Research › Search › Judgment

Rajasthan High Court · body

2002 DIGILAW 925 (RAJ)

Kailash Narain : Heeralal v. State of Rajasthan

2002-05-03

FATEH CHAND BANSAL, SHIV KUMAR SHARMA

body2002
JUDGMENT 1. - Learned Sessions Judge, Jaipur District Jaipur vide its judgment dated July 24, 1982 rendered in Sessions Case No. 2/1980 convicted and sentenced the accused Heera under Sections 324 IPC to undergo one year rigorous imprisonment and a fine of Rs. 200/- in default of payment of fine, to suffer one month rigorous imprisonment. He was also convicted and sentenced under Section 323 IPC to undergo six months rigorous imprisonment. Both the sentences were directed to run concurrently. Accused Gordhan, Hanuman, Badri, Harinarain, Noora and Ramlal were convicted and sentenced under Section 323 IPC to undergo six months rigorous imprisonment. The other accused persons namely; Manohar Singh, Chandra Bhan, Chandra Mohan, Prem Chand, Purushottam were acquitted of the charges under Sections 147,148,302,323,234,302/149,323/324/149 Indian Penal Code Accused Heera was also acquitted of the charges under Section 147,138,302,323/324/149 and other accused persons namely; Shravan Singh, Bhanwarlal, Mohan Lal, Hari Sharan, Mittu Khari, Kanhaiyalal, Arjun Singh, Mohan Lal son of Narain Lal, Yadram, Shivdayal, Khemchand, Shrinarain, Nandkishor, Suresh Kumar were also, acquitted of the charges under Section 147,148,302/149,323/324/149,323,324 IPC and Gordhan Hanuman, Badri Narain, Harinarain, Noora, Ramlal were also acquitted of the charges under sections 147,148,302/149,323/324/149 and 323 Indian Penal Code. 2. The complainant Kailash Narain assailed the impugned finding by filing a instant Cr. Revision Petition. This Court vide order dated April 6, 1983 maintained the acquittal of Bhanwarlal, Mithukhan, Arjun Singh, Yad Ram, Shiv Dayal, Khem Chand, Shri Narayan and Nand Kishore and notices were issued in so far as accused Manohar Singh, Chandra Bhan Katara, Chandra Mohan Katara, Premchand Khati, Purushottam, Heeralal, Sravan Singh, Ramlal, Mohanlal, Harisharan, Hanuman Prasad, Kanhaiyalal, Mohan Lal son of Narain Lal, Hari Narayan, Noor Mohammad, Badri Narayan, Gordhan and Suresh Kumar. 3. The accused persons namely; Heeralal, Ramlal, Hanuman Prasad, Harinarain, Noor Mohd. Badri Narain and Gordhan preferred the instant appeal assailing their conviction under Sections 324 and 323 Indian Penal Code Accused Heera died in October, 1995 and during the pendency of appeal his death certificate has been filed, therefore, the proceedings against accused Heeralal stood abated. 4. The complainant Kailash Narain instituted a report with the Police Station, Phuiera with regard to incident on October 7, 1979 in which one person Pramod Kumar was killed and 7 other person sustained injuries completion investigation, incharge- sheet was Lald and the case was committed to the learned Sessions' Judge, Jaipur District, Jaipur. 4. The complainant Kailash Narain instituted a report with the Police Station, Phuiera with regard to incident on October 7, 1979 in which one person Pramod Kumar was killed and 7 other person sustained injuries completion investigation, incharge- sheet was Lald and the case was committed to the learned Sessions' Judge, Jaipur District, Jaipur. Charges against the accused persons as afore- quoted Sections were framed. The accused denied the charges and Claimed to be tried. 5. In support of its case the prosecution examined as many as 33 witness thereafter, in the statements recorded under Sections 313 Cr.PC. the accused Claimed innocence. One witness in defence was examined. The learned trial Judge after hearing the find submissions, passed the impugned judgment. 6. We have heard the rival submissions and scanned the material on record. 7. Learned counsel for the complainant drew our attention to the dying declaration of deceased Pramod Kumar (Ex.P.29) alleged to have been recorded at 11.50 a.m. on October 8, 1995 by Executive Magistrate, Smt. Pramila Surna. On a cautious scrutiny of the dying declaration, we find that although the medical opinion in regard to the fitness of Pramod Kumar was obtained but the opinion given by the Doctor was not produced before the learned trial Judge. We also find that the deceased Pramod Kumar although was able to put his signature but a note was appended at the end of his statement to the fact that he was unable to sign and his thumb impression was obtained. It appears that after recording the statement of deceased Pramod Kumar, medical opinion in regard to his fitness was obtained. In the said statement deceased Pramod Kumar deposed that one person in the crowd inflicted a blow on his head with the Hocky stick. He did not know his name and after sustained the injury he became unconscious and fell down. Immediately after this deposition deceased Pramod Kumar had stated that many person inflicted lathi blows on his person and their names were Chandra Mohan, Heeralal Saini. 