Research › Search › Judgment

Rajasthan High Court · body

2023 DIGILAW 581 (RAJ)

Kanhaiya Lal v. State Of Rajasthan

2023-02-21

ASHUTOSH KUMAR, PANKAJ BHANDARI

body2023
ORDER : (Ashutosh Kumar, J.) The present appeals have been preferred against the common judgment and order dated 28.03.2019 passed by learned Special Judge, NDPS cases, Jhalawar in Sessions Case No.14/2017, therefore these appeals are being disposed by this single judgment. 2. Learned trial Court vide its judgment has convicted and sentenced the appellant-Kanhaiya Lal for the offences under Sectons148 and 302 IPC and other appellants Heera Lal, Hukam Chand, Surajmal and Satyawan for the offences under Sections 148, 302 read with Section 149 IPC as under: Under Section 148 IPC:- 3 years R.I. and fine of Rs.5,000/- each, in default of payment of fine further 6 months additional R.I. to each accused-appellant; Appellant-Kanhaiya Lal under Section 302 IPC and appellants Heera Lal, Hukam Chand and Satyawan under Sections 302/149 IPC:- Imprisonment for life and fine of Rs.1,00,000/- each, in default of payment of fine further 2 years additional R.I. to each accused-appellant; 3. In the present case, complainant-Gyan Bai submitted a written complaint on 14.10.2011 to S.H.O., Sarolakala, District Jhalawar, stating therein that on 14.10.2011 at 06.30 a.m., her husband-Panna Lal was going on motorcycle from his house towards temple in the village; near the temple, Heera Lal, Surajmal, Satyawan, Kanhaiya Lal and Hukam Chand were sitting armed with weapons. All the accused persons attacked her husband-Panna Lal with sharp edged weapons and killed him in her presence. 4. On this complaint, an FIR No.174/2011 was registered under Section 143 and 302 IPC. After investigation, charge-sheet was submitted before the Court of Judicial Magistrate, Khanpur, District Jhalawar against the accused Kanhaiya Lal and Hukam Chand for the offence punishable under section 302 read with section 34 IPC. 5. The case was committed for trial. During trial, after recording the evidence of some of the prosecution witnesses, upon application of prosecution under section 319 CrPC, cognizance against Heera Lal, Surajmal and Satyawan was also taken for the offences under section 302 IPC. 6. Accused-Appellant Kanhaiya Lal was charged with the offences punishable under section 302 and 148 IPC whereas, all other accused persons were charged with section 148 and 302 read with section 149 IPC. 7. On behalf of the prosecution, oral evidence of PW-1 to PW-47 was recorded and a total of 59 documents: Ex. P-1 to Ex. P-59 were exhibited. 6. Accused-Appellant Kanhaiya Lal was charged with the offences punishable under section 302 and 148 IPC whereas, all other accused persons were charged with section 148 and 302 read with section 149 IPC. 7. On behalf of the prosecution, oral evidence of PW-1 to PW-47 was recorded and a total of 59 documents: Ex. P-1 to Ex. P-59 were exhibited. Thereafter, the accused-Appellants were examined under Section 313 Cr.P.C. Four witnesses: DW-1 to DW-4 were examined on behalf of the defense. Defense has also relied on four documents Ex. D-1 to Ex. D-4. 8. After hearing both the parties, learned trial Court has passed the judgment convicting and punishing the accused-appellants as stated here-in-above. 9. Learned counsels for the appellants contend that prosecution has completely failed to prove the charges leveled against the accused-appellant beyond reasonable doubt; they also aver that learned trial Court has convicted and sentenced the accused-appellants merely on the basis of surmises and conjunctures; they also claim that all the independent eye-witnesses produced during trial on behalf of the prosecution, have turned hostile and have not supported the prosecution story. Learned counsels for the appellants argue that PW-13: Gyan Bai, who is the wife of the deceased, is an interested witness. Learned counsels for the appellants argue that the statements of the complainant (and sole eye witness)-Gyan Bai have been full of contradictions. In their opinion, learned trial Court has erred in believing and relying on the untrustworthy and contradictory evidence given by sole interested eye-witness of this case. Learned counsels for the appellants contend that, in this case, the motorcycle of the deceased dashed against some buffalo, due to which the deceased fell down from motorcycle, got injured and