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2006 DIGILAW 1160 (RAJ)

Shankariya v. State of Rajasthan

2006-04-12

R.C.GANDHI

body2006
JUDGMENT 1. - This Criminal Appeal under Section 374(2) Cr.PC. has been directed against the judgment and order dated 14.12.1987 passed by the learned Sessions Judge, Sri Ganganagar in Sessions Case No. 19/87 whereby he has convicted and sentenced the appellants for commission of offence u/s 326/34 IPC to undergo two years' Rigorous imprisonment and a fine of Rs. 50/-, in default whereof, to undergo further Rigorous imprisonment of 15 days. 2. The prosecution story in brief is that on 20.6.1986 at 8.30 p.m. Balbir Singh s/o Pahalwan Singh aged 25 years, r/o Odki alongwith his brother Pappi appeared in the Police Station and reported orally that Shankariya and Moola Ram both the appellants have enmity with their uncle Bhagwan Singh. Today, I went to the field to call my brother Pappi who had gone to his field and while I was coming back with my brother, reached near the house of Maachhi Ram, both the appellants have enmity with their uncle Bhagwan Singh. Today, I went to the field to call my brother Pappi who had gone to his field and while I was coming back with my brother, reached near the house of Maachhi Ram, both the appellants appeared there and attacked with "Kripans" with criminal intention to kill him. They inflicted 4-5 injuries on his head and both hands. Due to the injury on the mouth, one teeth is broken. The injuries started oozing blood and he fell down on the ground. Thereafter, on being challenged by Bhagwan Singh and Pappi, the appellants ran away from the place of occurrence. 3. Upon this complaint, F.I.R. No. 54/86 was registered and investigation commenced. The Investigating Officer prepared the Site Plan which has been exhibited as Ex.P/12. The appellants were arrested on 2.7.1986. The appellants made their Disclosure Statement with regard to the weapon of offence which have been exhibited as Ex. P/16 and P/17. Upon the Disclosure Statements of the appellants, weapons of offence i.e. "Kripans" were recovered and Recovery Memos have been exhibited at Ex. P/10 and P/11. The challan was presented in the trial Court against the appellants. They pleaded not guilty to the charge and were put to trial. During trial, the prosecution led the evidence to prove the guilt against the appellants. The statements of the appellants have been recorded u/s 313 Cr.PC. P/10 and P/11. The challan was presented in the trial Court against the appellants. They pleaded not guilty to the charge and were put to trial. During trial, the prosecution led the evidence to prove the guilt against the appellants. The statements of the appellants have been recorded u/s 313 Cr.PC. The learned trial Court after appreciation of the evidence and having satisfied that injury no.2 i.e. Fracture to the left index finger has been caused by the sharp edged weapon by the appellants, awarded the impugned conviction and sentence. 4. The judgment of the trial Court has been challenged by the appellants on the ground that the trial court has not legally appreciated the evidence and the prosecution failed to connect the weapon of offence with the injuries caused on the body of the complainant Balbir Singh. The place of occurrence has also not been established being disputed by the complainant and the witnesses of the prosecution. The weapon of offence has not been sent to the Forensic Science Laboratory for examination to test the veracity of the weapon as to whether that weapon was used for causing injuries to Balbir Singh and that it is found blood stained. It is also stated that the prosecution has not accepted the version of the complainant with regard to the place of occurrence. Not only this, the prosecution has also not correctly investigated the occurrence as reported in the F.I.R. and has suppressed the genesis of the crime. It is also one of the grounds that the version by the complainant itself is not believable as he has reported in the F.I.R. that his teeth has also been broken which has not come true as neither police nor the doctor has pointed out such injury. 5. Heard learned counsel for the parties and perused the record. 6. To appreciate the argument of the learned counsel for the appellants so far as breaking of the teeth is concerned, on perusal of the record, it is seen that the complainant has specifically stated in the F.I.R. that, because of the injury caused by the accused-appellants with "Kripan", his teeth has been broken, P.W.6 Dr. Rajendra Kumar Gupta has examined him on the same day. No such injury or breaking of teeth was noticed by the doctor. It shows that the complainant has wrongly stated with regard to the injury to his teeth. 7. Rajendra Kumar Gupta has examined him on the same day. No such injury or breaking of teeth was noticed by the doctor. It shows that the complainant has wrongly stated with regard to the injury to his teeth. 7. The next argument of the learned counsel for the appellants is that the prosecution has recovered the weapon of offence on the alleged disclosure statement of the accused-appellants but the prosecution has failed to connect this weapon of offence with the commission of crime. 