Research › Search › Judgment

Rajasthan High Court · body

2004 DIGILAW 426 (RAJ)

Changej Khan @ Juned Khan v. State of Rajasthan

2004-03-18

H.R.PANWAR

body2004
JUDGMENT 1. - This criminal appeal under Section 374(2) Cr.RC. is directed against the judgment and order dated 4.1.2003 passed by Additional Sessions Judge (Fast Track) No. 1, Banswara, (for short "the trial court" hereinafter) in Sessions Case No. 111/2002, whereby the trial court acquitted the accused respondent for the offences under Sections 323, 307 IPC, however, the accused respondent was found guilty for the offence punishable under Section 325 IPC and accordingly he was convicted. Instead of passing the sentence of imprisonment the trial court extended the benefit of Section 4 of the Probation of Offenders Act, 1958 and directed the respondent to file the bail bonds in a sum of Rs. 10,000/- for maintaining peace, tranquillity and good behaviour for a period of six months. The trial court also awarded compensation of Rs. 5,000/- under Section 5(1)(A) of the Probation of Offenders Act in favour of injured complainant. Aggrieved by the judgment and order of the trial court the appellant has filed the instant appeal. 2. I have heard the learned counsel for the appellant and the learned Public Prosecutor for the State. Perused the judgment and order impugned as also carefully scanned and scrutinised the evidence on record. 3. On 24.2.2001 PW-1 Anil Kumar Vyas lodged FIR Ex.P/1 with the police station Kotwali, Banswara alleging therein that he was assaulted by 5-6 persons near Custom Chauraha, Banswara. In the FIR it is stated that the complainant does not know the names and addresses of the assailants. Police after investigation laid the chalian against the accused respondent for the offences under Sections 323, 325, 307 IPC. The respondent was put to trial. Prosecution examined PW-1 Anil Kumar Vyas, PW-2 Chandresh Vyas, PW-3 Rajenosa Prasad Joshi, PW-4 Rajendra Joshi, PW-5 Mukesh Joshi, PW-6 Dr. Om Prakash Upadhyay, PW-7 Dr. B.S. Shekhawat, PW-8 Bhanwar Singh, Investigating Officer and produced documents Ex.P/1 to Ex.P/6. The accused made statement under Section 313 Cr.PC. and denied the occurrence. On appreciation of evidence the trial court came to the conclusion that the prosecution has failed to prove the case against the accused appellant for the offences under Sections 323 and 307 IPC. However, the accused respondent was found guilty for the offence under Section 325 IPC and was convicted as noticed above. 4. and denied the occurrence. On appreciation of evidence the trial court came to the conclusion that the prosecution has failed to prove the case against the accused appellant for the offences under Sections 323 and 307 IPC. However, the accused respondent was found guilty for the offence under Section 325 IPC and was convicted as noticed above. 4. PW-1 Anil Kumar Vyas stated in his statement before the court that at the time of occurrence he was not knowing the names and addresses of the assailants. He further admitted that he was assaulted by 5-6 persons. Names of those 5-6 persons have also not been disclosed. He further stated that he was assaulted by 3-4 persons on his chest by fists and kicks. He further stated that he does not know personally the accused persons and he did not name the accused appellant in the FIR because he was confused. PW-1 Anil Kumar Vyas is a literate and by profession is an Engineer. In the statement he further stated that at the time of lodging of report it was not clear that out of three persons who had assaulted him and, therefore, he did not name the accused in the FIR to the police. 5. PW-2 Chandresh Vyas stated that there was a crowd near to Kalhar shop and some persons were grappling with each other. He further stated that Anilji and 2-3 persons were grappling with each other and in that process Anilji suffered injuries on his face. In cross examination he clearly stated that he does not know who assaulted to whom as the place of occurrence was main road. Before the occurrence he had no occasion to know the accused. He further stated that nobody has disclosed the name of the accused. Not only that this witness further says that he does (did) not know the name of the accused even the day when he made statement in the court. He did not disclose the number of injuries suffered by PW-1 Anil Kumar Vyas as he did not see the injuries. The statements of PW-1 and PW-2 were recorded by the police after about 12-14 days of the occurrence. 6. PW-3 Rajendra Prasad Joshi stated that somebody was assaulting Anilji. He does not know the name of the accused. He did not disclose the number of injuries suffered by PW-1 Anil Kumar Vyas as he did not see the injuries. The statements of PW-1 and PW-2 were recorded by the police after about 12-14 days of the occurrence. 6. PW-3 Rajendra Prasad Joshi stated that somebody was assaulting Anilji. He does not know the name of the accused. He further stated that there were 4-5 persons who assaulted PW-1 and he does not know any of them. His statement too was recorded by the police under Section 161 Cr.PC. after about 10-14 days of the occurrence. 7. PW-4 Rajendra Joshi and PW-5 Mukesh Joshi are the witnesses to the site map. 8. PW-6 Dr. Om Prakash Upadhyay examined PW-1 Anil Kumar Vyas injured and noticed two injuries viz contusion 4x3 cms on right side face and contusion 4 X 2 1/2 cms on left side chest, both by blunt. On being examined by radiologist the radiologist was of the opinion that there was a fracture of mandible. Thus the injury No. 1 was grievous by blunt. 9. PW-8 Bhanwar Singh the Investigating Officer stated that in the FIR the accused was not named. He further stated that even the eye witnesses did not name the accused. From his investigation it was not clear who were other persons alongwith accused appellant at the time of commission of crime. 10. From the statement of the prosecution witnesses, as discussed above, it is more than clear that at the time of occurrence there were 5-6 persons who assaulted PW-1 Anil Kumar Vyas. None of them was named in the FIR. Not only this the alleged two eye witnesses PW-2 and PW-3 also did not know the names of accused and even they did not know that out of 5-6 persons who actually assaulted. The accused, as is evident from the statement of injured PW-1 as also PW-2 and PW-3, was not known prior to the date of occurrence or at the time of occurrence and even subsequently also they did not know him. PW-1 himself stated that he was confused as to who assaulted him. There is no evidence on record satisfying that the present appellant is the sole responsible person for assaulting PW- 1. From the evidence it appears that there was a crowd near Custom Chauraha and the persons were grappling with each other. PW-1 himself stated that he was confused as to who assaulted him. There is no evidence on record satisfying that the present appellant is the sole responsible person for assaulting PW- 1. From the evidence it appears that there was a crowd near Custom Chauraha and the persons were grappling with each other. There is no specific evidence suggesting that it was the accused respondent who inflicted the injury to the complainant. No test identification parade was conducted. Even from the record nothing is suggested as to how the accused has been named in the case. Even the Investigating Officer did not say how the name of accused appeared in the case. The owner of the tempo was neither produced as a witness nor any inquiry or investigation has been made from the owner or anybody else as to who was the driver of auto rickshaw of which number is mentioned in the FIR. The case as it appears from the evidence on record appears to be suspicious so far as accused appellant is concerned, though from the medical evidence it is established that PW-1 suffered injuries, but at whose hands, has not been established beyond reasonable doubt. In this view of the matter the finding of the trial court holding the appellant guilty for the offence under Section 325 IPC as also the conviction for the said offence cannot be sustained and is liable to be set aside. 11. Consequently, this appeal is allowed. The judgment and order dated 4.1.2003 passed by Additional Sessions Judge (Fast Track), Banswara in Sessions Case No. 111/2002 is hereby set aside. The conviction of the appellant is set aside and he is acquitted of the offence under Section 325 IPC. Any amount of compensation awarded by the trial court, if deposited by the appellant be refunded to him forthwith.Appeal allowed. *******