unfortunately died. Contention of the defense is that the above fact has been proved by almost all the eye witnesses produced on behalf of the prosecution, but learned trial Court did not consider this fact to be true. To nullify the prosecution case, the counsel for the appellants argued that PW-13 Gyan Bai in her evidence has stated that one of the accused caused an injury on the back of deceased by sharp edged weapon i.e. Kulhari, but in reality no such sharp edged injury has been found on the back of deceased. To nullify the prosecution case, the counsel for the appellants argued that PW-13 Gyan Bai in her evidence has stated that one of the accused caused an injury on the back of deceased by sharp edged weapon i.e. Kulhari, but in reality no such sharp edged injury has been found on the back of deceased. They pray that the whole story of the prosecution is doubtful, therefore, the appeals be allowed and the appellants be acquitted from the charges for which they have been convicted. 10. On the other hand, learned counsel for the respondents along with learned counsel for the complainant supported the judgment passed by the trial Court and submitted that there is no force in the appeal and the same must be dismissed. 11. The complainant-Gyan Bai in the FIR: exhibit P-20, has stated that her husband, Panna Lal, was going by motorcycle to the temple, where the accused persons were already sitting, armed with sharp edged weapons. She claims that near the temple, accused persons attacked her husband with sharp edged weapons and killed him. Contrary to this, in the complaint made by Gyan Bai, exhibit D-2, which was made to Judicial Magistrate, Khanpur, she has stated that when her husband left the house on motorcycle, accused Hukam Chand, armed with Gandasi, followed the deceased, on seeing this, under apprehension, the complainant also followed Hukum Chand. In her complaint she further states that when she reached the temple, she saw that her husband Panna Lal was surrounded by the accused persons and all were causing injuries with sharp edged weapons to Panna Lal. 12. Upon the perusal of the two documents Ex. P-20 and Ex. D-2, it is quite evident that there are inconsistencies in the two versions of events which lead to the initiation of the incident. The author of both these documents is the same complainant Gyan Bai. 13. In her Court statement, PW-13: Gyan Bai has stated that accused Hukam Chand inflicted injury on the back of her husband by Gandasi, but as per the postmortem report exhibit P-41, no injury with sharp edged weapon has been found on the back of the deceased. 14. The incident of this case is said to have taken place near the temple situated in the village. As per the site plan:exhibit P-15, the place of occurrence is a densely populated area surrounded by many houses. 14. The incident of this case is said to have taken place near the temple situated in the village. As per the site plan:exhibit P-15, the place of occurrence is a densely populated area surrounded by many houses. The time of occurrence, is about 6.30 a.m., but no independent witness has supported the prosecution story. It is noteworthy that in the FIR:exhibit P-20, the complainant herself has stated that the occurrence was seen by the residents of the locality. 15. Apart from PW-13 Gyan Bai, two witnesses PW-18 Urmila Bai and PW-39 Madi Bai have been produced by the prosecution. PW- 18 Urmila Bai is wife of younger brother of the deceased and PW- 39 Madi Bai is mother of the deceased therefore, these two witnesses are also interested witnesses being the near relatives of the deceased. Though PW-18 in her examination-in-chief has stated that accused persons have killed the deceased but in her cross-examination she has admitted that she did not witness anyone committing the offence. Likewise, PW-39: Madi Bai, mother of the deceased has stated in her examination-in-chief that when she reached at the place of incident, she saw accused persons running away from the place of occurrence after the incident. In her cross-examination she has admitted that her vision and the power of hearing has been impaired for the past ten to twelve years. She also accepts that she has problems in walking too. The houses of these two witnesses have also not been shown in the site plan. Which goes on to show that their houses are not in the vicinity of the place of occurrence. This shows that naturally, they could not be eye-witnesses of the incident and certainly could not reach the place of occurrence soon after the alleged incident, so as to see the so called accused persons running away from the place of occurrence. 