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2004 DIGILAW 1229 (RAJ)

Jug Lal. v. State of Rajasthan

2004-08-27

H.R.PANWAR

body2004
JUDGMENT 1. - The instant criminal appeal has been filed challenging the impugned judgment dated 19.1.1991 passed by the Additional Sessions Judge, Nohar (for short, the trial Court" hereinafter) in Sessions Case No. 53/98, by which the learned trial court convicted accuse-appellants Juglal, Daya Ram and Gaad Singh for the offence under Section 307/34 IPC and sentenced them to three years' rigorous imprisonment with a fine of Rs. 10,000/- each, and in default of payment of the fine further to undergo one year's rigorous imprisonment. The trial court further ordered that in case of recovery of the amount of fine, 75% of the same be given to injured Jai Singh. 2. The facts and circumstances, relevant and necessary for disposal of the appeal, in succinct, are that Hajari Ram father of injured Jai Singh, at about 4.45 AM on 8.8.1988, lodged an oral report with Police Station, Bhirani to the effect at about 6.30 PM on 7.8.88, when his son Jai Singh was going to meet the natural call, the accused-appellants, with an intention to kill, caused Barchhi blows on the head of his son Jai Singh. It was further stated in the report that the incident was witnessed by complainant PW 1 Hajari Ram, his son PW 6 Bal Ram, his daughter-in-law PW 3 Smt. Nawrangi (wife of injured Jai Singh) and PW 8 Sher Singh. The motive behind this incident, as disclosed in the FIR, was that in the election of Ward Members, the complainant party supported Sher Singh and as such accused Juglal, who was also a contesting candidate, started harbouring against them. On this report, police registered the FIR Ex.1 and the investigation ensued. After investigation, the police filed challan. The learned trial court framed charge against the accused-appellants for the offence under Section 307/34 IPC, to which the accused-appellants denied having committed any offence and sought trial. During trial, the prosecution examined 13 witnesses and adduced documentary evidence. The accused-appellants statements under section 313 Cr.PC. were recorded and they denied having committed any offence. After conclusion of the trial, the trial court convicted and sentenced the accused-appellants, as stated at the very out-set. 3. During trial, the prosecution examined 13 witnesses and adduced documentary evidence. The accused-appellants statements under section 313 Cr.PC. were recorded and they denied having committed any offence. After conclusion of the trial, the trial court convicted and sentenced the accused-appellants, as stated at the very out-set. 3. During pendency of the appeal, on 5.8.2004, learned counsel for the appellant submitted Death Certificate of appellant No. 1 Juglal showing that he expired on 17.11.1993, which has not been disputed by the learned Public Prosecutor and as such the appeal filed by appellant Juglal stands abated on account of his death. 4. I have heard learned counsel for the appellants and the learned Public Prosecutor for the State. Perused the impugned judgment and. the record of the case. 5. Admittedly, the incident took place at about 6.30 PM on 7.8.88 and the report Ex.P/6 has been filed at about 4.45 AM on 8.8.88. It has come in the cross-examination of PW 6 Bal Ram, the brother of injured Jai Singh, that his father went to the police station at about 10.00/11.00 PM on 7.8.88 and came with Head Constable Kalu Ram. This suggests that the report lodged at 4.45 AM on 8.8.88 is post-investigation. When the eye witnesses were present on the spot then there was no reason for lodging the report' at such belated stage, particularly when the distance between the place of the occurrence and the police station is only 25 kms. This delay leads to the conclusion that the FIR is post-investigation and the chances of concoction and over-implication cannot be ruled out. 6. Out of the alleged eye witnesses PW 1 Hajari Ram, PW 3 Mst. Naurangi, PW 6 Bal Ram and PW 8, the first three are the father, wife and brother of injured Jai Singh and the last one, viz. PW 8 Sher Singh, is the person, to whom the complainant party allegedly supported in the elections of Ward Member. It is pertinent to note that PW 8 Sher Singh has not supported the prosecution case and has been declared hostile but still the trial court used his evidence for corroboration. PW 8 Sher Singh supported the prosecution case to the extent that he brought the three-wheeler, put injured therein and took him to Bhadra Hospital. Out of remaining eye witnesses, PW 3 Mst. PW 8 Sher Singh supported the prosecution case to the extent that he brought the three-wheeler, put injured therein and took him to Bhadra Hospital. Out of remaining eye witnesses, PW 3 Mst. Naurangi is the wife of injured Jai Singh and her evidence is to the effect that on hearing hue and cries, she came out of her house and saw her husband lying injured. She has not witnessed the incident but her evidence is based on what she heard from his father-in-law and brother-in- law regarding the perpetrators of the crime. 7. Now, remains the evidence of PVV 1 Hajari Ram and PW 6 Bal Ram. They have stated in the statement that at the relevant time of the alleged incident, they were sitting on the Chabutari of Hari Ram; injured Jai Singh went for meeting the natural call; the accused encircled him and first appellant Juglal inflicted Barchhi-blow on the head of injured and successive Barchhi blow was inflicted by appellant Daya Ram on the head of the injured whereupon he fell down and then appellant Gaad Singh also inflicted Barchhi-blow on the head of the injured. The witnesses have stated that PW 1 Hajari lam tried to snatch Barchhi from accused Juglal but failed to do do. PW 6 Ba1 Ram has further stated that he fell on the injured to ward-off the accused-appellants inflicting Barchhi blows when they were sitting on the Chabutary of Hari Ram, which according to the site map Ex.P/2 is situated at a distance of 76 feet from the place of the incident. 