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2017 DIGILAW 2606 (RAJ)

State of Rajasthan v. Lekharam S/o of Jairam

2017-11-28

GOPAL KRISHAN VYAS, VIRENDRA KUMAR MATHUR

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JUDGMENT : GOPAL KRISHAN VYAS, J. The instant cr. appeal has been filed by the State of Rajasthan against the judgment dated 21.10.1987 passed by the learned Sessions & District Judge, Jodhpur in Sessions Case No. 10/86 whereby the learned trial court acquitted the respondent Lekharam from the charges levelled against him under Section 302 IPC. 2. As per facts of the case on 5.10.1985, Smt. Gawari went to search her cattle in the field of Devi Singh. When she entered into the field, at that time, as per the allegation of prosecution, accused Lekharam having weapon Jai in his hand came and inflicted injury upon her forehead and due to said injury Smt. Gawari fell down. Smt. Gawari was taken to the hospital by two witnesses P.W—1 Bhagirath and P.W—2 Vishna Ram who were said to be eye witnesses of the incident. In the Government Hospital, the post mortem of the deceased was conducted by the medical board and post mortem report (Ex.P/6) was prepared. Smt. Gawari was taken to the hospital by two witnesses P.W—1 Bhagirath and P.W—2 Vishna Ram who were said to be eye witnesses of the incident. In the Government Hospital, the post mortem of the deceased was conducted by the medical board and post mortem report (Ex.P/6) was prepared. The complainant Bhagirath submitted information at Police Station Bhojasar in which following allegations were levelled by him: ^^lsok es] Jheku Fkkusnkj lkgc] Iqkfyl Fkkuk HkkstkljA vtZ ,d HkkxhjFk jke iq= Jh eaxyk jke dkSe fo'uksbZ ¼taoj½ fuoklh tSlyk dh gS fd vkt lqcg djhc 10 cts esa esjh <k.kh ls fn[k.kkn [ksr ftles xokj ckS;k gqvk dks :dky jgk Fkk] esjs [ksr ds nf{k.k fd rjQ Jh nsohflaag iq= ds'kjflag jktiwr fuoklh tSlyk dk [ksr vk;k gqvk] ftlesa ys[kkjke iq= t;jke fo'uksbZ ¼Tkaoj½ fuoklh tSlyk gklys ls ckS;k gqvk] xokj :dky jgk Fkk] esjh HkkStkbZ xojh ifRu jke/ku fo'uksbZ fuoklh tSlyk vkt lqcg tYnh xk; dh fuxsnksLrh ¼<qaMus½ gsrq xbZ gqbZ] okil nsohflag ds [ksr ds nf{k.k dh rjQ ls ys[kkjke ds cks, gq, xokj esa ?kql dj esjs [ksr ,oa viuh <+k.kh dh rjQ vk jgh Fkh lkeus ls ys[kkjke gkFk es tbZ fy, Hkkx dj x;k vkSj tkrs gh mlus tbZ dh ekjh ftlls esjh HkktkbZ us ^vks;js ekjs^ bruk gYyk fd;kA eS gYyk lqudj nkSM+ dj NqM+kus tk jgk Fkk] esjs ihNs fo'ukjke iq= /khekjke fo'uksbZ] fuoklh uks[kM+k xksnkjku Hkh Hkkx dj vk;kA ge nksuks esjh HkkstkbZ ds ikl igqaps] brus esa ys[kkjke us esjh HkkstkbZ dks uhps iVd dj ekj fn;kA eSusa o fo'ukjke us ys[kkjke dks nqj dj esjh HkkstkbZ dks mBkus fd dksf'k'k fd rks og ejh gqbZ FkhA rc eSus iMkSlh [ksr ls euksgjjke iq= dkStkjke fo'uksbZ fuoklh tSlyk dks cqykdj mldks xkao ls pkj ikap vkneh ekSds ij cqykus ds fy, HkstkA dkih nsj ckn cyoUrkjke] dkukjke] /kukjke] chjcyjke] dkstkjke oxSjk vk, ftudks yk'k ds ikl NksM+dj tSlyk xkao ls fjiksVZ fy[kk dj Fkkuk vk;k gwWA esjh HkkstkbZ dks ys[kkjke us tku ls [kRe dj nh gSA dk;Zokgh djkosA fuŒvŒ HkkxhjFkjke^^ 3. The FIR no. 54 was registered at Police Station Bhojasar under Section 302 IPC against the respondent Lekharam and, thereafter Lekharam was arrested vide Ex.P/11 on 8.10.1985 in the presence of two witnesses Pratap Ram and Hajari Ram. The FIR no. 54 was registered at Police Station Bhojasar under Section 302 IPC against the respondent Lekharam and, thereafter Lekharam was arrested vide Ex.P/11 on 8.10.1985 in the presence of two witnesses Pratap Ram and Hajari Ram. After arrest, an information was given by the respondent Lekharam for recovery of Jai on 9.10.1985 at 12.30 pm and in pursuance to the said information given by the respondent Lekharam under Section 27 of the Evidence Act, Jai was recovered vide Ex.P/13 on 10.10.1985 again in the presence of two witnesses Pratapram and Hajariram. The investigating officer prepared site plan and made other necessary proceedings at the place of occurrence and the dead body of the deceased was handed over to the family members for cremation. 4. All the articles seized from the place of occurrence were sent for chemical examination to the FSL except the weapon Jai which is said to be recovered as per the information given by the respondent Lekharam. 5. After conclusion of the investigation, charge sheet was filed by the SHO Police Station, Bhojasar in the court of Munsif and Judicial Magistrate, Phalodi from where case was committed to the Sessions Court, Jodhpur for trial. 6. The learned trial court after providing an opportunity of hearing to the respondent framed charge under Section 302 IPC against the respondent and commenced the trial. 7. In support of prosecution case, statements of 7 prosecution witnesses were recorded including complainant Bhagirath (P.W—1) and P.W—3 Dr. KC Chopra. 8. The learned trial court after recording oral evidence of prosecution, proceeded to record statement of respondent Lekharam under Section 313 Cr.P.C in which the respondent gave explanation that entire prosecution case is based upon false statement of witnesses and no evidence was produced by him in defence. 