16. The prosecution has examined many villagers as eye-witnesses but none of them has supported the prosecution version and all of them have turned hostile. Most of the witnesses have stated that the deceased, Panna Lal was going on motorcycle near temple, he dashed against a buffalo and fell down on the road, on which pieces of broken glass were lying, by which the injuries were caused to the deceased. Therefore, it is clear that the independent witnesses produced by the prosecution have not supported the prosecution version. Therefore, it is clear that the independent witnesses produced by the prosecution have not supported the prosecution version. 17. Factum of enmity has been admitted by the complainant in this case which has been specifically mentioned in exhibit P-20 as well as exhibit D-2. In both these documents, the complainant has specifically mentioned that there is dispute of land between the accused persons and the deceased. This fact has also been admitted by the complainant Gyan Bai when she was examined as PW-13 in this case. It is also an admitted fact that accused persons and the complainant party belong to the same family having some property dispute. 18. In the exhibit P-20 (FIR) no eye witness has been named but in the exhibit D-2 (complaint), the complainant: Gyan Bai has named: Chittarlal, Mattu harijan, Santra bai and Urmila Bai as eye witness. Chittarlal, Mattu harijan and Santra bai have not been made the eye-witness in this case and Urmila Bai is PW-18 who is wife of brother of the deceased, thus an interested witness. Admittedly, she has also not seen the incident. 19. During investigation a blood stained kulhadi is said to have been recovered from the possession of accused Kanhaiya Lal through seizure memo Ex.P.-30 the Kulhadi was sent to FSL for examination, where human blood of inconclusive group was found on the kulhadi so recovered. In Ex.P.-30 the Kulhadi has been recovered from an open place which is accessible to anyone, witnesses of this recovery PW-34 Kailash and PW-41 Dev Karan who are Police Constables have also admitted in their statements that the place from where the Kulhadi was recovered is open place and accessible to any person. Therefore the said recovery is also of no avail to the prosecution. 20. From the above discussion, it is clear that both the parties, who belong to the same family, have enmities due to dispute of land. Although, the alleged incident occurred at a public place, surrounded by so many houses, yet, no independent witness has supported the prosecution story. PW-13: complainant Gyan Bai, is an interested witness, her testimony has not been corroborated by any independent evidence. The prosecution story put forth by the complainant (as discussed herein above) is self-contradictory, which is evident by perusing Ex. P-20 and Ex. D-2. All these discrepancies make the whole prosecution story doubtful. 21. PW-13: complainant Gyan Bai, is an interested witness, her testimony has not been corroborated by any independent evidence. The prosecution story put forth by the complainant (as discussed herein above) is self-contradictory, which is evident by perusing Ex. P-20 and Ex. D-2. All these discrepancies make the whole prosecution story doubtful. 21. Therefore, in the opinion of this Court, the prosecution has failed to prove the charges levelled against the accused persons beyond the shadows of reasonable doubt and both these appeals deserve to be allowed. The judgment and order dated 28.03.2019 is set aside and the appellants are acquitted of the charges leveled against them. Appellant namely Kanhaiya Lal is in jail, he be set at liberty forthwith, if not required in any other case. Bail bonds of the other appellants are cancelled. 22. The appellants are directed to furnish a personal bond of Rs. Rs.50,000/- (Rupees Fifty thousand only) and one surety in the like amount in accordance with section 437A Cr.P.C., before the trial Court within a period of two weeks from the date of release to the effect that in the event of filing of Special leave petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex court. The bail bonds will remain effective for a period of 6 months.