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2023 DIGILAW 1636 (RAJ)

Magniram S/o. Ganesh v. State

2023-09-02

RAJENDRA PRAKASH SONI

body2023
ORDER : 1. The petitioners convicted by Court of Judicial Magistrate (First Class), Rashmi, District Chittorgarh in Criminal Regular Case No.36 of 1998 vide judgment dated 07.09.2001 and his conviction and sentence having been confirmed vide judgment dated 10.09.2002 by the appellate court of Additional Sessions Judge No.1 Chittorgarh in Criminal Appeal No.56 of 2002 punishable under Section 341, 323 read with 34 and 394 read with 34 of the Indian Penal Code, 1860 (for short “the IPC”) has filed the present revision petition before this Court. 2. The facts as available on record are that a First Information Report (ExP-1) dated 10.01.1998 was registered by Complainant Ogar Singh (PW-1) at Police Station Rashmi, District Chittorgarh to the effect that on 08.01.1998, while returning after purchasing 2 Kgs. of fishes from Hafiz Khan at Arani Pond, complainant and his companion Bhagwat Singh were intercepted by Ganesh, Magniram and Radheyshyam near wall of the pond. They demanded the fishes, but complainant refused to hand it over. On this, Ganesh Jat snatched the fishes from complainant, all the three accused beat the complainant and his friend Bhagwat Singh with bamboo sticks. Rs.5,000/- were also snatched from the pocket of pant of the complainant. Ganesh Jat also had a knife. Due to beating, both of them received many injuries. Hafiz Khan and Banshilal intervened and rescued them. Thereafter both of them returned to their village, but due to fever caused by beating they could not lodge FIR on time. 3. Charge-sheet was filed against all the three accused after completion of the investigation. Accused Ganesh died during the trial and accordingly the proceedings qua him stand abated. 4. The prosecution produced as many as 12 witnesses in support of the case. After trial, the trial court convicted Magniram and Radheyshyam for offence punishable under Section 341, 323 read with 34 and 394 read with 34 of the IPC and sentenced them to undergo imprisonment for a period of 7 days, 1 month and 6 month respectively for said offences along with fine and default clause. 5. In appeal, conviction and sentence awarded by the trial court was upheld. 6. Learned counsel for the petitioners has raised the argument that the story built by the prosecution on the basis of the complaint is concocted. In fact no such incident had taken place. 5. In appeal, conviction and sentence awarded by the trial court was upheld. 6. Learned counsel for the petitioners has raised the argument that the story built by the prosecution on the basis of the complaint is concocted. In fact no such incident had taken place. It is alleged that there are serious defects and anomalies in deposition of complainant Ogar Singh (PW-1) and both independent eye-witnesses Banshilal S/o Shivji (PW-8) and Hafiz Khan (PW-10), who did not support the prosecution version. 7. Witness Bherulal (PW-6) and Bhagwanlal (PW-7) in their statements recorded in the court denied recovery of alleged looted cash amount of offence from Magniram in their presence. They were declared hostile. Similar was position in statements of Ramlal (PW-) and Pappu (PW-12), who also did not support prosecution version. They were also declared hostile and cross-examined by the prosecution. 8. As per the prosecution case, accused Ganesh Jat was carrying a knife, however, there was nothing either in the complaint or in the evidence brought on record that the same was ever used and it has not even been recovered during the trial. Further, recovery of Rs.2,000/- at the instance of accused Magniram was also seriously doubtful as both witnesses of said recovery have been declared hostile and no investigation was carried out recording the remaining looted cash amount. 9. It is further argued that both the courts below have failed to appreciate evidence in proper perspective and have wrongly recorded conviction. Hence, he prayed to set aside the judgment of conviction and sentences imposed by the courts below. Lastly, it is prayed that in view of legal infirmities in judgment of the trial court as also the appellate court, the petitioners are entitled to be acquitted, he contended. 10. On the other hand, learned Public Prosecutor submitted that entire prosecution version has been duly supported by the witnesses produced. Merely, because some of them were won over and had to be declared hostile will not demolish case of the prosecution. There are concurrent finding of facts recorded by the courts below and it does not call for interference by this Court. 11. Heard learned counsel for the parties and perused the relevant referred record. 12. Merely, because some of them were won over and had to be declared hostile will not demolish case of the prosecution. There are concurrent finding of facts recorded by the courts below and it does not call for interference by this Court. 11. Heard learned counsel for the parties and perused the relevant referred record. 12. The prosecution case rests on testimony of complainant Ogar Singh (PW-1), Bhagwat Singh (PW-2) a friend of complainant who was accompanying him, eye-witnesses Bhanshilal S/o Shivji (PW8) and Hafiz Khan (PW-10), recovery witnesses of looted cash amount Bherulal (PW-6) and Bhagwanlal (PW-7) as well as medical evidence. 13. The complainant Ogar Singh, testified in court corroborating the facts outlined in the First Information Report as well as statement given under Section 161 of Criminal Procedure Code. Bhagwat Singh who was with the complainant at the time of occurrence while appearing as (PW-2) deposed in sync with complainant. Both of them were injured as well as victims of the incident. 14. This incident was said to be occurred near wall of Arani Pond. The two independent witnesses namely Hafiz Khan (PW-10) and Banshilal S/o Shivji (PW-8), both being fishing contractors and fish sellers at Arani Pond were natural witnesses of the occurrence. 15. According to the complainant and the prosecution, these two independent eye-witnesses had reached the scene of crime for help, yet they both did not support the prosecution version and thus, they were confronted with their previous statement by the Prosecutor. 16. Hafiz Khan (PW-10) turned hostile and in his statement, he stated that he is not aware if there was any incident of assault with Ogar Singh and Bhagwat Singh; he is not aware that accused assaulted Ogar Singh and Bhagwat Singh; he is not aware of Magniram snatching Rs.5,000/- from the pocket of Ogar singh. No allegations were made against the petitioners by him. Thus, presence of petitioners at crime site becomes highly doubtful. 