Research › Search › Judgment

Rajasthan High Court · body

2020 DIGILAW 64 (RAJ)

Om Singh @ Om Prakash v. State of Rajasthan

2020-01-06

SANDEEP MEHTA

body2020
JUDGMENT Sandeep Mehta, J. - Heard learned counsel for the appellant, learned Public Prosecutor and learned counsel for the complainant and perused the material available on record. 2. The instant appeal under Section 374 (2) Cr.P.C has been preferred by the appellant Om Singh @ Om Prakash being aggrieved of the judgment dated 28.02.1992 passed by learned District & Sessions Judge, Bikaner in Sessions Case No.123/90 whereby the learned trial court convicted and sentenced the appellant as below:- Offence Under Section Imprisonment Fine Sentence in default of fine 326 IPC 2 years R.I. Rs.100/- 3 months SI 323 IPC 3 months R.I. Rs.100/- 1 months SI 3. By the same judgment, two co-accused Gopal Singh and Prahlad Singh were acquitted of the charges by giving them the benefit of doubt. It may be stated here that originally the trial court framed charges under Section 307 read with Section 34 and 323 IPC against all the three accused persons. However, the two co-accused Gopal Singh and the Prahlad Singh were acquitted from the charges, and the appellant was convicted and sentenced as above. 4. The short submission of Shri Ashok Upadhyay, learned counsel representing the appellant was that the incident took place over a trivial matter of construction of a gate. The appellant and the injured are neighbours. He drew the Court s attention to the statement of the injured PW.5 Baburam, PW.6 Leelawati, PW.7 Bharat Bhushan, the first informant & PW.2 Dr.P.N. Mathur and contended that there are grave contradictions in the statements of the eyewitnesses regarding the identity of the accused who caused the grievous injuries to the injured. He submitted that as per the statement of the Medical Officer, one cut wound measuring 6.5 cm x 0.8 cm was noticed on the parietal region of the injured Baburam (PW.5). While deposing on oath, injured Baburam (PW.5) categorically stated that initially a man holding an axe gave 2-3 blows thereof on his head and that the appellant also caused a blow of a Karni (a flat plated implement used in construction). Shri Ashok Upadhyay, Advocate pointed out from the prosecution evidence that identity of the person who inflicted the axe blow could not be fixed. A Karni is a tool used in construction and the blow thereof cannot result into a clean cut wound which was noticed by the doctor on the parietal region of the injured. Shri Ashok Upadhyay, Advocate pointed out from the prosecution evidence that identity of the person who inflicted the axe blow could not be fixed. A Karni is a tool used in construction and the blow thereof cannot result into a clean cut wound which was noticed by the doctor on the parietal region of the injured. He thus urged that the conviction of the appellant as recorded by the trial court is absolutely illegal and contrary to the facts and hence, the same deserves to be set aside while accepting the appeal. 5. Per contra, learned Public Prosecutor and learned counsel for the complainant vehemently and fervently opposed the submissions advanced by appellant s counsel and urged that the appellant was correctly identified by the injured Baburam (PW.5) and the eye-witnesses Leelawati (PW.6) and Bharat Bhushan (PW.7) as being the person who inflicted a blow of Karni on the head of the injured Baburam. This allegation is duly corroborated by the medical evidence. They thus urge that the conviction of the appellant, as recorded by the trial court deserves to be affirmed. 6. I have given my thoughtful consideration to the submissions advanced at Bar and have gone through the impugned judgment and minutely re-appreciated the evidence available on record. 7. It is a categoric version of the injured Baburam (PW.5) that he was initially inflicted 2-3 axe blows on the head by a man whom he could not identify. PW.7 Bharat Bhurat, the first informant alleged that Gopal Singh was the person having the axe and he inflicted two blows thereof on the head of Baburam. The trial court framed charges against all the three accused for the offence under Section 307/34 IPC. However, two co-accused persons viz. Gopal Singh and Prahlad Singh were acquitted in toto. Though no pertinent finding was recorded by the trial court regarding the appellant on the charge under Section 307/34 of the IPC but manifestly with the acquittal of the other two co-accused from the said charge acquittal of the appellant would be a deemed consequence. Thus, the appellant could at best be held responsible for the individual act attributed to him by witnesses. Thus, the appellant could at best be held responsible for the individual act attributed to him by witnesses. As has been discussed above, the injured as well as the eyewitness Bharat Bhushan (PW.7) have clearly deposed that initially repeated axe blows were given on the head of Baburam by some other man and thereafter the accused-appellant inflicted the blow by Karni on the head region of Baburam. However, the said allegation is not corroborated and is rather contradicted by the medical evidence as deposed by PW.2 Dr. P.N. Mathur, who noticed only one injury by sharp weapon on the head of the injured. 8. In addition thereto, there is an allegation in the prosecution evidence against the appellant that he bit the thumb of the injured Bharat Bhushan. However, the medical officer PW.3 Dr. Mahesh Chandra Soni who carried out the medical examination of Bharat Bhushan did not state that any of the simple abrasions, noticed on the person of Bharat Bhushan could be as a result of the teeth bite. Thus, the evidence of the eyewitnesses is totally contradicted by the medical testimony. 9. In this background, I am of the firm opinion that the conviction of the appellant as recorded by the trial court vide impugned judgment dated 28.02.1992 is contrary to facts and cannot be sustained. Accordingly, the appeal deserve to be and is hereby allowed. The impugned judgment dated 28.02.1992 passed by the learned Addl. District & Sessions Judge, Bikaner in Sessions Case No.123/90 is set aside. The accused appellant Om Singh @ Om Prakash is acquitted of the charges. He is on bail. He need not surrender. His bail bonds are discharged. 10. However, keeping in view the provisions of Section 437-A Cr.P.C., the accused appellant is directed to furnish a personal bond in the sum of Rs.15,000/- and a surety bond in the like amount before the learned trial court which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court. 11. Record be returned to the trial court forthwith.