9. After recording evidence of both the parties, the learned trial court finally heard the arguments and acquitted the respondent from the charges levelled against him under Section 302 IPC vide judgment dated 21.10.1987 passed in Sessions Case No. 10/86. 10. Learned Public Prosecutor submits that the finding recorded by the learned trial court is perverse because there are two eye witnesses of the incident before whom occurrence took place, therefore, there is no reason to disbelieve the testimony of these witnesses because they were present at the time of occurrence took place. 10. Learned Public Prosecutor submits that the finding recorded by the learned trial court is perverse because there are two eye witnesses of the incident before whom occurrence took place, therefore, there is no reason to disbelieve the testimony of these witnesses because they were present at the time of occurrence took place. Learned Public Prosecutor further argued that although the weapon Jai was not sent for chemical examination to the FSL, but fact remains that Smt. Gawari died due to injuries caused to her in the incident in question, therefore, it was the duty of the learned trial court to assess the entire evidence in right perspective but it has not been done, therefore, the finding given by the learned trial court for acquittal of the respondent may kindly be reversed, so also, the respondent may kindly be held guilt for committing offence under Section 302 IPC and may be punished appropriately. 11. Learned counsel appearing for the respondent vehemently argued that the entire prosecution case is based upon testimony of so called eye witnesses P.W—1 Bhagirath and P.W—2 Vishna Ram because whatever statement is given by them have not been corroborated by the medical evidence. As per learned counsel for the respondent injuries were caused by Jai, but as per the statement of Dr. KC Chopra (P.W—3) no injuries were found upon the body of the deceased which can be said to be caused by Jai, therefore, obviously, the finding of the learned trial court is based upon sound appreciation of evidence. 12. According to the learned counsel for the respondent it is a case in which the prosecution failed to prove its case beyond reasonable doubt and therefore, the instant appeal filed by the State of Rajasthan may kindly be dismissed. 13. After hearing learned counsel for the parties, we have perused the statements of all the seven witnesses, so also perused the opinion of medical board given in post mortem report (Ex.P/6) dated 7.10.1985 by Dr. KC Chopra who was one of the member of the medical board appeared as witness in the court as P.W—3. The said witness categorically stated in his statement in para no. KC Chopra who was one of the member of the medical board appeared as witness in the court as P.W—3. The said witness categorically stated in his statement in para no. 10 that none of the injuries found upon the body of the deceased were found to be caused by Jai and admittedly weapon Jai was recovered by the investigating officer, which is said to be used for inflicting injury by the respondent. The following statement is given by the P.W—3 Dr. KC Chopra in his cross-examination, which reads as under: ^^10- izfr ijh{k.k vfHk;qDr ds vf/koDrk }kjk % e`rd dh yykV ij ,d pksV Fkh] nks ugh Fkh e`rd ds lhus ij Hkh nks pksVsa ugha FkhA dksguh ds mij nkfgus gkFk ij dksbZ pksV ugha FkkA pksV laŒ1 yykV ij vkM+k izgkj djus ij vk ldrh Fkh rFkk lh/kk izgkj djus ij vk ldrh gS ysfdu ?kksaius ls ugh vk;sxhA tsbZ ds nksuks flaxks dh pksVs yykV ij ugh Fkh blh izdkj nkfguh vxz Hkqtk ij tsbZ ds nksuksa flaxks dh vyx vyx pksVs ugha FkhA blh izdkj tsbZ ds nksuksa lhaxks dh pksV lhus ij ekStwn ugha Fkh njvly ,d gh pksV FkhA lhus dh pksV bl izdkj dh Fkh fd nwljs lhaxs dh dksbZ pksV yxh gq;h ugh FkhA^^ 14. We have perused the finding of the learned trial court in para no. 20 of the judgment. The learned trial court minutely assessed the statements of eye witness P.W—1 Bhagirath and P.W—2 Vishna Ram coupled with the medical evidence of prosecution and gave finding that there is no corroboration of allegation made by the eye witnesses from the medical evidence and further observed that no explanation has been given by complainant Bhagirath for filing FIR after delay in spite of the fact that he is brother-in-law of deceased and claimed that incident took place in front of him. The learned trial court while giving aforesaid finding acquitted the respondent from the charges levelled against him under Section 302 IPC while giving benefit of doubt because prosecution has failed to prove its case beyond reasonable doubt. 15. The learned trial court while giving aforesaid finding acquitted the respondent from the charges levelled against him under Section 302 IPC while giving benefit of doubt because prosecution has failed to prove its case beyond reasonable doubt. 15. In our opinion, it is the duty of the prosecution to prove its case beyond reasonable doubt but here in this case, allegation of eye witnesses for inflicting injuries upon the body of the deceased by the weapon Jai has not been corroborated by the medical evidence, therefore, we hold that prosecution has failed to prove its case beyond reasonable doubt. 16. In view of the above, we see no reason to interfere in this cr. appeal. Hence, this cr. appeal is hereby dismissed.