17. The other eye-witnesses Banshilal S/o Shivji (PW-8) also turned hostile. He deposed before the court that he and Hafiz Khan had a contract for fishing at Arani Pond; both of them were doing business together; he does not know Ogar Singh and Bhagwat Singh. He also stated that he does not recognize accused Magniram, Ganesh Jat and Radheyshyam. 17. The other eye-witnesses Banshilal S/o Shivji (PW-8) also turned hostile. He deposed before the court that he and Hafiz Khan had a contract for fishing at Arani Pond; both of them were doing business together; he does not know Ogar Singh and Bhagwat Singh. He also stated that he does not recognize accused Magniram, Ganesh Jat and Radheyshyam. He has clearly denied statements given under Section 161 of the Criminal Procedure Code to Police during the investigation. Thus, there are serious defects and anomalies in the deposition of the complainant and alleged independent eye-witnesses. Both independent eye-witnesses did not support the prosecution version. 18. Bherulal (PW-6) and Bhagwanlal (PW-7) in their statements recorded in the court, denied recovery of any cash amount of offence from Magniram in their presence. They were also declared hostile. Even in his cross-examination, Bherulal deposed that he did not go to the house of Magniram; his signature was got obtained by the Police at the bus stand; He does not know how to read and only knows how to sign. Thus, recovery of alleged looted cash money was also seriously doubtful. 19. Similar was the position in the statements of both witnesses of site plan Ramlal (PW-9) and Pappu (PW-12), they also did not support the prosecution version and have been declared hostile and cross-examined by the prosecution. Therefore, the prosecution was completely unsuccessful in proving the crime scene. 20. As far as the delay in lodging of the FIR is concerned, mere delay in lodging the FIR is not fatal, if the delay is satisfactorily explained. The reason given for the delay in filing report in this case was that complainant had fallen ill with a fever after the incident. Therefore, he filed the report after recovering. In the opinion of this Court, said explanation cannot be considered satisfactory because when the complainant was injured also, he was bound to have consulted a doctor and at that time he could also have got treatment for his so called fever. Bhagwat Singh who was also with the complainant at the time of occurrence, could also have filed the FIR which he did not do, even though he was also an injured and a victim of the alleged incident. 21. The First Information Report was lodged belatedly two days after the incident. Bhagwat Singh who was also with the complainant at the time of occurrence, could also have filed the FIR which he did not do, even though he was also an injured and a victim of the alleged incident. 21. The First Information Report was lodged belatedly two days after the incident. Thus, giving sufficient time to weave the story which did not even show genesis of the occurrence. Therefore, lodging of complaint with two days delay in this case is fatal to the case of prosecution as delay is not properly and satisfactorily explained. 22. As per the version given by the complainant, the case sought to be made out is under Section 341, 323 read with 34 and 394 read with 34 of the IPC. One of the accused, as per the version of the complainant, was carrying a knife with him, however there is nothing on record either in the form of statements of witnesses or even in medical report that knife was ever used or recovered. 23. It is well settled that trustworthiness of case of prosecution is to be determined on the basis of material on record and on appreciation of ocular as well as documentary evidence adduced by the prosecution. The medical evidence as to the injuries, though a very useful guiding factor, yet it is not conclusive and has to be considered along with other cogent evidence. In the present case, the medical evidence in respect of injuries is not in consonance with ocular evidence deposed on behalf of prosecution. I, therefore, find that evidence of Dr. K.P. Khandal (PW.4) was not in conformity with the oral evidence available on the record. 24. The statement of complainant Ogar Singh and his friend Bhagwat Singh are not found credible and trustworthy for want of corroboration by both the independent eye-witnesses and recovery of alleged looted cash amount. The ocular testimony of the witnesses has greater evidentiary value viz-a-viz medical evidence. I am of affirmed view that the evidence of Ogar Singh and Bhagwat Singh is not safe to place reliance upon, therefore the medical opinion cannot be spelled as a conclusive one. 25. The ocular testimony of the witnesses has greater evidentiary value viz-a-viz medical evidence. I am of affirmed view that the evidence of Ogar Singh and Bhagwat Singh is not safe to place reliance upon, therefore the medical opinion cannot be spelled as a conclusive one. 25. In view of the concealment of genesis of occurrence by complainant and the fact that FIR was registered belatedly, I am of the considered opinion that implicit reliance cannot be placed on complainant as well as Bhagwat Singh and conviction of the petitioners cannot be based solely on their testimony. 26. All the version of the prosecution namely, seeing the incident by independent eye-witnesses, recovery of alleged looted cash amount from possession of Magniram and not proving of scene of incident, demolish the case of the prosecution. 27. From the aforesaid material on record, presence of the petitioners at the scene of crime and recovery of cash amount from Magniram become highly doubtful and guilt of the petitioners having not been proved beyond reasonable doubt. Thus, granting benefit of doubt, conviction and sentence cannot be upheld. Therefore, both the petitioners are entitled to be acquitted of the offences charged with. 28. In view of this, conviction of both the petitioners cannot be sustained. As such, I am of the view that it is a fit case, wherein this Court should interfere into the impugned orders as passed by the learned trial court as well as learned appellate court. 29. Accordingly, the Revision Petition is allowed while setting aside both the impugned judgments of conviction and order on sentence passed by the learned appellate court as well as learned trial court. Bail bonds submitted by the petitioners stand cancelled. 30. Revision Petition is disposed of accordingly.