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2023 DIGILAW 1816 (RAJ)

State Of Rajasthan v. Jagdish, son of Harjiram

2023-09-22

BHUWAN GOYAL, PANKAJ BHANDARI

body2023
JUDGMENT : (Pankaj Bhandari, J.) 1. The appellant – State has preferred the instant appeal aggrieved by the judgment of conviction and order of sentence dated 16.10.1998 passed by the Additional District & Sessions Judge, Rajgarh, Alwar, whereby the accused respondents- Jagdish & Ramcharan have been acquitted for the offence under Sections 302, 447, 148, 147 of the Indian Penal Code (hereinafter referred to as “IPC”) and accused respondents - Kishorilal, Danaram, Giriraj and Dholya have been acquitted for the offence under Sections 147, 148, 447, 302/149 of IPC. 2. Succinctly stated the facts of the case are that on 30.07.1993 at about 12:15 am, complainant-Rang Lal (PW-4) lodged a written report (Exhibit-P1) at Police Station, Rajgarh, District Alwar. On the said report, the police registered FIR No.216/1993 on 31.07.1993 (Exhibit-P19). It was mentioned in the written report that younger brother of the complainant – Moharu Lal was a School Teacher. At about 1:30 pm on 30.07.1993, he was returning from the school, son of younger brother – Harkesh came to his farm and told him that Jagdish, Ramcharan, Kishori, Dholya, Danaram and Giriraj were beating his father. He also mentioned that Jagdish had given a blow of pharsi on the head of his father and others were beating with lathis. It was further mentioned in the report that there was some dispute with regard to the right of passage. Jagdish denied access to Moharu Lal, on which, Moharu Lal said that this passage was very old and being used by the villagers, on which, the dispute started. The police, after due investigation, filed charge-sheet against Jagdish, Kishorilal, Danaram, Giriraj and Dholya for offence under Sections 147, 148, 302, 447, 149 of IPC. After hearing the charge arguments, charges were framed against the accused respondents. At the stage of prosecution evidence, after statements of 8 witnesses were recorded, an application was filed by the learned Public Prosecutor under Section 319 Cr.P.C. for impleading Ramcharan as an accused. The said application was dismissed by the learned Trial Court, however, in the revision, the High Court directed to proceed against accused Ramcharan. Accused - Ramcharan surrendered before the Court on 28.02.1998. Witnesses were re-examined. As many as 22 witnesses were examined and 30 documents were exhibited on behalf of the prosecution. The said application was dismissed by the learned Trial Court, however, in the revision, the High Court directed to proceed against accused Ramcharan. Accused - Ramcharan surrendered before the Court on 28.02.1998. Witnesses were re-examined. As many as 22 witnesses were examined and 30 documents were exhibited on behalf of the prosecution. The explanation of the accused-respondents was recorded under Section 313 Cr.P.C. wherein they denied the allegations and stated that they have been falsely implicated. In defence, 1 witness was examined and 6 documents were exhibited. The learned Trial Court after hearing the arguments from both the sides, has acquitted all the accused-respondents from all the charges. 3. During the pendency of the appeal, accused respondent No.1 – Jagdish and respondent No.4 – Giriraj had expired and therefore, the appeal was abated against respondent Nos.1 and 4 – Jagdish and Giriraj and same now survives only against accused respondent Nos.2, 3, 5 & 6. 4. It is contended by the learned Additional Government Advocate that the learned Trial Court has erred in disbelieving the statement of eye-witnesses - Harkesh (PW-1), Brahma Devi (PW2), Pooran (PW-6) and Dev Karan (PW-7). It is also contended that Bhoti (PW-3), wife of the deceased, was also an eye-witness. Their testimony is trustworthy and the same matches with the medical evidence. It is further contended that the learned Trial Court has erred in coming to the conclusion that there is a delay in lodging the FIR. It is argued that the police station was far away from the village and the place where the incident took place. The Court also did not consider the fact that the complainant had informed the police via mobile phone. 5. It is contended that the learned Trial Court has not placed reliance on the FSL Report wherein, human blood was said to be detected on the pharsi as well as on the clothes of the deceased. It is also contended that the Court below has not considered the evidence of Dr. K.M. Gupta (PW-21), who conducted the postmortem of the deceased and who stated that the injury caused to the deceased could be caused by pharsi and thus, he prayed to allow the present appeal. 6. On the other hand, learned counsel appearing for the accused respondents has supported the impugned judgment and order dated 16.10.1998 passed by the learned Trial Court. 6. On the other hand, learned counsel appearing for the accused respondents has supported the impugned judgment and order dated 16.10.1998 passed by the learned Trial Court. They have argued that the witnesses are not reliable witnesses. They have given different versions before the Court and hence, they are not trustworthy witnesses. 7. We have considered the contentions raised by counsel for the parties and have carefully perused the evidence available on record. 8. Pooran (PW-6) and Dev Karan (PW-7), who are residents of the village, have deposed before the Court that deceased – Moharu Lal wanted to take his cattle through the boundary of Jagdish, on which, Jagdish refused and the dispute started. As per these witnesses, Jagdish, Kishorilal, Dholya, Moti and 4 other women were present. Pooran (PW-6) has stated that when Moharu fell down, he ran from the place of occurrence. In the cross-examination, this witness has admitted that in Exhibit-D3, portion C to D and portion A to B were not given by him. The fact that Jagdish gave a blow on the head of Moharu is also not there in Exhibit-D3, but as per this witness, he informed the police about the same. The statement of this witness is a complete improvement over the statement given by him to the police (Exhibit-D3). In Exhibit-D3, in portion C to D, this witness has mentioned that some altercation took place between Jagdish and deceased and thereafter, this witness and his brother went to their farm. In the statement, this witness has mentioned that at 3:30 pm, they returned from the farm and found Moharu lying injured in his field. Dev Karan (PW-7) has also stated that Jagdish was stopping the deceased from passing through his passage, on which, the dispute took place. In the cross-examination, this witness has admitted that in Exhibit-D4, portion A to B and portion C to D were not given by him. In Exhibit-D4, in portion C to D, this witness has mentioned that a dispute took place, thereafter, he along with his brother Pooran (PW-6) went to their field and when they returned at 3:30 pm, they found Moharu lying injured in the field. This witness has admitted that he told the police that at around 2:30 pm, Moharu, his son Harkesh (PW-1) and his daughter–Brahma Devi (PW-2) went to their field with their buffaloes. 