1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR **** :JUDGMENT: State of Rajasthan Vs. Shanker & Anr. **** D.B. CR. APPEAL NO.354/1985 AGAISNT THE JUDGMENT AND ORDER DATED 8.4.1985 IN CR. CASE NO.20/84 PASSED BY DISTRICT & SESSIONS JUDGE, JALORE. <><><> Date of Order : 6th Feb., 2008 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE BHANWAROO KHAN Mr.VR Mehta, for the appellant-State Mr. Doongar Singh, for the respondents-accused. BY THE COURT: (Per Hon'ble Mr. Justice Prakash Tatia) The respondents-accused Shanker S/o Suja Purohit, and Thana S/o Rawta Purohit, both resident of Delwara were acquitted by the learned District & Sessions Judge, Jalore from the charges under Sections 302, 302/34 and 323 IPC by judgment dated 8th April, 1985, hence, this appeal has been preferred by the State. As per the prosecution case, one Chima S/o Pirana by 2 caste Bagri, resident of village Tawav (PW-3), lodged FIR at the police station Bheenmal on 21st June, 1984 at 8.00 AM alleging that in the previous night at 10.00 AM his brother Pitha informed him that on 20th June, 1984 his sister's son Malia S/o Gena and his brother-in-law Tulchha S/o Peera and one Khima S/o Dhukala Kodiya went to pay the tractor hire charges in village Mundthala Kaba. When they were returning from the village Mundthala Kaba and reached to the Chohata (open chowk of the village Delwara) and stayed there for some time to buy Bidi, at that time, the accused Shankriya S/o Suja resident of Delwara, because of old enmity, abused them by filthy language, which resulted into quarrel and, thereafter, annoyed Shankriya went to his house and came with his uncle accused-respondent Thana and both were having sticks with them. When said Malia, Tulchha and Khima saw accused Shankaria and Thana coming with the sticks, all three started for their home, but Shankriya shouted “kill” “kill” and came in front of all three Malia, Tulchha and Khima. Thereafter, Thana inflicted one lathi blow on the left side of head of Malia because of which Malia fell down on the ground. Thana also inflicted injury by 3 lathi blow on head of Tulchha. Shankriya also inflicted lathi blow on Malia even when Malia already fell down. Tulchha tried to ran away, but Shankriya ran after Tulchha and inflicted lathi blow on the body of Tulchha. Khima who was with Malia and Tulchha ran away and informed about the incident to Chima. After information from Khima, Chima went on spot and found that Malia was lying dead on the spot and Tulchha was lying injured. Chima's daughter Ramu was sitting near the dead body of Malia. As per the FIR, the FIR was not lodged in the night and was lodged in the next morning at 8.00 AM because of the reason that there was no means available to reach to the police station. A case under Section 302 IPC was registered on information given by Chima. After investigation, Police submitted challan in the court under Section 302, 302/34 and 323 IPC against both the accused-respondents. The respondents-accused denied the charges and sought trial. In the trial, the prosecution produced PW-1 Tulchha, PW-2 Khima, PW-3 Chima, PW-4 Ganpat Singh, PW-5 Ram, PW-6 Chopa, PW-7 Virendra Kumar Lodha, PW- 8 Prabhu Ram, PW-9 Gorkharam and PW-10 Bhanwar 4 Singh, and 18 documents. The accused were examined under Section 313 Cr.P.C. and in their statements under Section 313 Cr.P.C. accused Thana stated that he was not present on spot at the time of alleged incident but he was in the village Ramsingh. He came to know about the incident of death of Malia only when he returned from village Ramsingh. He also stated that he has been involved falsely because of old enmity as a liquor case was registered against Malia wherein accused Thana as Ward Panch gave his statement against victim Malia. The accused Shankriya stated in his statement, recorded under Section 313 Cr.P.C., that Malia and Tulchha had liquor bottles in their hands, and in drunken condition came in his house shouting filthy language, upon which he pushed them out of his Guwari. Both Malia and Tulchha went towards the Chauhta. When Shankriya also reached near Chauhta, Malia started fighting with Shankriya and in that scuffle Malia fell down on stone slabs. The liquor bottle, which was in the hand of Malia also fell down. During this time also, Malia was shouting filthy language, upon which about 20 to 25 villagers came with stones, sticks and Axe 5 and started beating Malia and Tulchha causing so many injuries to both the victims. In defence accused produced witness DW-1 Poonma, DW-2 Baga and DW-3 Dr. R.P. Purohit. PW-7 Dr. Virendra Kumar Lodha conducted postmortem of Malia on 21st June, 1984 and submitted postmortem report Ex.P/8A. There were total 9 injuries on the body of deceased Malia which are as under : - “1. Lacerated wound with cutting of Ear pinna left side of forehead 2”x2/8”x1/2”. 2. Bruise 5”x1” Lathi mark – 1” above umbilicus on Abdomen. 3. Bruise – 4”x1” on left wide of chest near nipple. 4. Bruise 3.5”x1” on left side abdomen near umbilicus. 5. Abrasion 2”x1”x1/8” skin super ficial on right thigh. 