HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. [CASE NUMBER] [ENTITY] S/o Shri [ENTITY], By [ENTITY], resident of Boya, District Udaipur (Raj.). Appellant Versus The [ENTITY]. Respondent For Appellant(s) : Mr. [ENTITY] For Respondent(s) : Mr. [ENTITY], P.P. HON'BLE MR. JUSTICE [ENTITY]
HON'BLE MR. JUSTICE [ENTITY] Judgment (per Hon'ble [ENTITY], J.) 18/04/2017 The instant appeal is directed against the judgment dated 05/12/1989 passed by Additional Sessions Judge, Rajsamand in [CASE NUMBER] by which the accused- appellant has been convicted under [SECTION] of [ACT] with life imprisonment and a fine of Rs.100/-, in default whereof, to further undergo three months' simple imprisonment.
2. The contents of F.I.R. (Ex.P/9 & Ex.P/10) discloses as under:-
"bl le; iqfyl LVs'ku ij] Jh /kUuk firk gfjjke cykbZ mez 38 lky fuoklh ihiyh vghjku us mifLFkr gksdj tckuh brYyk nh fd vkt rkjh[k 10-09-85 dks eSa vkSj esjk cM+k HkkbZ Hkksyhjke xko ds vU; yksxksa ds lkFk xko esa pkj Hkqtk th ds eafnj ds ikl xojh ns[k jgs FksA ml le; fnu dk djhc <+kbZ ct jgk FkkA ml o xaxkiqj ds jgus okys Jh ckcwyky firk nhipan HkkWch] nso fd'ku firk nhi pan HkkWch] (2 of 11) [[CASE NUMBER]] uSukjke firk iwuk th HkkWch] gjth firk xqykc th HkkWch fu- tw.knk] pkj Hkqtkth ds eafnj ds ikl vk;s vkSj esjs HkkbZ Hkksyh jke dks dgk fd gesa rqels dqN ckr djuh gS FkksM+k ,d rjQ vkvksA bl ij esjk HkkbZ Hkksyh jke muds lkFk ekrk ds eafnj dh vksj muds lkFk x;kA esjs HkkbZ dks m/kj tkrs ns[k HkkbZ dk yM+dk ';ke yky o mldh vkSjr #de.kh rFkk ihiyh dk gh jgus okyk dluk Hkhy o fHk;k jke Hkhy Hkh m/kj ls xqtj jgs Fks tks lkFk gksfy;s! Ckcwyky vkSj mlds lkFk ds rhuksa tuksa us ekrkth ds eafnj ds ikl esjs HkkbZ dks lkFk ysdj #d x;s] ckcwyky HkkWch us uSukjke dks dgk fd ;s gh gSa Hkksyhjke ftlus esjs thtkth dh jksVh fNuok;h mudk /ka/kk pkSiV djok;k] uSuk! Ekkj bldks [kre dj A bl ij ckcwyky] nso fd'ku o gjth us esjs HkkbZ Hkksyhjke dks gkFk idM+ fy;s vkSj uSukjke us ,d Nwjk fudky dj esjs HkkbZ Hkksyhjke ds lhus esa ?kqlsM+ fn;kA ,slk gksrk ns[k ikl gh [kM+k HkkbZ dk yM+dk ';ke yky vius firk dks cpkus ds fy, chp esa vk;k rks uSukjke us mldh xnZu ij Nwjs dk okj fd;k tks Nwjk eqg ij jxM+ [kkrs xnZu ij fQly x;kA fdluk Hkhy o #de.kh rFkk fe;kjke Hkhy us gkdk fd;k rks xko ds dbZ tus ftuds lkFk eSa Hkh Fkk ekrkth ds eafnj dh vksj nkSM+k rks jkLrs esa esjk HkkbZ Hkksyh jke ftlds fd lhus ls [kwu dk QOokjk NwV jgk Fkk feyk tks xko esa pkjHkqtk eafnj ds ikl vkrs fxj iM+k vkSj ne rksM+ fn;kA ';ke yky ds eqg vkSj xnZu ij pksV yxh Fkh vkSj [kwu cg jgk FkkA mUgsa rqjUr ikl gh vLirky ys x;sA tgka ';keyky dk bZykt fd;k ijUrq Hkksyhjke rc rd ej pqdk FkkA eqyfteku ekSds ls eDdh esa dwn dj Hkkx x;sA ftudk ihNk xkaookyksa us fd;k rks gjth firk xqykc th HkkWch fuoklh tq.ksnk dks eksgu cykbZ vkSj fdluk cykbZ o vU; xkao okyksa us jksM+ ij nkSM+rs&nkSM+rs idM+ fy;kA eqyfte Jh ckcwyky vkSj nsofd'ku nksuksa HkkbZ gSa vkSj nksuksa xaxkiqj ftyk HkhyokM+k ds jgus okys gSaA budh ,d cgu teuk vkSj thtk Jh mek xko ihiyh esa twrs xkBus dk dke djrs gSaA fiNys pkj&ikap eghus ls ,d vkSj nwljk ekSph ukjk;.k jsxj Hkh twrs xkaBus dk dke djus yx x;k rks mek vDlj ;g bYtke esjs HkkbZ Hkksyhjke ij yxkrk Fkk fd ukjk;.k dks Hkksyhjke us ykdj clk;kA egt mldk xkao esa /ka/kk pkSiV djus ds fy, blfy, vk, fnu mek] Hkksyhjke ls ,d fnu fuiV ysus dh /kefd;ka nsrk jgrk FkkA vkt mlus vius lkys ckcw o nsofd'ku HkkWch rFkk mlds nksLr uSukjke HkkWch fuoklh xksxkFkyk vkSj gjth HkkWch fuoklh tq.ksnk dks izksxzke cukdj xkao ihiyh vghjku ysdj vk;kA [kqn nwj jgk vkSj nwljs nksLrksa ls esjs HkkbZ Hkksyhjke dks bjknru ejok;k o ';keyky ij tku ls ekj nsus dh fu;r ls xnZu ij Nwjs ls pksV igqapkbZA eqyfteku }kjk esjs HkkbZ dks Qqlykdj ekrk th ds eafnj dh vksj ys tkus rFkk ml ij Nwjs ls geyk djus dh iwjh tkudkjh eq>s Hkksyhjke ds yM+ds ';keyky us nh A brYyk nsrk gwa] dk;Zokgh djsaA"
