Research › Search › Judgment

Rajasthan High Court · body

2010 DIGILAW 2106 (RAJ)

State of Rajasthan v. Kana

2010-12-21

MEENA V.GOMBER, NARENDRA KUMAR JAIN

body2010
JUDGMENT 1. Heard the learned counsel for the parties. 2. This appeal, on behalf of State of Rajasthan, is directed against the impugned judgment dated 05.02.1983 passed by the Sessions Judge, Jaipur District, Jaipur in Sessions Case No.13/1981, whereby all the 19 accused persons were acquitted from all the charges levelled against them. 3. It is relevant to mention that Leave to Appeal in the present case against all the 19 accused persons was filed on 18.05.1983. This Court vide order dated 23.03.1984, refused to grant leave to appeal against 16 accused persons except three accused, namely, Madho S/o Ghasi, Mewa S/o Madhu and Kana S/o Madhu, against whom leave to appeal was granted, therefore, appeal was registered against above-named three accused persons only. 4. During pendency of this appeal, accused-respondent Madho S/o Ghasi died and State appeal against him stood abated vide order dated 21.01.1985 and vide order dated 10.12.1996 his name was deleted from the array of accused/respondents. 5. It is also relevant to mention that another accused Mewa S/o Madhu also died during pendency of this appeal and on an application moved by the learned Public Prosecutor on behalf of State-appellant under Section 394 Cr.P.C., this Court vide order dated 24.02.2010 dismissed the State appeal against accused-respondent Mewa S/o Madhu, also, as abated. 6. Therefore, out of total 19 accused persons, there is only one accused-respondent, namely, Kana S/o Madhu, against whom this State Appeal survives. 7. Briefly stated the facts of the case are that on 26.09.1980, a written report Ex.P1 was lodged at Police Station Phagi by PW1 Chhitar in respect an incident dated 26.09.1980, wherein one person, namely, Ram Chandra died and Ladi, Sitaram, Ramu and Govinda sustained injuries. Chalked FIR No.131/1980 (Ex.P2) was registered on 26.09.1980 at 3.30 p.m. under Sections 302, 147 IPC and investigation commenced. 8. After completion of investigation, the police submitted a charge-sheet against 19 accused persons for the offences under Sections 147, 149, 302, 325, 324 and 323 IPC in the Court of Additional Munsif & Judicial Magistrate, Sambhar Lake, who committed the case for trial to the Court of Sessions Judge, Jaipur District, Jaipur. 9. 8. After completion of investigation, the police submitted a charge-sheet against 19 accused persons for the offences under Sections 147, 149, 302, 325, 324 and 323 IPC in the Court of Additional Munsif & Judicial Magistrate, Sambhar Lake, who committed the case for trial to the Court of Sessions Judge, Jaipur District, Jaipur. 9. Learned trial Court framed charges against accused Madho S/o Ghasi under Sections 148, 302, 324, 323/149, 325/149 IPC, against accused Mewa under Sections 147, 302, 323/149, 324/149, 325/149, against respondent Kana under Sections 148, 324, 302/149, 323/149, 325/149 and against remaining accused persons under Sections 147, 302/149, 323/149, 324/149, 325/149 and 323 IPC. Accused persons denied the charges and claimed trial. 10. In support of its case, the prosecution examined PW1 to PW15 and adduced documentary evidence. Thereafter the statements of the accused persons were recorded under Section 313 Cr.P.C. In defence, the accused-persons examined DW1 Nathu, DW2 Ramlal and DW3 Ganga Ram. 11. Learned trial Court after considering the submissions of the parties and the evidence available on record, acquitted all the 19 accused persons. 12. Submission of learned counsel for appellant is that the learned trial Court committed an illegality in acquitting the accused respondents from all the charges levelled against them, however, in view of the fact that leave to appeal was refused against 16 accused-respondents, and two accused-respondents Madho S/o Ghasi and Mewa S/o Madhu have died, learned counsel for the State confined her arguments only to the extent that accused-respondent Kana exceeded the right of private defence, in the facts and circumstances of the present case, therefore, he may be convicted at least for the offence under Section 324 IPC. 13. Learned counsel for the respondents defended the impugned judgment of acquittal passed by the trial Court and submitted that the learned trial Court after appreciation of the evidence, gave benefit of right of private defence to the accused persons and leave to appeal was refused against 16 accused persons, therefore, finding in respect of Section 149 IPC has attained finality. So far as submission of learned counsel for appellant in respect of respondent Kana is concerned, he referred the statements of prosecution witnesses and submitted that the learned trial Court was fully justified in acquitting accused-respondent Kana also in view of various contradictions in the statements of prosecution witnesses. 14. So far as submission of learned counsel for appellant in respect of respondent Kana is concerned, he referred the statements of prosecution witnesses and submitted that the learned trial Court was fully justified in acquitting accused-respondent Kana also in view of various contradictions in the statements of prosecution witnesses. 14. He further submitted that this is an appeal against the order of acquittal where benefit of doubt, even if two views are possible on appreciation of evidence, is to be given to the accused, therefore, there is no force in this appeal and the same is liable to be dismissed. 15. We have considered the submissions of learned counsel for the parties in the light of reasons assigned by the trial Court for acquittal of the accused-respondents. 