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2012 DIGILAW 179 (RAJ)

State of Rajasthan v. Mahesh Kumar

2012-01-18

R.S.CHAUHAN

body2012
JUDGMENT 1. - The State is aggrieved by the judgment dated 6.4.2009 passed by the Sessions Judge, Hanumangarh, whereby the learned Judge has acquitted the accused respondent, Mahesh Kumar for offences under Sections 148, 307, 327 read with Section 149 IPC. 2. The brief facts of the case are that on 12.6.2006, Bhim Singh, SHO Police Station, Goluwala, recorded the Parcha Bayaan of one Krishna Lal (P.W.4), in the P.B.M. Hospital at Bikaner. In his Parcha Baayan, Krishna Lal, informed the police that on 1.6.2004 around 8.30-8.45 P.M. when he was returning back to his house, after having taken his dog out for a walk, near the house of the Hanuman Das, he was attacked by Mahesh, Sita Ram, Doogar Das, Mohan Das and Hanuman Das. These persons were armed with Lathi and Gandasi (sharp edged weapon). These persons assaulted him with lathi; when he fell down, Sita Ram, struck his head with sharp edged weapon which looked like a Gandasi. Due to the said injury, he fainted. On the basis of this Parcha Bayaan, a formal FIR, FIR No. 98/2004 was chalked out. Subsequently, the police submitted a challan against accused respondents, Mahesh, Sita Ram, Doogar Das, Mohan Das and Hamuman Das. 3. In order to buttress his case, the prosecution examined eleven witnesses, and submitted a few documents. However, the defence neither examined any witness, nor submitted any documents. After going to the oral and documentary evidence, vide judgment dated 6.4.2009, the learned Judge acquitted all the accused persons. Aggrieved by the said judgment, the State has filed this criminal leave to appeal only against Mahesh and not against the other co-accused who have already been acquitted by the learned Judge. 4. Mrs. Chandra Lekha, the learned Public Prosecutor, has vehemently contended that the learned Judge has failed to appreciate the evidence in proper perspective. According to her, Krishna Lal (P.W.4), had clearly stated that Hanuman Das had struck him on the right side of the head and others hit him with lathies. According to her, since Krishna Lal (P.W.4), had become unconscious, since he did not regain his conscious state for a few days, the Parcha Bayaan could not be recorded immediately. Secondly, his testimony has been corroborated by the medical evidence by the injury report (Ex.P.27). Therefore, the prosecution has proved its case beyond a reasonable doubt. According to her, since Krishna Lal (P.W.4), had become unconscious, since he did not regain his conscious state for a few days, the Parcha Bayaan could not be recorded immediately. Secondly, his testimony has been corroborated by the medical evidence by the injury report (Ex.P.27). Therefore, the prosecution has proved its case beyond a reasonable doubt. Lastly, that the prosecution cannot be faulted for not having examined any independent witness. However, one of the reasons assigned by the learned Judge for acquitting the accused respondent is the fact that the prosecution has failed to examine independent witness. Therefore, according to leaned Public Prosecutor, the impugned judgment deserves to the interfered with. 5. On the other hand, Mr. M.K. Garg, the learned counsel for the accused respondent, has strenuously contended that the prosecution has failed to prove its case beyond a reasonable doubt. Secondly, the prosecution has failed to explain the inordinate delay of twelve days in filing of the FIR. The learned Judge has noticed the fact that the treating doctors, Dr. S.N. Agarwal (P.W.9), and Dr. Jaspal Badpagga (P.W.10), have nowhere stated that the injured was unconscious from 1.6.2004 till 12.6.2004. Thus, the learned Judge was certainly justified in concluding that the prosecution has failed to explain the inordinate delay of twelve days. Thirdly, that although Krishna Lal (P.W.4), claims that he had suffered a large number of injuries from the hands of the appellant and other co-accused persons, yet his testimony is belied by the injury report (Ex.P-27). For, according to the injury report, (Ex.P.27) Krishna Lal, had suffered merely two injuries on the entire body. Lastly, that considering the fact that alleged assault had taken place on a public road, considering the fact that during the summer months people do sit outside their house around 8:30 to 8:45 P.M., surprisingly, the prosecution has not examined a single independent witness, Clubbed with the inordinate delay these facts clearly points to the possibility that accused appellant has been roped in falsely in the criminal case. Moreover, there is sufficient evidence to show that there is animosity between parties. Hence, the learned judge was certainly justified in acquitting the accused respondents. 6. Heard the learned counsel for the parties, perused the record, and examined the impugned judgment. 7. Needless to say, that the prosecution has to travel a great distance between "may be true" and "must be true". Hence, the learned judge was certainly justified in acquitting the accused respondents. 6. Heard the learned counsel for the parties, perused the record, and examined the impugned judgment. 7. Needless to say, that the prosecution has to travel a great distance between "may be true" and "must be true". In the present case, admittedly there is delay of twelve days in lodging of the FIR; this delay has to be explained by the prosecution. However the prosecution has failed to do so. The prosecution has claimed that the FIR could not be lodged as Krishna Lal (P.W.4) was unconscious from 1.6.2004 till 12.6.2004. However, this plea has not been supported by the testimonies of the medical doctors. For, neither Dr. S.N.Agarwal (P.W.9), nor Dr. Jaspal Badpagga (P.W.10), has claimed that Krishna Lal was unconscious for the twelve days. Moreover, according to Mahaveer (P.W.1), and Narayan Das (P.W.2), both of whom are Krishna Lal's brother, the police station was right next to the hospital where Krishna Lal was admitted. Despite the fact that the claim of accused respondents and other persons had assaulted Krishna Lal, both of them failed to inform the police at the nearby police station. No clarification has been offered by the prosecution about inability of Mahaveer (P.W.1), and Narayan Das (P.W.2), in informing the police. Hence, the learned Judge was certainly justified in concluding that inordinate delay has not been explained by the prosecution, which is fatal to it. 8. The learned Judge has also noticed the fact that according to Krishna Lal (P.W.4), Hanuman Das allegedly assaulted him on the right side of the head, according to him, Sita Ram, had hit him with Gandasi and others had assaulted him with lathies. Thus, according to him, he had suffered multiple injuries due to the assault. However, according to the injury report, (Ex.P.27), Krishna Lal (P.W.4) had suffered merely two injuries on his entire body. Therefore, the injury report clearly belies the assertion made by the Krishna Lal. Since the star witness of the prosecution is Krishna Lal, his testimony has to be sterling worth. Yet his testimony has not been corroborated by the injury report. Thus, the learned trial court was justified in concluding that Krishna Lal (P.W.4) is not a trustworthy witness. 9. Therefore, this Court does not find any illegality or perversity in the impugned judgment dated 6.4.2009. Yet his testimony has not been corroborated by the injury report. Thus, the learned trial court was justified in concluding that Krishna Lal (P.W.4) is not a trustworthy witness. 9. Therefore, this Court does not find any illegality or perversity in the impugned judgment dated 6.4.2009. The criminal leave to appeal is devoid of any merit; it is, hereby, dismissed.Leave to appeal dismissed. *******