/kujkt
3. Besides appellant-accused [ENTITY] son of [ENTITY], trial was conducted against four another accused persons, namely [ENTITY], [ENTITY], [ENTITY] and [ENTITY] in [CASE NUMBER], which was adjudicated on 12/01/1988 for the offence under [SECTION] coupled with [SECTION] of [ACT] by the Court of Additional Sessions Judge, Rajsamand and all those four accused persons were acquitted by that Court, and present appellant [ENTITY] was arrested on 12/12/1988, so, his trial was conducted by impugned judgment vide [CASE NUMBER], which was culminated by the judgment impugned.
(3 of 11) [[CASE NUMBER]]
4. Heard submissions of rival sides, learned counsel for the appellant-accused has contended that the trial court has fallen in error, while convicting and sentencing the appellant- accused, there is no direct evidence as to who was the alleged assailant. All the prominent witnesses of the prosecution have not supported story of the prosecution, which goes to reveal that the witnesses were not ocular, even the injured PW.3 [ENTITY] has been declared hostile, likewise, PW-2 and PW 5 have also become hostile and they have not corroborated story of the prosecution. Vital contradictions are there in the testimonies of all the witnesses and nobody has seen alleged stabbing, so far as, cross- examination of [ENTITY], PW-6 is concerned, it too has shrouded the entire story with respect to alleged involvement of the appellant-accused, since he has said that he did not witness any occurrence , despite the learned trial court has penned down an erroneous finding, which is not sustainable, in the eye of law, since nothing has been established as to who stabbed and which of the accused acted in conspiracy, even motive of the offence has not been clearly chalked out, it has also been contended that the story of the prosecution is highly doubtful and rest of four accused against whom separate trial No.2/86 was conducted were acquitted by the trial Court on 12/01/1988 and creditworthiness of all the testimony has already been disbelieved by a competent Court, so there is no substance in their evidence in this case as well, hence, the impugned judgment is not at all sustainable, so it be quashed after allowing the appeal.
(4 of 11) [[CASE NUMBER]] On the contrary, learned Public Prosecutor has contended that the testimony of injured witness is trustworthy, he was assaulted by [ENTITY] and too has also distinctly said that soon after his deceased father was stabbed he was also stabbed by the assailant [ENTITY], a pre-plan attack was committed and the deceased was falsely allured to go in isolation, where he was brutally assaulted and was killed, while his son tried to save his father, he too was stabbed, so there is explicit ocular evidence, which is supported by medical evidence and there is no flaw in the impugned findings, which is worthy to be sustained, appeal lacks merit, so, it be dismissed.