8. On perusal of the record, it is seen that appellant Shankariya in his disclosure statement has stated that the weapon of offence by which he has inflicted injuries to the complainant Balbir Singh is lying beneath the cot in the drawing room of his house. Accused Moola Ram in his disclosure statement (Ex. P/17) has disclosed that he has kept the weapon of offence behind the box lying in his house. The Investigating Officer has recovered the weapons of offence and the witnesses to the Recovery Memo are P.W. 7 Gurjant Singh, P.W. 2 Ajayab Singh and Mohanlal, constable. 9. Mohanlal, a police constable has not been examined by the prosecution. He is a witness to the disclosure statement also. P.W. 7 Gurjant Singh has stated in his statement that no weapon was recovered in his presence from either of the appellants i.e. Shankariya or Moola Ram. He has not supported the prosecution version. So far as P.W. 2 Ajaib Singh is concerned, he has stated in his statement before the Court that police had gone alongwtih accused Shankariya to his house where his old father inside the house and brought out a "Kripan" and handed it over to the police. This Recovery Memo has also not been proved as projected by the prosecution as the weapon of offence was recovered lying in the house and not from the exclusive possession, or at the instance of the accused. Both these witnesses have not supported the prosecution story. It has been settled by a coordinate bench of this Court in case title " Deva v. State of Rajasthan", reported in 1991 WLN (UC) 229 that where the recovery is not proved, the conviction cannot be regarded. The Court observed as under "In the present case, two motbirs of the alleged recovery namely; Shambhulal and Dayaram, Shambhulal has turned hostile while Dayaram was not examined. The Court observed as under "In the present case, two motbirs of the alleged recovery namely; Shambhulal and Dayaram, Shambhulal has turned hostile while Dayaram was not examined. In Kasim Ali's case (supra), the view has been taken that motbir witnesses have turned hostile, therefore, the recovery cannot be held to be proved by the prosecution solely on the testimony of Investigating Officer, the conviction is liable to be set aside. Considering the view taken by their Lordships of the Supreme Court in Daulatram's case (supra) and the view taken by this Court in respect of the recovery, where the motbirs have turned hostile. In such circumstances, the conviction is not justified." 10. Furthermore, the prosecution has not taken any trouble to send these weapons to the Forensic Science Laboratory to test the veracity and to connect them with the commission of the offence. The prosecution has projected that 9 injuries have been inflicted by the accused to the complainant. These injuries have been examined by PW 6 Dr. Rajendra Kumar, who has stated in his statement that injury no.2 i.e. Fracture on the left index finger is grievous. The prosecution was legally under obligation to get this weapon of offence examined with a view to get the opinion of the F.S.L. so that the weapon of offence is connected with the commission of offence. This lapse damages the case of the prosecution. 11. Another argument of the learned counsel for the appellants is that the place of occurrence has not been proved by the prosecution. To appreciate this argument, it is seen from the record that in the FIR the injured has stated that at about 7.15 p.m. when they reached near the house of Maachhi Ram, both the accused attacked and inflicted injuries. Perusal of Site Plan-Ex. P/12 reveals that the occurrence has been shown as taken place at "A" which is the street in between the houses of Roshanlal and Desraj. The house of Maachhi Ram according to Site Plan is far away from there. It is also stated by the complainant in his statement before the Court that when he reached in front of the shop of Roshan Lal, the accused attacked and inflicted injuries. The Site Plan does not disclose any shop belonging to Roshan Lal. The house of Maachhi Ram according to Site Plan is far away from there. It is also stated by the complainant in his statement before the Court that when he reached in front of the shop of Roshan Lal, the accused attacked and inflicted injuries. The Site Plan does not disclose any shop belonging to Roshan Lal. There is a difference in the statement made before the Court and in the F.I.R. lodged by the injured with regard to the place of occurrence. The Investigating Officer has not clarified this position as to whether the version of the complainant was correct and under such circumstances, it appears that the prosecution has suppressed the genesis of the occurrence. 12. On totality of the circumstances and the evidence led by the prosecution, I feel, it is not a case which can be said to be established by the prosecution beyond shadow of doubt. The prosecution has failed to connect the weapon of offence with the commission of crime and the place of occurrence. The dispute with regard to the place of occurrence itself goes to the root of the prosecution story to dis-lodge the edifice of the prosecution story and make it dis-credit-worthy. On appreciation of the evidence and other record, I find that the accused-appellants deserve the benefit of doubt. The judgment under appeal is accordingly set aside and the appellants are acquitted of the charge. The ball bonds are discharged.Appeal Allowed - Conviction Set Aside. *******