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2016 DIGILAW 167 (RAJ)

State of Rajasthan v. Kailash Singh

2016-01-28

GOPAL KRISHAN VYAS, P.K.LOHRA

body2016
JUDGMENT : Gopal Krishan Vyas, J. The above D.B. Cr. Leave to Appeal No. 280/2015 has been filed by the State of Rajasthan and the D.B. Cr. Appeal No. 642/2015 has been filed by the complainants-appellants Gajendra Singh and Samundra Singh against the judgment dated 27.5.2015 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Merta in Sessions Case NO.74/2006 (2/2006) by which the learned trial court acquitted the respondents from the charges levelled under Section 452, 302/34 and 323/34 IPC. 2. Both the aforesaid matters are being decided by this common judgment. 3. As per brief facts of the case on 5.10.2006 at about 6.00 pm PW - 1 Samandar Singh appeared before the SHO Police Station, Padukallan and submitted written report (Ex.P/1) in which it was alleged that on 26.9.2006 at about 7-7.30 pm his uncle Mohan Singh along with other family members were sitting in their residential house, at that time, respondents Kailash Singh, Arjun Singh, Bhagwan Singh @ Bhagwan Kailash and 3 other persons having Lathi and sharp edged weapon Gandasa in their hand entered in the house with a common intention to kill his uncle Madan Singh. In the house they gave beatings to Mohan Singh and inflicted Lathi blow up on the hand and other part of the body. Gajendra Singh and Babu Singh tried to intervene but they caused serious injuries to Madan Singh. As per the allegation in the FIR accused Kailash Singh inflicted injury by Gandasi on the neck of Gajendar Singh but for protection lifted his hand, injury was received upon his hand. 4. According to the complainant when he came back on 27.9.2006 the whole story was narrated to him but due to the injury caused, his uncle became unconscious, therefore, after managing finance on 28.9.2006 his uncle was taken to Mittal Hospital and Search Center, Ajmer where doctors said that operation is to be done, therefore, you should deposit money expeditiously. According to the complainant no operation took place at Ajmer Hospital but his uncle was referred for treatment to SMS Hospital, Jaipur on 2.10.2000 where operation took place, therefore, due to the above reasons FIR was not submitted in time. 5. According to the complainant no operation took place at Ajmer Hospital but his uncle was referred for treatment to SMS Hospital, Jaipur on 2.10.2000 where operation took place, therefore, due to the above reasons FIR was not submitted in time. 5. As per prosecution case upon aforesaid complaint (Ex.P/1) FIR No. 159 (Ex.P/2) was registered on 5.10.2006 under Section 143, 452, 307 and 323/34 IPC at Police Station Padukallan where after registration of the FIR, investigation was commenced. During investigation, Mohan Singh died, therefore post mortem was conducted in SMS Hospital, Jaipur by the medical jurist and report (Ex.P/6) was given on 6.10.2006. 6. After completion of investigation challan was filed in the court of Addl. Civil Judge (Jr.Div.)-cum Judicial Magistrate, First Class, Merta from where the case was committed to the court of District & Sessions Judge, Merta but later on transferred to the court of Special Judge, SC/ST (Prevention of Atrocities) Cases, Merta. 7. The learned trial court after framing charge under Section 452, 302/34 and 323/34 IPC commenced the trial. In the trial, statements of 15 prosecution witnesses were recorded and 18 documents were exhibited from the prosecution side. 8. After recording evidence of prosecution, the learned trial court proceeded to record statements of respondents under Section 313 Cr.P.C. The respondents denied all the allegations levelled against them and in defence exhibited 7 documents. After recording evidence of both the sides, the learned trial court finally heard arguments and decided the case vide judgment dated 27.5.2015 by which acquitted the respondents from the charge levelled against them. 9. Learned Public Prosecutor as well as the learned counsel for the complainant-appellant vehemently argued that the learned trial court has committed a serious error of law as well as of the facts while acquitting the respondents from the charges levelled against them because the learned trial court did not appreciate the testimony of the prosecution witnesses in right perspective. While inviting attention towards statements of PW - 2 Gajendra Singh it is submitted that he is eye witness who has narrated whole story, in spite of the fact that the learned trial court acquitted the respondents from the charges levelled against them, therefore, the judgment impugned may be quashed. 10. While inviting attention towards statements of PW - 2 Gajendra Singh it is submitted that he is eye witness who has narrated whole story, in spite of the fact that the learned trial court acquitted the respondents from the charges levelled against them, therefore, the judgment impugned may be quashed. 10. Learned Public Prosecutor as well as learned counsel for the complainant submits that the PW - 2 Babu Singh is son of Mohan Singh and other eye witnesses PW - 4 Sumitra, PW - 6 Sarswati and PW - 7 Laxman Singh are the witness of incident and they deposed in their statements in unambiguous term that respondents made attack upon the deceased Mohan Singh with deadly weapon and caused serious injuries and due to those injuries Mohan Singh died, but he learned trial court committed a grave error while disbelieving the testimony of these witnesses, therefore, the judgment impugned deserves to be quashed. 