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2017 DIGILAW 460 (RAJ)

STATE OF RAJASTHAN v. DHANNA RAM

2017-02-08

NAVIN SINHA, VIJAY KUMAR VYAS

body2017
JUDGMENT : NAVIN SINHA, J. 1. The Respondents stand acquitted of the charge under Section 302 and other provisions of IPC by the Sessions Judge, Sikar in Sessions Case No. 84/1983 dated 24.01.1985. The State assails the acquittal. 2. Respondent No. 1 has been deceased during the pendency of the appeal as informed by the State Counsel upon instructions received by him. The appeal therefore stands abated with regard to Respondent No. 1. 3. Learned Counsel for the State submitted that acquittal was not justified as both P.W.4 Gopal Singh and P.W.5 Raghunath Singh had specifically deposed having identified the Appellants in the light of 200 Watt bulb burning in the adjacent house of Jesaram which has not been appreciated properly. The allegations were specific that Respondent Dhanna Ram assaulted the deceased with a farsi while Bajranga assaulted with a lathi and others were present. Blood has been found on the farsi recovered on the confession of Respondent Dhanna Ram confirmed in FSL Report Exhibit P/19. Whether Dhanna Ram assaulted with a sharp edge or the blunt edge is inconsequential so long as he has been identified as an assailant in the light of the bulb. 4. Counsel for the Respondents opposing the appeal submitted that the site map prepared on 17.07.1983 does not mention the house of Jesaram much less the location where the bulb was burning. P.W.8 Prabhu Singh, S.H.O. has tried to improve upon the site map three months later on 11.10.1983 by adding that a bulb was burning which was throwing light on the house of the prosecution witnesses. It is only an attempt to cover up the lapses in investigation. The benefit must go to the Respondents. None of the witnesses to the site Map Exhibit P/3 have been examined. P.W.6 Lichmaram who is a seizure witness has deposed that there were no blood stains on the farsi alleged to have been recovered on the confession of Respondent Dhanna Ram. P.W.8 Prabhu Singh, SHO has acknowledged having inserted a note in the site map three months later. The acquittal calls for no interference. 5. We have considered the submissions on behalf of the parties. 6. P.W.8 Prabhu Singh, SHO has acknowledged having inserted a note in the site map three months later. The acquittal calls for no interference. 5. We have considered the submissions on behalf of the parties. 6. The entire case of the prosecution is based on a 200 watt bulb light alleged to have been emitting sufficient light for identification of the Respondents at the dead of night when the occurrence took place between 2.00 A.M. and 2.30 A.M. There is however no positive evidence put forth by the prosecution with regard to the wattage of the bulb much less has the bulb been seized. If that were not enough, the site map Exhibit P/3 prepared by PW-8 Prabhu Singh, SHO on 17.07.1983 does not demonstrate the location of the house of Jeisaram or where the bulb is alleged to have been burning much less does it state the place where the bulb was fixed and emitting light which was travelling upto any specified distance to facilitate identification. The witness unfortunately tried to improve upon the site map by making insertions on 11.10.1983 nearly three months later with regard to the source of light. The ASP, who accompanied him has not even been examined. 7. The injuries found on the deceased are lacerated wounds. A farsi is a sharp cutting weapon. The prosecution has offered no evidence with regard to the absence of any incised wounds on the deceased. Recovery on confession is only corroborative evidence and cannot be substantive material for conviction. Even that goes into doubt in the present case in view of the deposition of the seizure witness that there were no blood stains on the farsi allegedly recovered on the confession of Respondent Dhannaram. 8. An order of acquittal is not to be lightly interfered with unless there has been gross mis-appreciation of evidence leading to serious miscarriage of justice. If there is any material on record which establishes innocence and on which the judgment can be sustained, the acquittal calls for no interference. 9. 8. An order of acquittal is not to be lightly interfered with unless there has been gross mis-appreciation of evidence leading to serious miscarriage of justice. If there is any material on record which establishes innocence and on which the judgment can be sustained, the acquittal calls for no interference. 9. In absence of any evidence led by the prosecution with regard to the wattage of the bulb, the height at which it may have been fixed, the distance to which the light may have been emitted and which covered the place of occurrence, it becomes difficult to accept the prosecution theory of identification in the darkness of night by reason of the light emitting from the bulb. It is the specific case of the prosecution that identification was possible only due to the light of bulb and not by moon light or silhouette etc. For that reason, in the absence of any evidence with regard to the location, source and distance of the light travelled, we find no reason to interfere with the acquittal. The appeal is dismissed. 10. No-one has appeared to press S.B. Criminal Revision Petition No. 75/1985, which is also dismissed for non-prosecution.