16. The present incident took place on 26.09.1980 and written report Ex.P1 was lodged at Police Station Phagi by PW1 Chhitar and chalked FIR No.131/1980 was registered on the same day at 03.30 p.m. In the said incident, Ram Chandra succumbed to the injuries and other persons sustained injuries. 17. Learned trial Court considered the prosecution evidence in detail and recorded a finding that accused persons were in possession of the land in dispute where the incident took place and the complainant party was the aggressor, therefore, this is a fit case wherein the accused persons are entitled for right of private defence. 18. Learned trial Court also considered that the land in dispute was purchased by the accused persons and the accused persons were in possession and they also sustained injuries in the present incident, therefore, charges under Sections 147, 148 and 149 IPC are not made out. 19. It is relevant to mention that charge-sheet was filed in the case against 19 accused persons and the trial Court acquitted all the 19 accused persons. This Court refused to grant leave against 16 accused persons and granted leave only against three accused persons, as mentioned above. In these circumstances, finding of the trial Court in respect of acquittal of the accused-persons including respondent Kana from the offence under Sections 147, 148 and 149 IPC has attained finality. This Court refused to grant leave against 16 accused persons and granted leave only against three accused persons, as mentioned above. In these circumstances, finding of the trial Court in respect of acquittal of the accused-persons including respondent Kana from the offence under Sections 147, 148 and 149 IPC has attained finality. Now we are required to examine the individual act of the accused-respondents, however, two accused persons, namely, Madho S/o Ghasi and Mewa S/o Madhu, both also expired and State appeal also stood abated against them, therefore, there is only one accused-respondent, namely Kana S/o Madhu against whom the present State appeal survives. 20. Learned counsel for the State referred the statement of PW8 Ramu, PW11 Sitaram, both injured eye-witnesses, and PW15 Gyan Prakash, the Investigating Officer and the statements of others prosecution witnesses also and contended that although, fatal injuries on the person of deceased were inflicted by two accused persons, namely Madho S/o Ghasi and Mewa S/o Madhu, but both have expired, but so far as present responent Kana is concerned, he also inflicted injury by 'Kulhadi', therefore, at least respondent Kana should be convicted for the offence under Section 324 IPC. 21. In this regard, we have considered the statements of injured eye-witnesses Sitaram, Govinda, Ramu and also the statement of Investigating Officer Gyan Prakash and we find that in Ex.P1 the allegation against Kana was that he inflicted injury by 'Kulhadi', whereas in cross-examination, these prosecution witnesses were confronted with their earlier statements recorded under Section 161 Cr.P.C., wherein they stated that Kana inflicted injury by 'Lathi'. 22. Learned trial Court considered the statements of the prosecution witnesses in detail and came to a conclusion that there are material contradictions in the statements of the prosecution witnesses and it is not known whether Kana was having 'Kulhadi' or 'Lathi'. The learned trial Court also recorded a finding that it is not known as to which accused inflicted injury on which part of the body of injured and deceased. 23. It is also relevant to mention that from the statement of PW15 Gyan Prakash, the Investigating Officer and other oral and documentary evidence, it is clear that no recovery of any weapon from accused Kana was made during investigation by the prosecution in the present case, therefore, there is no corroborative evidence also against accused Kana. 24. 23. It is also relevant to mention that from the statement of PW15 Gyan Prakash, the Investigating Officer and other oral and documentary evidence, it is clear that no recovery of any weapon from accused Kana was made during investigation by the prosecution in the present case, therefore, there is no corroborative evidence also against accused Kana. 24. We are conscious that we are dealing with an appeal against an order of acquittal of respondent passed by the trial Court. Learned counsel for appellant could not point out any perversity or illegality in the finding of trial court so as to interfere in the order of acquittal passed by the trial Court. After considering the statements of prosecution witnesses, we are of the firm view that the finding of the learned trial Court is based on proper appreciation of evidence. 25. Even on re-appreciation of the entire evidence on record and other circumstances of the case, we have not been able to persuade ourselves for arriving at a different finding than one recorded by the learned trial Court. 26. Hon'ble Apex Court in State of Madhya Pradesh v. Bacchudas alias Balaram & Ors., AIR 2007 SC 1236 , observed that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Hon'ble Apex Court further observed that the order of acquittal should not be interferred with unless there are some compelling and substantial reasons or circumstances for doing so. 27. As mentioned above, even on re-appreciation of entire prosecution evidence on record, we do not find any reason to take a different view than the view taken by the learned trial Court. 28. In view of above discussions, we do not find any merit in this appeal and the same is, accordingly, dismissed.Appeal dismissed. *******