8. We have also examined the injury report (Ex.R 12) of deceased Pramod Kumar. According to which the deceased Pramod Kumar sustained three incised wounds. The learned trial Judge, gave a categorical finding after discussing the prosecution evidence that the prosecution could not establish the charges against the accused person beyond reasonable doubt. 8. We have also examined the injury report (Ex.R 12) of deceased Pramod Kumar. According to which the deceased Pramod Kumar sustained three incised wounds. The learned trial Judge, gave a categorical finding after discussing the prosecution evidence that the prosecution could not establish the charges against the accused person beyond reasonable doubt. We also find that after receiving the injury on his head when Pramod Kumar became un- conscious he could not give the manes of the assailants who caused injuries on his person with lathi. The statement of deceased Pramod Kumar has not been corroborated by medical evidence because as already stated by us that as per his injury report deceased Pramod Kumar sustained injuries caused by sharp edged weapon. Tenderness was found on the person of deceased Pramod Kumar but it was not on his head and creates doubt about the involvement of the accused persons. 9. Learned counsel for the complainant canvassed that incised wounds could be caused by Hocky stick therefore, the dying declaration of deceased Pramod Kumar ought to have been relied upon by the learned trial Judge. We are not impressed by this submission. It is borne out from the record that about 200 or 300 persons were participated in a procession and there was a fight between the two groups therefore, it was not possible for anybody to see as to who caused injuries on the person of the deceased Pramod Kumar. 10. It is not necessary for us to discuss the entire prosecution evidence as we are satisfied that the prosecution has failed to establish beyond reasonable doubt as to who were the assailants who caused injuries with sharp edged weapon on the person of Pramod Kumar. 11. That take such to the instant appeal filed by the accused persons namely; Ramlal, Hanuman Prasad, Hari Narain, Noor Mohd., Badri Narain and Gordhan who were convicted under Section 323 IPC for causing injuries to Ramjeevan PW23 and Kishanlal PW28. 12. A look of the impugned judgment demonstrates that the witnesses Ramjeevan PW23 and Kishanlal PW28 were not relied upon by the learned trial Judge, qua the other accused persons. In the first information report also no specific part was assigned to these appellants. In the FIR as many as 52 persons were named whereas in the charge- sheet was filed against only 26 persons. In the first information report also no specific part was assigned to these appellants. In the FIR as many as 52 persons were named whereas in the charge- sheet was filed against only 26 persons. We have carefully perused the statements of Ramjeevan PW23 and Kishanlal PW28. We find unable ourselves to place reliance on their statements as in the crowd of about 250 persons it was not possible to assign any specific role to anyone. A look on the injury report shows that Kishanlal PW28 sustained four simple injuries caused by sharp edged weapon whereas in his statement he has attributed these four injuries to 7 persons namely; Noora, Khema, Hanuman, Ramlal, Badri, Heera and Mohan Mali. Similarly, Ramjeevan PW28 attributed injuries to Gordhan, Hanuman, Harinarain and Badri whereas he sustained one bruise and one abrasion as per his injury report, how can four persons could cause three injuries. Their lordships of the Supreme Court in the case of Dinesh Kumar & Anr. v. State of Haryana, JT 2001(10) SC 144 wherein it has been held that in absence of corroboration by medical evidence, it is not possible to find exact number of assailants. 13. Thus, we find that the prosecution witnesses namely; Ramjeevan PW23 and Kishanlal PW28 are not wholly reliable witnesses and the learned trial Judge, committed illegality in conviction the accused Gordhan, Hanuman, Badri, Harinarain, Noora, Ramlal under Section 323 Indian Penal Code. 14. In view of what we have discussed hereinabove, we allow the appeal filed by the appellants Ramlal, Hanuman Prasad, Hari Narain, Noor Mohd. Badri Narain and Gordhan and set- aside their conviction under Section 323 IPC and they stand acquitted of the charge. They are on bail and they need not surrender. Their bail bondis stand discharged. 15. The Cr. Revision Petition filed by the complainant Kailash Narain, stands dismissed.Appeal allowed/Revision, dismissed. *******