8. A close scrutiny of the evidence of these two interested witnesses, being father and brother of the injured, leads to a conclusion that their testimony is not free from doubt. It has come in their evidence that the Barchhis blows were inflicted by the appellants in quick succession. It is highly improbable and unnatural conduct on the part of the accused that they will inflict Barchhi blow one after the another and the blows so inflicted by them would hit the same part and place of the body, i.e. the head. It is highly improbable and unnatural conduct on the part of the accused that they will inflict Barchhi blow one after the another and the blows so inflicted by them would hit the same part and place of the body, i.e. the head. If there was infliction of one Barchhi blow by each accused in quick succession on the same part and place of the body and thereafter no other injury was caused to the injured then how it can be believed that the accused would remain present there till the witnesses reached the spot but will not repeat the blows. Thus, the story of snatching the Barchhi by PW 1 Hajari Ram from accused Juglal and falling of witness PW 6 Balram on the injured in order to ward off further blows, become doubtful. From the close scrutiny of the evidence of these witnesses, it reveals that actually they are not eye witnesses to the occurrence and the authors of the injuries were not known to them. 9. Had the names of authors of the injuries known to the witnesses then the same should have been disclosed by them at the first instance when the matter was reported to the police in the night at about 10.00 or 11.00 when, as per the statement of PW 6 Balram, his father informed the police and Head Constable Kalu Ram came to the spot. The delay in lodging the report suggests that by that time the witnesses were not knowing the names of the assailants and the appellants have been implicated either on account of suspicion or to wreck grievances. The motive behind wrong implication may be political rivalary on account of election of Ward Members.More so, the recoveries of Barchhis cannot be made basis for conviction of the appellants because it has come in evidence that the Barchhis were having no blood-stains and the same were not sent for chemical examination. The Barchhi recovered from accused Juglal was having rust-marks and as such the possibility of wiping out bloodstains also falls to the ground. 10. There is yet another aspect of the matter. Both these eye witnesses, viz., PW 1 Hajari Ram and PW 6 Balram have stated that the first Barchhi blow was inflicted by accused-appellant Juglal and thereafter the other appellants inflicted Barchhi blows on the same part of the head of the injured. 10. There is yet another aspect of the matter. Both these eye witnesses, viz., PW 1 Hajari Ram and PW 6 Balram have stated that the first Barchhi blow was inflicted by accused-appellant Juglal and thereafter the other appellants inflicted Barchhi blows on the same part of the head of the injured. Appellant Juglal was the alleged principal assailant, who is no more now. Appellant Daya Ram is the real brother of deceased appellant Juglal and appellant Gaad Singh is their supporter. Thus, even if the prosecution case is taken as the gospel truth then simultaneously, the chances of over-implication of appellants Daya Ram and Gaad Singh cannot be absolutely ruled out and the prosecution story again becomes doubtful and the benefit of that doubt should go to the appellants. 11. Injured Jai Singh has not been produced in the witness box. Though the witnesses have stated that after sustaining injuries, the injured suffered from paralysis and lost his power of speech but there is no corroboration to this effect by leading medical evidence, nor any such question was suggested to doctor. Non-production of injured also creates a doubt and it is fatal to prosecution case. 12. There is an another aspect of the matter. As per the prosecution case, the incident took place at about 6.30 PM and the injured was taken to hospital at about 11.30 PM. The distance between the place of occurrence and the hospital at Bhadra is nearly 25 kms. There was profused and severe bleedings from the injuries and the injures was unconscious. The story of consumption of no much time for arrangement of a vehicle is unbelievable as the same was very much available in the village. This may lead to the conclusion that the incident took place during some late hours of night. In night, it is highly impossible for witnesses to have seen the occurrence from a distance of 76 feet. This again creates a doubt in the prosecution version and the appellants are entitled for the benefit of that doubt. 13. In the result, the appeal is allowed; the impugned judgment dated 19.1.1991 passed by the learned Additional Sessions Judge, Nohar in Sessions Case No. 53/1988, is set aside and the appellants are acquitted of the offence under Section 307134 IPC. Appellant Juglal has expired and the appeal filed by him stands abated. 13. In the result, the appeal is allowed; the impugned judgment dated 19.1.1991 passed by the learned Additional Sessions Judge, Nohar in Sessions Case No. 53/1988, is set aside and the appellants are acquitted of the offence under Section 307134 IPC. Appellant Juglal has expired and the appeal filed by him stands abated. Appellants Daya Ram and Gaad Singh are on bail and their bail bonds stand discharged.Appeal Allowed - Convicted set aside. *******