5. Perused the record and examined the evidence thoroughly, which reveals that prosecution has produced only six witnesses, even Doctor conducting postmortem and examining the injured, as well as, the investigating officer has not been produced in the trial and witnesses have not named, the appellant, in the alleged crime, four of the accused persons particularly [ENTITY] son of [ENTITY], [ENTITY] son of [ENTITY], [ENTITY] son of [ENTITY] and [ENTITY] son of [ENTITY] were acquitted in Session trial No.2/86 decided on 12/01/1988 regarding the same incident.
6. Prosecution has produced six witnesses out of which Smt. [ENTITY] wife of deceased [ENTITY] has become hostile and has categorically said that she was not present, when the incident occurred and reached at the place of occurrence later, and has said that "she does not know as to who killed (5 of 11) [[CASE NUMBER]] [ENTITY] and she has also said that who inflicted injury upon [ENTITY] is also not known to her", in her cross- examination, she has also said that she did not see anybody inflicting stabbing upon [ENTITY] or upon her husband, she has even said that accused was not seen by her, inflicting injuries upon her husband, likewise PW.2 [ENTITY] has also turned hostile and has said that "[ENTITY] arose and went towards his home, who killed him there, is not known to him", in his cross- examination, he has said that he does not know accused [ENTITY], he has even declined recitals of his earlier statements Ex.P.3 as well as police statements Ex.P.4.
7. PW.3 [ENTITY] is none-else but is an injured person and son of the deceased as well, he too has been declared hostile and has even said that many people were there, he was not there and his father was there, he has also said that [ENTITY] and [ENTITY] fought with each other, which resulted death of his father, he has further said that "[ENTITY] had stabbed his father" and has said that he does not know accused person, present in the Court, in his cross-examination, he has said that [ENTITY] had stabbed him at his neck and has specifically said that "it is not correct that he and his father were stabbed by [ENTITY]", he has uttered that "the statements earlier made by him in the Court were false"
and has asserted certain parts of Ex.P.5 being false and has also denied certain recitals of police statements Ex.P.6 and has even said that it is wrong that "his father was stabbed by [ENTITY]" and has further said that [ENTITY] does not reside in the (6 of 11) [[CASE NUMBER]] neighbourhood of his village.
8. Upon examining the aforediscussed evidence, it is candid that injured [ENTITY] has become hostile and has specifically denied involvement of accused [ENTITY] and has even gone to this extend that "he has admitted that he had given false statements before the Court in earlier trial", he has said that he was stabbed by [ENTITY], whereas Ex.P.9 F.I.R discloses, involvement of [ENTITY] in causing alleged injury. PW.1 [ENTITY] has also said that she does not know as who inflicted stab injury upon [ENTITY] and statements of both these witnesses has collapsed story of the prosecution and makes entire version of the F.I.R untrue.
9. PW.4 [ENTITY] is a witness of Ex.P.7 [ENTITY] of dead body and PW.5 [ENTITY] another wife of deceased has also turned "hostile", she has said that name of her husband was [ENTITY] and [ENTITY] as well, who died four years ago, she has further said that [ENTITY], [ENTITY] etc. three persons killed him, she has further said that [ENTITY], [ENTITY] and [ENTITY] took her husband away and stabbed him, she has made significant say by saying "she does not know [ENTITY] nor witnessed anybody causing stabbing" in her cross-examination, she has said that she knows [ENTITY] and [ENTITY], but does not know [ENTITY], she has further said that her husband was having two wives, she used to stay in her parental house and another wife was staying with him, she has also denied certain recitals of her earlier statements Ex.P.8, she has also said that her husband (7 of 11) [[CASE NUMBER]] brought another wife, so he was not keeping her alongwith and has even said that he never seen accused [ENTITY] and even does not identify him today as such testimony of this witness is also devoid of any merit.
10. PW.6 [ENTITY] is a last witness of prosecution in this case, who is brother of deceased [ENTITY], he has said that deceased [ENTITY] was his brother, four years ago, they were witnessing [ENTITY] in the Village, [ENTITY] of Gangapur came and asked [ENTITY] to come along for some assignment and took him away, [ENTITY] went there, [ENTITY], his [ENTITY], [ENTITY] and [ENTITY] also accompanied him, they went towards place of "[ENTITY]", five to seven minutes later, [ENTITY] was stabbed and he came at the corner and said that [ENTITY] stabbed him, he has said that "[ENTITY]" was 30-35 hand- span away from the place where they were sitting, he has also made a significant statement that "the place was slant and was not visible from there" he has further said that he went to [ENTITY] at the corner, blood was oozing out from his chest and has narrated that [ENTITY] said him that [ENTITY] had stabbed him, who is present in the Court and he identify him, who used to visit to his Village, he has further said that his brother had also informed that his brother and [ENTITY] were injured by [ENTITY], he went to hospital to call doctor, who said that bring him here, meanwhile people brought him there, who was carried inside the hospital and he died, later he went to the police station and lodged Ex.P.9, which contains his signatures.