11. With regard to delay in filing FIR it is submitted that due to connivance of respondents, the FIR was not filed immediately and narrated whole allegation against the respondents but the learned trial court held that delay of 7 days in filing FIR is fatal, in fact, it is not fatal because reason for filing FIR after delay of 7 days was explained by leading trustworthy evidence, therefore, the judgment impugned may kindly be set aside. 12. Learned Public Prosecutor submits that leave to appeal may kindly be granted and the learned counsel for the complainant submits that the appeal filed by the complainant may also be admitted. 13. After hearing the learned Public Prosecutor and learned counsel for the complainant, we have considered the finding given by the learned trial court in the light of the arguments advanced by the learned Public Prosecutor and the learned counsel for the complainant. 14. In para no. 26 of judgment the learned trial court gave finding that as per prosecution case incident took place on 26.9.2006 at about 7-7.30 pm in the evening, whereas written complaint was filed on 5.10.2006, in spite of the fact that the distance between the place of occurrence and the Police Station is only 9 kms. 15. It is observed that in that in the document (Ex.P/18) collected by the Investigating Officer from Mittal Hospital and Research Center, Ajmer the deceased Mohan Singh was taken to the hospital after alleged incident. 15. It is observed that in that in the document (Ex.P/18) collected by the Investigating Officer from Mittal Hospital and Research Center, Ajmer the deceased Mohan Singh was taken to the hospital after alleged incident. In Ex.P/18 following information was given by the complainant Samundar Singh, which reads as under: "No head injury 3 days back due to fall of wooden log. F/b. disorientation and irrelevant talking." 16. Meaning thereby the occurrence took place on 26.9.2005, but patient was taken to the Mittal Hospital on 29.9.2006 till that date, no complaint was made nor it was disclosed to the hospital authorities that injuries were caused by the respondents. 17. In the post mortem report (Ex.P/6) it is specifically mentioned that patient was admitted in the SMS Hospital on 2.10.2006 whereas FIR was registered at Police Station Padukalla dukallan on 5.10.2006. The doctor PW - 15 NL Disaniya performed post mortem was examined in the trial stated before the court that at the time of medical examination only one injury of 3x2 cm was found upon left hand and second injury of 3x2 cm was found upon front side of head and no treatment was given by him to the victim so that the head injury can be caused if any person slip while driving the vehicle on road. 18. We have perused the statements of PW - 2 Babu Singh in which he said that the respondents Kailash Singh, Arjun Singh and Bhagwan Singh inflicted so many injuries by Lathi and Farsa. PW - 3 Keshav Kanwar also stated that number of injuries were caused by the respondents. PW - 4 Sumita and PW - 5 Gajendra Singh stated that number of injuries were caused by the respondents to the deceased Mohan Singh on the date of incident but in the post mortem only two injuries were found upon the body of the deceased. 19. The learned trial court while considering the statements of these witnesses gave finding that the allegation levelled by the eye witnesses with regard to inflicting number of injuries by the respondents is not corroborated from the injury mentioned in the post mortem report. 20. 19. The learned trial court while considering the statements of these witnesses gave finding that the allegation levelled by the eye witnesses with regard to inflicting number of injuries by the respondents is not corroborated from the injury mentioned in the post mortem report. 20. After perusing the statement of eye witnesses as well as post mortem report we are of the opinion that no error has been committed by the learned trial court in disbelieving the evidence of prosecution because upon Gandasi recovered from the respondents no blood was found, so also, no FSL report of weapon Gandasi is on record, therefore, in our opinion, the finding of the learned trial court that recovery of weapon Gandasi is not relevant does not require any interference. 21. The learned trial court while following the number of judgments held that due to major contradiction and upon fact that medical evidence is not corroborating the prosecution allegation, the prosecution has failed to prove its case beyond reasonable doubt. 22. In our opinion, no error has been committed by the learned trial court in acquitting the respondents from the charges levelled against them because it is a case in which FIR was filed after delay of 7 days, so also, the injuries mentioned in post mortem report are not corroborating the allegations levelled by the eye witnesses in their statements that a number of injuries were inflicted by the respondents. 23. In view of the above, we are not inclined to disturb the finding given by the learned trial court. 24. Consequently, the Cr. leave to appeal filed by the State of Rajasthan as well as the Cr. appeal filed by the complainant are hereby dismissed.