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2010 DIGILAW 1673 (RAJ)

Dinesh Kumar Saini v. State of Rajasthan

2010-09-29

DALIP SINGH, S.S.KOTHARI

body2010
JUDGMENT 1. - This appeal has been preferred by the complainant against the judgment dated 18th March, 2010 passed by the Additional Sessions Judge [Fast Track] Jhalawar in Sessions Case No.31/2009 acquitting the respondent No.2 Ramswaroop S/o Shri Heeralal for the offence under Section 302/34 IPC. 2. The appeal is barred by limitation and as per the report of the registry, there is a delay of 102 days in filing of the appeal. Be that as it may, we have thought it proper to consider the merits of the matter before issuing notice on the application under Section 5 of the Limitation Act, 1963. 3. The facts in brief are that on 06/01/2009 a report was lodged by the appellant Dinesh Kumar alleging that at about 7.30 AM his father accompanied by one Jagdish were coming from the field. When Ghanshyam and Ramswaroop, respondent No.2 herein asked them as to what they were doing in their field. On this some altercation took place and the accused Ghanshyam, is stated to have taken out a knife and Ramswaroop, respondent No.2 herein caught hold the father of appellant from behind and Ghanshyam is stated to have inflicted knife blow on the chest of the father of the appellant. As a result of which injury, the father of the appellant is stated to have succumbed to his death. On the aforesaid report having been lodged, a case under Section 302/34 IPC was registered and the accused Ghanshyam & Ramswaroop tried for the same. The learned trial Court convicted Ghanshyam accepting the prosecution evidence, but acquitted Ramswaroop, respondent No.2 herein for the offence under Section 302/34 IPC. Hence, this appeal. 4. Learned Counsel for the appellant placed before us the relevant material by way of evidence recorded at trial available with him and we have perused the aforesaid material as well as the impugned judgment dated 18/03/2010. We find from the discussion and the reasons given by the learned trial court as stated in Para No.18 of the judgment that the learned trial Court has noted the fact that there are two sets of eye-witnesses one are the interested eye-witness and the relatives of the complainants and other is the independent witness. Primarily the learned trial Court has relied upon the independent witness PW-4 Ramswaroop. Primarily the learned trial Court has relied upon the independent witness PW-4 Ramswaroop. The learned trial Court has given the following reasons: " xokg ih0M0 4 jkeLo:i us viuh ftjg esa dgk fd ;g lgh gS fd tc fxjkZt dh vkSjr fpYykrh gqbZ vk;h rc og rki jgk Fkk vkSj jkeLo:i mlds ?kj esa FkkA ;g lgh gS fd fxjkZt dh vkSjr dh vkokt lqudj gh jkeLo:i mlds ?kj ls vk;k vkSj os ri NksM+dj >xMs+ okyh txg ij x;sA ;g lgh gS fd og rFkk jkeLo:i gkftj vnkyr eqyfte] nksuksa gh fxjkZt dks cpkus ds fy;s x;s FksA ;g lgh gS fd og rFkk jkeLo:i ?kVukLFky ij igqaps blds igys gh fxjkZt ds pkdw yx pqdk FkkA ;g lgh gS fd gekjs igqapus ds FkksM+h nsj ckn gh fxjkZt ds yM+ds o xkao okys ogka ij nkSM+dj vk x;s FksA ;g lgh gS fd og rFkk jkeLo:i tc ?kVukLFky ij igqaps rks mUgksaus rks fxjkZt dks tehau ij iM+s gq, dks rM+irs gh ns[kk FkkA ftjg esa bl xokg us Li"V :i ls dgk fd ;g xyr gS fd fxjkZt ds ?ku';ke us pksV ugha ekjh gksA ;g lgh gS fd jkeLo:i dk bl ?kVuk ls dksbZ lEcU/k ugha gSA jkeLo:i rks mlds lkFk cpkus x;k FkkA " 5. It is admitted that the aforesaid prosecution witness PW-4 has not been declared as hostile and there is no reason to doubt his testimony as he is an independent witness and has clearly deposed that Ramswaroop, respondent No.2 herein went to the spot along with the aforesaid witness PW-4 Ramkalyan only with the intention to save the deceased and the theory putforth by the prosecution and by the appellant Dinesh Kumar who deposed before the learned trial Court that Ramswaroop had caught hold of the deceased and Ghanshyam had inflicted the injury is not proved. If testimony of PW-4 is taken into account, the prosecution story about the respondent having caught hold of the deceased facilitating Ghanshyam to inflict the injury cannot be said to be proved beyond reasonable doubt. 6. Apart from the above, it has come in the evidence of PW-12 the Investigating Officer, Hemant Gautam who has admitted having recorded the statement of Ghanshyam and Ramswaroop. 6. Apart from the above, it has come in the evidence of PW-12 the Investigating Officer, Hemant Gautam who has admitted having recorded the statement of Ghanshyam and Ramswaroop. The Investigating Officer has corroborated the fact that PW-4 Ramkalyan had stated that he went to the spot only after hearing hue and cry and the accused Ramswaroop also reached there with the intention to intervene and save the deceased. The relevant portion in the judgment reads as follows: " vuqla/kku vf/kdkjh ih0M0 12 gseUr xkSre us Hkh viuh ftjg esa dgk gS fd ;g dguk lgh gS fd Lora= xokg jkedY;k.k iq= x.ks'kjke ds c;ku fy;s FksA ;g ckr lgh gS fd jkedY;k.k us vius c;ku fy;s FksA ;g ckr lgh gS fd jkedY;k.k us vius c;ku esa crk;k Fkk fd 'kkSj lqudj vfHk;qDr jkeLo:i ?kVukLFky ij chp cpko djus x;k FkkA bl izdkj vfHk;qDr jkeLo:i us vkijkf/kd ?kVuk esa dksbZ Hkkx fy;k gks] ;g rF; vfLrRo esa ugha gSA " 7. Relying upon the aforesaid set of evidence, the learned trial court has held: " xokg ih0M0 4 jkedY;k.k Lora= lk{kh us vius eq[; ijh{k.k esa ek= vfHk;qDr ?ku';ke dh mifLFkfr crkrs gq;s e`rd fxjkZt ds pkdq ekjuk crk;k gSaA vfHk;qDr jkeLo:i ds laca/k esas vius eq[;ijh{k.k esa ,d 'kCn Hkh ugha dgk gS vkSj mldh ftjg ls fLFkfr iw.kZr;k Li"V gks tkrh gS fd vfHk;qDr jkeLo:i dk vkijkf/kd ?kVuk esa dksbZ " ikVZ " ugha jgk gSA " 8. Learned Counsel for the appellant did not dispute the aforesaid facts as recorded in the judgment of the learned trial court. 9. In the facts and circumstances, therefore, we are of the opinion that the findings given by the learned trial court qua the respondent No.2 Ramswaroop cannot be said to be such which call for interference as there is a reasonable doubt as to when Ramswaroop accused reached the spot, i.e. with PW-4 Ram Kalyan after hearing the altercation with a view to save the deceased or otherwise. The learned trial Court has given this benefit of doubt to the accused Ramswaroop and we find no compelling reason to interfere with these findings. 10. The appeal filed by Dinesh Kumar Saini, complainant against the acquittal of Ramswaroop is, accordingly, dismissed.Appeal dismissed. *******