(8 of 11) [[CASE NUMBER]]
11. Perusal of Ex.P.9 goes to disclose that nothing of that nature that author of the F.I.R was informed by his deceased brother that [ENTITY] had stabbed him but Ex.P.9 discloses "that [ENTITY] son of [ENTITY] had conveyed him that the accused persons had taken his brother [ENTITY] under some pretension towards the temple of [ENTITY] and attacked there with dagger" and this aspect is essentially vital, which goes to indicate that either the version of the F.I.R. Ex.P.9 or the statement of this witness are untrue, which makes the story of the prosecution dubious and non-creditworthy, in his cross-examination, this witness has dislodged and denied certain versions of Ex.P.9 F.I.R and has even said that in Ex.P.9 F.I.R, he did not name four persons, which might have written by thanedar saheb.
12. If, we scan testimony of injured [ENTITY], who was also injured in the same incident, he has said that he was stabbed by [ENTITY] and [ENTITY] had stabbed his father and he has even said it is wrong that [ENTITY] stabbed his father or to him, as such, testimony of both these witnesses goes contrary to each other, which makes the prosecution version highly doubtful.
13. Prosecution has not produced Doctor, as well as, investigating officer in the trial and so far as testimony of both the wives of the deceased and even son [ENTITY], who was also injured in the incident, does not name accused-appellant [ENTITY] having involved in the incident, both the wives have denied (9 of 11) [[CASE NUMBER]] their presence or witnessing anything, PW.2 [ENTITY] has also said that he does not know as to who killed [ENTITY]. [ENTITY] has even said that instead of [ENTITY], [ENTITY] had stabbed him and [ENTITY] had stabbed his father, it is worthy to mention here that [ENTITY] and [ENTITY] with rest of two accused [ENTITY] and [ENTITY] have already been acquitted in [CASE NUMBER] decided on 12/01/1988, after appreciation of the evidence, there is no appeal before us pertaining to said judgment dated 12/01/1988.
14. Totality of the evidence as dealt and discussed hereinbefore does not connect the accused-appellant with the alleged crime, because whole of the evidence of the prosecution is doubtful, contradictory and untrustworthy. Eye witnesses and injured have also turned hostile, though [ENTITY] PW.6 has introduced a version that his deceased brother, while under pangs of injury informed him that [ENTITY] had caused stab injuries to him, but he has said that he did not witness scuffle and Ex.P.9 F.I.R, which has also been lodged by [ENTITY], brother of the deceased discloses another story that entire assault story was conveyed him by [ENTITY] son of [ENTITY], as such, prosecution has miserably failed to adduce anything positive against the accused-appellant.
15. It is a well settled doctrine of criminal jurisprudence that if there appears two versions then version favourable to the culprit be preferred, likewise in case of doubt "benefit of doubt" is to be extended to the accused person". In catena of judgments Hon'ble Apex Court has observed and laid (10 of 11) [[CASE NUMBER]] down law accordingly.
In [PRECEDENT]; [ENTITY] Vs. Raja Ram, (2003) 8 SCC 180; [PRECEDENT]; [PRECEDENT] and in [PRECEDENT], Hon'ble Supreme Court has observed that "it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted"
In [PRECEDENT] and in [PRECEDENT] the Hon'ble Supreme Court has observed that once it is found that circumstance could not point out towards guilt of accused, without any other inference being probable, the accused must get the benefit of doubt and in [PRECEDENT], Hon'ble the Supreme Court has held that in the cases of deficiencies of proof, benefit would be available to the person charged and in [PRECEDENT], the Hon'ble Apex Court has also held that in event of there being two possible views, one supporting the accused should be upheld and Hon'ble the Supreme Court has recognized presumption of innocence as a human right.
(11 of 11) [[CASE NUMBER]] In view of the foregoing reasons, we allow this appeal thereby setting aside the impugned judgment and acquit the accused-appellant of the charge levelled under [SECTION] of [ACT]. The appellant-accused is on bail, so he need not to surrender, his bail bonds stand discharged.
Keeping in view, however, the provisions of [SECTION] [ACT] the accused appellant is directed to forthwith furnish a personal bond in the sum of Rs.50,000/- 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 Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
Record of the lower Court be sent back promptly with a copy of the judgment.
([ENTITY] ([ENTITY] Sanjay/T .kush