours by the decision of Hon’ble Supreme Court in the case
of Rajbir Singh Vs. State reported in AIR 2010 12 JT -544. It is
relevant to mention here that the trial court, whilst convicting the
appellant for the offence under Section 304 B IPC vide impugned
judgment accepted the dying declaration of the deceased as
recorded by the Magistrate to be a material piece of evidence. A
bare reading of the same clearly indicates that the appellant set
the lady to fire after pouring kerosene upon her. Thus, it was
imperative for the trial court to have tried the accused for the
offence u/s. 302 IPC as well and alternative charge under Section
302 IPC should have been framed against the appellant. Omission
to do so has resulted into grave failure of justice.
Consequently, this Court is of the firm opinion that in order
to secure ends of justice and for ensuring a fair trial, the matter
should be remanded to the trial court for modifying/altering the
charge framed against the accused appellant and to direct denovo
trial against him for the offence under Section 302 IPC in the
alternative for the offence under Section 304 B IPC.
Consequently, the appeal is allowed. The impugned
judgment dated 30.5.2017 is set aside. The matter is remanded to
the trial court for altering the charge framed against the appellant
by framing alternative charge under Section 302 IPC against him.
After altering the charge, the trial court shall conduct denovo
trial expeditiously and as per law. The proceedings of denovo trial
shall be completed preferably within a period of six months from
the date of receipt of copy of this order. Considering the fact that
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the appellant had been granted bail by this Court during trial, the
learned trial court shall enlarge him on bail during the denovo trial
upon bail and personal bonds being furnished to its satisfaction.
Record be returned back forthwith.
(SANDEEP MEHTA)J.
/sushil/