6. Lacerated wound 1/2”x2/8”x5/8” - 4” below the left knee on leg. 7. Abrasion 1”x5/8”x5/8” - 3” below the left leg knee. 8. Abrasion – 1/8”x1x8” skin superficial on left land near thumb. 6 9. Swelling on right elbow – No bruise, abrasion seen.” The cause of death given was that deceased died “due to shock and hemorrhage resulting from fracture on skull bones and brain injury”. As per postmortem report two internal injuries were found, which are (i) fracture of frontal bone above left eyebid and (ii) fracture of bones (frontal) on temporal region with injury to brain tissue. The injuries were old 12 to 18 hours. The injury no.1 was sufficient to cause death in ordinary course and could have been inflicted by stick blow. So far as injury to the left ear lobe, the doctor opined that it could have been by sharp edged weapon or it may be due to fall of a person on some hard object or it could have been by blunt weapon also. FSL report was also obtained and proved. The victim and witness Tulchharam had following injuries: - “1. Lacerated wound 1/2”x1/2”x5/8” on left parietal region 1” medial to parietal eminence. 2. Lacerated wound 1/2”x1/2”x3/8” - 1” above left ear 7 3. Lacerated wound 1”x3/8”x1/8” - lateral epicondyle of left knee. 4. Abrasion left thigh 1”x2/8”x2/8” - above ant. Sup.ili ac supine. 5. Lacerated wound 3/8”x1/8”x2/8” - left leg lower knee 6. Abrasion 1/8”x1/8” - left ankle. Skin superficial 7. Lacerated wound 2”x1/8”x1/8” - on right knee. 8. Lacerated wound 1.5”x2/8”x2/8” - 2” above the right Ankle Joint. 9. Abrasion 1/8”x1/8” skin superficial – on right arm 4”above elbow joint. 10. pain – now swelling, no bruises abrasion on left back -near ant. Sup. Illiac spine. 11. pain and swelling – left backs no bruise no abrasion. 12. Abrasion 1/8”x1/8”x skin superficial – on left forearm 13. Abrasion 1/8”x1/8” skin superficial – near lateral canthus of right eye. 14. Bruise on right side of chest anteriorly 4”x1/2”” It will be worthwhile to mention here that it was alleged that Tulchharam suffered injury in the same incident 8 in which victim Malia died and he is only eye witness, who supported the prosecution case as Khima PW-2 did not support the prosecution case and was declared hostile. The trial court discarded the evidence of Tulchha after giving detail reasons. The trial court after recording the contradictions in the statements of Tulchha and other witnesses and after examining the site inspection report in detail and considering the evidence of defence witnesses was of the view that the prosecution case cannot be accepted whereas there is force in the defence story where the accused stated that both the victims in drunken condition started abusing by shouting filthy language in the village and looking to their offending language, the villagers attacked upon both the victims and in that fight, Malia died and Tulchha suffered several injuries. The trial court was of the view that admittedly the incident occurred in the open chowk of the village and admittedly, none of the villager living just near the place of incident was examined by the prosecution nor any of the villagers came forward to say something when incident took place in the open place of village, which causes serious doubt on the prosecution case 9 and this supports the defence stand that large number of villagers gave beating to the victims. So many injuries on the body of the victims also suggest that in total 23 injuries ( 9 of Malia and 14 of Tulchha) could be due to involvement of more than two attacker's attack. Learned Public Prosecutor vehemently submitted that the trial court committed grave error of law by discarding and rejecting the evidence of Tulchharam, who suffered as many as 14 injuries in the same incident and fully supported the prosecution case. It is submitted that death of Malia on spot at the time given by the prosecution has not been disputed by the accused persons. PW-7 Dr. Virendra Kumar Lodha also clearly deposed that Malia suffered fatal injury and as per the postmortem report also, the cause of death of Malia was because of fracture of skull bones and brain injury, which is due to stick blow inflicted by accused Thana upon Malia. Therefore, the statements of eye witness is supported by the medical evidence. It is also submitted that the presence of Tulchharam on spot is also admitted even in view of the defence taken by the accused- persons. Learned Public Prosecutor vehemently submitted 10 that the inference drawn by the trial court that Malia and Tulchha consumed liquor is based on only assumption and there is no evidence supporting the said presumption. It is also submitted that evidence of the doctor and medical report as well as postmortem report clearly show that Malia did not consume the liquor nor there is mention of any smell of liquor from the body of Malia or from the body of Tulchha. In view of the above reasons, the total evidence of the accused-persons falls to the ground and the defence is absolutely false. Learned counsel for the respondents-accused submitted that the incident took place about more than 23 years