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2017 DIGILAW 1295 (RAJ)

Kinder Singh v. State of Rajasthan

2017-05-19

PANKAJ BHANDARI

body2017
JUDGMENT : Pankaj Bhandari, J. 1. Appellant has preferred this appeal aggrieved by judgment dated 27.07.1989 passed by Additional Sessions Judge, Dholpur, whereby the appellant and three other co-accused were convicted under Section 304-II IPC and were sentenced to seven years rigorous imprisonment and a fine of Rs. 5,000/- in default of payment of fine to further suffer one year's rigorous imprisonment. 2. It is contended by counsel for the appellant that the appeal filed by Sukha, Beniram and Karua has abated due to demise of the accused appellants vide order dated 28.04.2017 in Criminal Appeal No. 256/1989. 3. Briefly stated the facts of the case are that FIR Ex. P-2 was lodged by Sahib Singh, brother of Hari Singh on 31.10.1987. It was mentioned in the FIR that on 30.10.2017 at around 08:00 pm Hari Singh and his wife were at their residence, Sukha entered the house and ran away with the radio belonging to Hari Singh. Hari Singh chased Sukha Singh and caught him at Village Sikroda. In the FIR it is alleged that at Village Sikroda persons known to Sukha that is Kinder Singh, Kalicharan and Bediram and Karua gave lathi blows to Hari Singh and he succumbed to the injuries. 4. It is contended that out of 17 witnesses examined by the prosecution PW-2 Panna, PW-3 Sumera, PW-4 Shobha Ram, PW-5 Tej Singh, PW-6 Vijjo, PW-7 Raj Kumar, PW-8 Jhandel Singh, PW-9 Sahib Singh brother of deceased and PW-10 Munni wife of deceased have been declared hostile by the prosecution, there is no eye-witness to the incident. The conviction of the appellant cannot be sustained as there is not an iota of evidence against him. 5. Public Prosecutor has opposed the appeal. His contention is that PW-8, Jhandel Singh in his examination in chief has stated that the deceased told him that Kinder Singh, Sarpanch has given him beating. He has further stated that Raj Kumar was present at that time. It is contended that there being evidence of Jhandel Singh, the conviction order requires to be sustained. 6. I have considered the contentions. 7. He has further stated that Raj Kumar was present at that time. It is contended that there being evidence of Jhandel Singh, the conviction order requires to be sustained. 6. I have considered the contentions. 7. The incident took place after Sukha ran away with the radio belonging to Hari Singh, Hari Singh chased him and caught him at Village Sikroda, where it is alleged that the accused Sukha, Beni Ram, Karua, Kali Charan and Kinder Singh gave beating to Hari Singh as a result of which he succumbed to the injuries. None of witnesses produced by the prosecution has supported the prosecution version. Eye-witnesses to the incident, Shobha Ram and Vijjo have been declared hostile. 8. PW-7 Raj Kumar and PW-8 Jhandel Singh are the witnesses who said that they came to the spot after the accused ran away. Jhandel Singh stated that the deceased Hari Singh told him that Kinder Singh gave him beating and the deceased did not name any other person. This witness has also stated that Raj Kumar was also present at the time when Hari Singh told him about the incident. Raj Kumar has been declared hostile and he has stated that deceased did not tell anything about the incident. 9. The only evidence which now remains against the present appellant is that of Jhandel Singh who has stated that he received the information about commission of offence by the present appellant from the deceased Hari Singh. This witness, however, in his statement under Section 161 Cr.P.C. 1973 Ex.P-1 has not mentioned the fact of beating being given by Kinder Singh. 10. In that view of the matter, the eye-witnesses of this case having turned hostile. There is no evidence namesake against the present appellant. The appeal of the other co-accused has abated due to their demise. 11. The Court below while passing the impugned order has placed reliance on the evidence of hostile witnesses in convicting the appellant on the ground that there is no enmity of the witnesses with the appellant which order cannot be sustained. 12. In that view of the matter, the present appeal deserves to be allowed and the judgment and sentence dated 27.07.1989 qua the appellant deserves to be quashed and set aside. 13. The appeal preferred by the appellant is allowed, the appellant is acquitted of the charge under Section 304-II IPC. 12. In that view of the matter, the present appeal deserves to be allowed and the judgment and sentence dated 27.07.1989 qua the appellant deserves to be quashed and set aside. 13. The appeal preferred by the appellant is allowed, the appellant is acquitted of the charge under Section 304-II IPC. Appellant is directed to submit personal bond and security of Rs. 25000/- to the satisfaction of the Deputy Registrar (Judicial) on or before two months to appear before the Supreme Court as and when Supreme Court issue notices in respect of any appeal or petition filed against this judgment.