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2015 DIGILAW 1740 (RAJ)

Deva v. State of Rajasthan

2015-10-05

GOPAL KRISHAN VYAS, VIJAY BISHNOI

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JUDGMENT : Gopal Krishan Vyas, J. In this Criminal revision petition filed under Section 397 read with Section 401 Cr.P.C. the complainant Deva S.o Late Sh. Jiva Katara (Meena) is challenging the validity of the judgment dated 3.6.1999 passed in Sessions Case No. 101/1999 by the learned Sessions Judge, Dungarpur whereby the learned trial court acquitted the respondents nos. 2 to 6 from the charges levelled against them under Section 148, 447, 302, 302/149, 323 and 325 IPC. 2. As per the facts of the case on 6.7.1998 at about 7.30 pm one Jiva submitted an FIR before Police Station Sadar, District Dungarpur alleging therein that today at about 4.00 pm in his agricultural field known as Khetanami Kuwa, one Khemraj and accused Laxman were cultivating the land. When complainant went in the agricultural field, he saw that accused Sega, Mukesh, Udai Singh, Harish, Smt. Naal and Nana ere plugging the field, at that time, complainant Jiva came back in his house and after taking Kamji, Shanker along with him came back in the agricultural field and raised objection not to cultivate the land. As per allegation in the complaint all the accused persons were having Lathi, Gupti, Sword and stone in their hands and they assaulted Kamji and Shanker, so also, the complainant and one of the witness Vishwakrishan, at that time, upon intervention by Amrit Lal and Vishwakrishan, they were stopped to inflict injuries. Upon aforesaid information, FIR under Section 147, 447, 323, 324 read with Section 149 IPC was registered at Police Station Sadar at 7.30 pm on 6.7.1998. During investigation, on 7.7.1998 the complainant Jiva died, therefore, Section 302 IPC was added. 3. After completion of investigation, challan was filed against the respondent no.2 to 6 in the court of Civil Judge (Jr. Div.)-cum-Judicial Magistrate, Dungarpur from where case was committed to the Sessions Court, Dungarpur for trial. In the trial, after framing charge against the respondents under Section 147, 447, 302, 302/149, 323 and 325 IPC, the learned trial court granted an opportunity to the prosecution to lead evidence. 4. In support of prosecution case, the statements of 7 prosecution witnesses were recorded, but all the eye witnesses PW-2 Amrit Lal, PW-3 Vishwakrishan, PW-5 Shanker and PW-6 Kamji turned hostile and did not support the prosecution case. 5. 4. In support of prosecution case, the statements of 7 prosecution witnesses were recorded, but all the eye witnesses PW-2 Amrit Lal, PW-3 Vishwakrishan, PW-5 Shanker and PW-6 Kamji turned hostile and did not support the prosecution case. 5. The learned trial court acquitted all the respondents from the charges levelled against them on the ground that prosecution has failed to prove its case because all the eye witnesses turned hostile and they did not support the prosecution case, so also, there is no other evidence on record. 6. Learned counsel for the petitioner revisionist submits that finding arrived at by the learned trial court is totally erroneous because the FIR was filed by the deceased Jiva himself, which was to be considered as dying declaration of Jiva, but the learned trial court has failed to treat the FIR as dying declaration, therefore, the finding given by the trial court deserves to be quashed and set aside. It is also argued that allegation made in the FIR by late Jiya is corroborated by the medical evidence, therefore, it cannot be said that the prosecution has failed to prove its case beyond reasonable doubt. More so, it is a case in which the learned trial court has failed to consider the FIR as dying declaration. While inviting our attention towards the fact that trial judge has failed to procure the attendance of the Investigating Officer to record his statement and no proper opportunity was given to the prosecution to summon the Investigating Officer, therefore, non-recording of evidence of Investigating Officer by the learned trial court amounts to abuse of process of the court because it was the duty of the learned trial court to summon the Investigating Officer for the evidence. It is also argued that injured eye witnesses has compromised with the respondents, therefore, they became hostile but they admitted the quarrel and place of occurrence in their statements, therefore, it is a fit case to quash the judgment impugned and to remand the matter for fresh trial because finding given by the learned trial court is totally erroneous. 7. It is also argued that injured eye witnesses has compromised with the respondents, therefore, they became hostile but they admitted the quarrel and place of occurrence in their statements, therefore, it is a fit case to quash the judgment impugned and to remand the matter for fresh trial because finding given by the learned trial court is totally erroneous. 7. Per contra, learned counsel appearing on behalf of the respondents submits that initially FIR was registered under Section 147, 447, 323, 324 IPC but after the death of complainant Jiva on 7.7.1998 the offence under Section 302 IPC was added and charge-sheet was filed in the court, but the allegation levelled in the FIR by deceased Jiva has not been corroborated by any prosecution witnesses, who gave statement in trial, therefore, even if the prayer of the petitioner is accepted to treat the FIR as dying declaration of Jiva then also, it is not a case for conviction or to send back for fresh trial because all the eye witnesses turned hostile and did not support the prosecution case. 8. With regard to non-examination of Investigating Officer it is submitted that it was for the prosecution to lead evidence of Investigating Officer. The court was not required to compel the prosecution to lead evidence because it was the duty of the prosecution to produce all the prosecution witnesses to prove the prosecution case, therefore, there is no force in this revision petition filed by the petitioner, hence, the revision petition may kindly be dismissed. 9. After hearing the learned counsel for the parties, this court cannot loose sight of the fact that out of 7 prosecution witnesses, the eye witnesses PW-2 Amrit Lal, PW-5 Shanker and PW-6 Kamji turned hostile and did not support the prosecution case. Further, none of the hostile witnesses corroborated the allegation levelled in the FIR by deceased Jiva. 10. 9. After hearing the learned counsel for the parties, this court cannot loose sight of the fact that out of 7 prosecution witnesses, the eye witnesses PW-2 Amrit Lal, PW-5 Shanker and PW-6 Kamji turned hostile and did not support the prosecution case. Further, none of the hostile witnesses corroborated the allegation levelled in the FIR by deceased Jiva. 10. Upon perusal of record it is revealed that on 19.5.1999 when case was listed in trial court for recording statement of prosecution witnesses, upon the prayer of the Public Prosecutor that prosecution is not desirous to produce witnesses mentioned at S.No. 5,6,7,8,9, 11 and 14 in the list of witnesses, therefore, it is evident that from the record that upon request made by the learned Public Prosecutor, the statements of remaining witnesses were not recorded and the case was fixed for recording statement of accused persons under Section 313 Cr.P.C. Meaning thereby, the allegation of the petitioner for securing presence of Investigating Officer to record his statements by the court is not sustainable because the prosecution itself refused to produce further witnesses before the Court for the simple reason that all the eye witnesses turned hostile. 11. In view of the fact that all the eye witnesses turned hostile and Investigating Officer was not produced before the court in support of prosecution case, we are not inclined to interfere in the judgment rendered in the year 1999 after 17 years. In view of the above, the instant cr. revision petition is hereby dismissed. Revision dismissed.