ago and the trial court acquitted the accused after considering all evidence available on recored and the reason given by the trial court for accepting the defence version in preference to the prosecution version is based on appreciation of evidence. The trial court's finding about the incident is based on evidence and even if, there is possibility of two views from same set of evidence then also, the judgment of acquittal may not be interfered in appeal and the benefit goes in favour of the accused-persons in a case 11 where there may be two possible views. On merits, learned counsel for the respondents- accused submitted that even as per the prosecution case, the incident took place not in late night and incident took place in the habitated area of the village. As per the prosecution's own case none of the villagers came on spot despite so much of shouting and obvious reason is that large number of villagers were involved in beating both the victims and there was reason for villagers for beating the victims and because of this reason only, none of the neighbour and villagers supported the prosecution case. Otherwise, there was no reason for not producing material witnesses – the neighbours and villagers by the prosecution. The prosecution witnesses admitted that houses of Soma and Poonma were in front of the place of incident and even there is no fencing in the Poonam's house. None of the villagers not only did not came on spot in the night, but even did not came on spot on next day when police came on spot because of involvement of large number of villagers in beating two victims. It is also submitted by learned counsel for the respondents-accused 12 that as per the statement of Tulchha himself they saw Shankara and Thana coming with sticks when they were 10 steps away from them, but they (Malia and Tulchha) did not ran away. According to learned counsel for the respondents- accused it was because of the reason that both were not in position to run as they were not in position to run due to intoxication inspite of the fact that Malia was of the age of 25 years and Tulchha was of the age of 18 years. According to learned counsel for the respondents-accused, the trial court rightly rejected the contention of prosecution that the victims were coming from one village and stayed in the village where incident took place for purchasing bidi then in that situation their going to the place of the incident which is about 30 to 40 feet away from the shop of Ratiram, there is no explanation given why the victims went to the place of incident leaving Ratiram's shop behind. Therefore, the victims did not come from the way which was suggested by the prosecution, but came from the way which was suggested by the defence. So far as fatal injury is concerned, as per FIR and statement of Tulchha, one of the victim himself Thana inflicted only one lathi blow on the left 13 side of head whereas as per postmortem report there were two injuries on the head of Malia. The accused Thana cannot be held responsible for second injury and it is not proved by prosecution that fatal injury i.e., injury no.1 was caused by the accused Thana. It is also submitted that it is impossible that two persons can inflict 9 injuries to one and 14 injuries to second victim and before so many blows at least Tulchha would not be able to run away if he was not in drunken condition. Learned counsel for the respondents- accused further submitted that the prosecution witness PW- 7 Dr. Virendra Kumar Lodha also deposed that the fatal injury could have been caused due to fall of victim on stone slabs. We considered the submissions of learned counsel for the parties and perused the record. It cannot be disputed that the accused can be convicted on the basis of solitary statement of trustworthy witness and it is not necessary to demand corroboration of statement of a witness when the statements of witness are beyond doubt. The injured witness is an important witness and injured's testimony cannot be rejected lightly and 14 because of minor contradictions in the statements of injured witness. In the present case, it is not disputed that victim Malia died in the incident which took place on 20th June, 1984 in the village Delwara of District Jalore and at the spot where his body was found. The victim Malia suffered as many as 9 apparent injuries and fracture in frontal bone and temporal bone, which resulted into shock and hemorrhage. The injury no.1 was sufficient to cause death in ordinary course. The question is whether the injuries were caused by the respondents-accused. To prove this allegation, the prosecution produced witnesses out of which, PW-1 Tulchharam is an important witness because of the reason that as per the prosecution story Tulchharam also suffered injuries in the same incident of beatings by the accused persons in which Malia was killed. The statements of PW-1 Tulchha was not relied upon by the trial court. Part of the statements of Tulchharam which if considered in isolation to the totality of the facts then some contradiction may be termed to be only