9. This witness has admitted that he told the police that at around 2:30 pm, Moharu, his son Harkesh (PW-1) and his daughter–Brahma Devi (PW-2) went to their field with their buffaloes. 9. On careful scrutiny of this evidence, it is clear that both these witnesses initially informed the police that they only heard the deceased fighting with Jagdish with regard to right of passage in the field. They have clearly mentioned in their statements that they left the place and when they returned at 3:30 pm, they found Moharu lying injured. Thus, these two witnesses cannot be considered to be eye-witnesses. 10. The other witnesses in this case are Harkesh (PW-1), son of deceased; Brahma Devi (PW-2) daughter of deceased and Bhoti (PW-3) wife of deceased. Harkesh (PW-1), who is a child witness, has stated that Jagdish gave a blow with pharsi on the back side of the head of the deceased. Thereafter, all the accused - Ramcharan, Kishori, Dholya, Giriraj, Dana gave blows with lathis to the deceased. After Ramcharan was added as an accused, statement of this witness was again recorded wherein he has stated that Ramcharan gave a blow with a pharsi on the head of his father. He has also stated that Moti also gave blow with pharsi to his father. This witness specified that his father (deceased) had sustained a total of 4 blows of pharsi on his head, out of which, 2 were given by Ramcharan. When the earlier statement was shown to the witness, the witness stated that in his earlier court statement also, he had mentioned that Ramcharan had given a pharsi blow to his father. Brahma Devi (PW-2) in her earlier statement before the Court mentioned that Jagdish gave a pharsi blow to her father on the back of his head and thereafter, all the accused - Ramcharan, Kishori, Dholya, Giriraj, Dana gave blows with lathis to the deceased. This witness was again examined and in her statement, she has stated that Ramcharan gave a blow with pharsi on the head of the deceased and another blow on his shoulder and thereafter, Moti also gave a blow with pharsi and other accused gave blows with lathis and pharsis. In the cross-examination, this witness has denied the portion given in ExhibitD6, wherein it was mentioned that Jagdish gave pharsi blow on the head of the deceased. In the cross-examination, this witness has denied the portion given in ExhibitD6, wherein it was mentioned that Jagdish gave pharsi blow on the head of the deceased. She has clearly stated that Ramcharan gave a blow of pharsi on the shoulder and head of the deceased. She did not give any explanation with regard to her earlier statement given before the Court in which she has mentioned that Jagdish had given a blow on the head of the deceased. Bhoti (PW3) has admitted in her cross-examination that she did not went with her husband and children to graze the buffaloes. This witness has exaggerated her version and stated that each accused gave 100-100 lathi blows to the deceased, however, in re-examination, she has mentioned that she was not in her senses and she did not show her injuries to the police. 11. As far as testimony of these 3 witnesses are concerned, Harkesh (PW-1) in his initial court statement mentioned that Jagdish gave a blow with pharsi on the head of the deceased. Similar was the statement of Brahma Devi (PW-2). When both these witnesses were re-examined after Ramcharan was added as an accused, they mentioned that Ramcharan gave blow with pharsi on the head of the deceased and they did not mention that the blow was caused by Jagdish. They also deposed that Moti also gave a blow with pharsi to their father-deceased. Moti is not an accused in this case and these witnesses have on oath testified before the Court and in their initial statements, they have assigned the head injury to Jagdish, however, in their subsequent statements, they have not levelled any allegation against Jagdish, but have assigned the head injury to Ramcharan and Moti. Witnesses, who depose on oath before the Court and give different versions on different occasions before the Court, are not trustworthy and reliable witnesses. None of these witnesses can be considered to be eye-witnesses for the very reason that they have given different versions before the Court on oath with regard to the author of the fatal blow. Hence, from the entire evidence, it can be deduced that Pooran (PW-6) & Dev Karan (PW-7), who are projected as eye-witnesses and Harkesh (PW-1), Brahma Devi (PW-2) & Bhoti (PW-3) are not trustworthy and reliable witnesses. Hence, from the entire evidence, it can be deduced that Pooran (PW-6) & Dev Karan (PW-7), who are projected as eye-witnesses and Harkesh (PW-1), Brahma Devi (PW-2) & Bhoti (PW-3) are not trustworthy and reliable witnesses. Further, as per the subsequent statements of above 3 witnesses, Ramcharan inflicted pharsi blow to the deceased whereas no weapon has been recovered from Ramcharan and the said pharsi was recovered from Jagdish, against whom, no allegation of inflicting injury on the deceased has been made. 12. Learned Trial Court has clearly appreciated the evidence and has not erred in arriving at the finding of accused being not guilty. From the evidence that have been produced before the Court below, it is evident that none of the witnesses had witnessed the incident and the learned Trial Court has thus not committed any error in acquitting the accused respondents and therefore, we do not find any force in the present appeal. Thus, the appeal, being devoid of merits, is, accordingly, dismissed.