Joga Ram vs State on 3 October, 2017

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
__
For Appellant(s) : Mr. Pradeep Shah
For Respondent(s) : Mr. O.P.Rathi, P.P.
__
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/

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