minor contradictions, but if in totality of the facts of the case, the statement of Tulchharam is examined, then it appears that Tulchharam 15 gave a story about incident, which cannot be believed. Tulchha Ram's statement is not supported by any independent witness as well as he failed to prove how two accused could have inflicted total 23 injuries and why two or at least one, and particularly Tulchha could not ran away to avoid so many injuries if they were not drunken liquor to the extent that they were not in position to run away when they saw aggressors coming to them or thereafter, after a few lathi blow. As per the prosecution's own case, incident took place in front of houses of Soma and Poonma. The place of incident was near the open chowk of the village also, but according to the prosecution's own case none of the villager came on spot at the time of incident depict shouting nor in entire night and even on next day when police came to investigate the matter none of the villager came forward and for the reasons best known to the investigating agency, villagers' and neighbours' statements were not recorded. Then there is force in defence case that none of the villager or neighbour are independent witness was ready to support the case of the prosecution. Large number of injuries on the body of two victims of very young 16 age can be due to involvement of more than two persons as well as due to reason that they were physically not fit to resist lathi blow and were not in position to run. Tulchha could not explain, when Shankara also quarrelled with Malia and went to his house then what for Malia, Tulchha and Khima were waiting and stayed in the village Delwara. There is no explanation from Tulchha that when victims saw the Shankriya coming with lathi alongwith his uncle who was also carrying lathi with him then why the victims did not run away particularly, when they were of the age of 22and 18 years unless they were not in drunken state. There is no explanation, if statement of Tulchharam is accepted, that they stayed in the village Delwara to purchase the bidi only then how they reached about 30 to 40 steps beyond the shop of Ratiram. Further, Tulchharam even stated that he does not know to whom the tractor hire charges was given for which Malia, Tulchha and Khima went together. The accused-persons disclosed their defence, without any delay, in their statements recorded under Section 313 Cr.P.C that in what circumstances Malia died and Tulchha 17 suffered injuries. And as per prosecution case, Tulchha, Malia and Khima were together at the time of incdient. Malia died and Khima has not supported the prosecution case and he has been declared hostile. The prosecution was permitted to cross-examine Khima but nothing damaging to accuse came out from the cross-examination of Khima. PW- 1 Tulchha in his cross-examination admitted that incident took place in front of the shop of Ratiram near the village well and in front of houses of Soma and Poonma and about 20 steps away only there were houses of other villagers and when they were beaten they shouted but nobody came on spot. There is no reason given why the villagers did not come out when it was not too late in night. Even in a case when there is no fight and there is only quarrel with shouting then also normally, the persons residing nearby will come out to see what is going on, but in this case, it was not an incident of ordinary quarrel, but two persons were beaten and as per the prosecution story severely, causing 14 injuries on the body of one person and 9 injuries on the body of other person, which may take a reasonablly good time if this beating is by only two persons. In that 18 situation, the defence stand that more persons gave beating to the victims appears to be more nearer to the reason. The defence also produced witness who are residing near the place of incident, Poonma who stated that about 20 to 25 persons of village gave beating to Malia and Tulchha and villagers were having stones and sticks with them by which Tulchha and Malia were hit by the villagers. The defence witness DW-3 Dr. R.P.Purohit explained why the doctors could not notice the smell of liquor from the body of both the victims. In addition to above, neither from the statement of Tulchha nor from any evidence it come on record that what was the cause of enmity of Shankara with Malia except that PW-5 – Ramu stated that enmity was not with Shankara but it was with Thana and reason for enmity is giving some ornaments to Thana for taking loan and it is stated that total loan of Rs.500/- was taken from Thana by giving some ornaments to Thana and against that Rs.700/- was /are paid to Thana but Thana did not return the ornaments. This is by way of improvement only as fact was not disclosed in the statement of said Ramu in her statement before the police. 19 In view of the above reasons, we do not find any error of fact or law in the judgment of the trial court calling for interference by this Court. Consequently, the appeal is dismissed. [BHANWAROO KHAN], J. [PRAKASH TATIA],J. c.p.goyal/-