1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT The State of Rajasthan vs. Ashiya & Ors. S.B. Criminal Appeal No.146/1989 u/s 378 (3) Cr.P.C. against the order dated 21.11.88 passed by the Munsif and Judicial Magistrate 1st Class, Bhinmal, in Criminal Case No.462/1985. Date of Judgment : 28th April, 2008. PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.JPS Choudhary , Public Prosecutor, for the State. None present for the respondents. BY THE COURT: This criminal appeal has been preferred by the State, against the judgment dated 21st of November 1988 passed by the Munsif & Judl.Magistrate 1st Class, Bhinmal, whereby the learned Judicial Magistrate has 2 not found the accused respondent Ashiya , Kesia and Habta guilty of the offences under section 323 and 325/34 of IPC and acquitted them accordingly. The brief facts giving rise to the prosecution case are as under ;- That on 03rd of September, 1985 at about 12.00 noon the complainant PW/1 Lakhma was grazing his she-goats in the field of Kishna s/o Maka Luhar. It is alleged that the accused persons Asiya, Kesia and Habta came to him. They were also grazing their she- goats in a field, who had damaged the standing crops in the field. When the complainant asked the accused persons not to get the standing crops damaged, they got annoyed and started beating him with clubs. It has been further alleged that the complainant Lakhma sustained injuries on his head, shoulders and other parts of the body, which were examined by the medical jurist and X-rayed by the Radiologist . The police lodged the FIR Ex.P/6, on the written complaint Ex.P/1, 3 submitted by the complainant and commenced the investigation. During the investigation, the investigating officer recorded the statements of the witnesses under section 161 of Cr.P.C., got the injured complainant medically examined and after usual investigation, submitted the police report in the court of Judicial Magistrate, Bhinmal. Heard only learned Public Prosecutor appearing for the State, as none has appeared on behalf of the accused respondents. The learned Public Prosecutor has contended that the lower court has not properly appreciated the evidence of PW/1 Lakhma and other material witnesses. It is proved from the statement of PW/1 Lakhma that accused Asiya inflicted 'lathi' blow on the right side of his head. The accused Kesia inflicted a lathi blow on the left side of his head near the ear and the accused Habta inflicted a lathi blow on the forehead 4 of the complainant. Thus, each accused caused a lathi blow on the complainant, which has been corroborated by the statement of PW/2 Vaza and partly supported by the medical evidence of PW/6 Dr.Mohan Lal. The learned Public Prosecutor has also argued that the lower court has not relied upon the statement of PW/2 Vaza and he being a relative of the complainant, has been found to be an interested witness. The learned Public Prosecutor has further submitted that no material contradiction is found to be in the statements of the prosecution witnesses,and thus the judgment of the lower court is improper, illegal and against the evidence available on record,which deserves to be set aside. It is pertinent to note that the learned trial court has appreciated the evidence of PW/1 Lakhma and PW/2 Vaza in detail. As per the statement of PW/2 Vaza, the blood of complainant Lakhma was lying on the ground, but there is no mention of this fact in the site plan Ex.P/5 and its description memo Ex.P/4, 5 which was prepared by the investigating officer. Apart this Ratta, Sagababa and others are said to have been working in their fields at the time of occurrence, but the police has not made them or any other independent person, to be the witness of this case. Only PW/2 Vaza has been made a witness, who is found to be an interested witness, as he appears to be in relation of the complainant. I agree with the finding of the lower court made to this effect that the prosecution has failed to prove that the injuries sustained by the complainant Lakhma were caused by the accused respondent only. There are material contradictions in the statement of PW/1 Lakhma and PW/2 Vaza , which casts doubt on their testimony. As the prosecution has not examined any independent witness in this case, the prosecution matrix lacks corroboration in toto. The lower court has analyzed and appreciated the evidence of the prosecution witnesses 6 in detail and the finding of the lower court do not appear to be in any way unjust , illegal or against the evidence of the prosecution witnesses available on record. To my view, the judgment of acquittal passed by the lower court is just and proper, with which I fully concur and it calls for no interference. In view of above, the criminal appeal filed by the State, against the judgment of acquittal dated 21st of November, 1988 passed by the Munsif and Judicial Magistrate, Bhinmal, is dismissed. (MAHESH BHAGWATI), J. l.george