IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Sawa & Anr. Versus The State of Rajasthan S.B. CRIMINAL APPEAL NO. 346/1988 Date of Judgment : 10.08.2010 PRESENT HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. M.C. Bishnoi with Mr. B.M. Sharma for the appellants Mr. A.R. Nikub – Public Prosecutor BY THE COURT This appeal has been preferred by appellants Sawa and Lalu, both sons of Partha, by caste Gameta (Bhil), residents of Khurvadi Magra, Kelwada, District Udaipur, against the judgment of conviction and order of sentence dated 22.08.1988 passed by learned Additional District and Sessions Judge, Rajsamand in Sessions Case No. 5/86, by which the appellant No. 1 Sawa was convicted for commission of offence under Section 304 Part II IPC and sentenced to undergo 4 years rigorous imprisonment and to pay a fine of Rs.500/- and appellant No. 2 Lalu was convicted for commission of offence under Section 302 Part II read with Section 34 IPC and sentenced to undergo 3 years rigorous imprisonment and to pay a fine of Rs.500/- and default of payment of fine, the accused appellants were ordered to further undergo 6 months rigorous imprisonment. Page 1 of 12 Originally this criminal appeal was filed by 3 accused appellants, out of whom appellant Partha S/o Gemana, by caste Gametha (Bhil) resident of Khuvadi Magra, Kelwada, District Udaipur had died and on the basis of verification of above, the appeal of accused appellant Partha S/o Gemana was abated. The nub of the prosecution story is that on 23.10.1985 when Station House Officer, Police Station Kelwada had gone for investigation in Criminal Case No. 81/85 in the Village Khurvedi, then complainant Roopa S/o Uda made a written report to the Station House Officer alleging that there was a dispute of land between the accused Partha and his family members and him and his uncle Ganga. There was old enmity between these families. The complainant further alleged in the complaint that at 3.00 p.m., when Ganga was cutting grass in his own field, Ganga's sons Mava and Saroopa made loud cries and upon hearing the cries, complainant went to the spot and saw that accused Partha, Sawa, Lalu, Smt. Chunki, Dav, Verdha, Smt. Umli, Khuma, Smt. Gulabi, Moti Chunki and Uding carrying kulhari, lathis and stones were beating Ganga. They were armed with weapons. Dav inflicted kulhari blow on the head of Ganga and other accused also inflicted several injuries on the body of Ganga. On the aforesaid information, FIR No. 81/85 was Page 2 of 12 registered at the Police Station Kelwada and investigation commenced. During the course of investigation, Ganga died due to the injuries caused during the aforesaid fight, therefore, offence under Section 302 IPC was added. During the course of investigation, inquest memo and site plan memo were prepared, statements of the witnesses were recorded, accused Partha, Sawa, Lalu and Chunki were arrested, the weapons of offence were recovered at the instance of the information recorded under Section 27 of the Indian Evidence Act and autopsy was conducted on the dead body of the deceased Ganga. After usual investigation, charge-sheet under Section 302, 324, 323 and 447 IPC was presented in the Court of Munsif and Judicial Magistrate (First Class), Kumbhalgarh from where the case was committed to the Court of Additional District and Sessions Judge, Rajsamand for trial. The accused were charged for commission of offence under Section 302/34, 324/34, 323/34 and 447 IPC. Accused did not plead guilty and claimed to be tried. The prosecution examined as many as 16 witnesses, namely, P.W.1 Roopa, P.W.2 Saroopa, P.W.3 Mawa, P.W.4 Pannalal, P.W.5 Vijay Singh, P.W.6 Pannalal, P.W.7 Amra, P.W.8 Meethalal, P.W.9 Nauja, P.W.10 Dr. Surendra Kumar Thakral, P.W.11 Kishan Singh, P.W.12 Anil Kumar, P.W.13 Vakht Singh, P.W.14 Devi Puri, P.W.15 Natwarlal Sharma, P.W.16 Kishan Singh. The accused were asked to explain the incriminating evidence adduced against them Page 3 of 12 during the course of trial. In the defence, one witness, namely, D.W.1 Partha, was examined by the accused. After hearing both the parties, learned trial Judge convicted the accused Sawa under Section 304 Part II IPC and accused Partha and Lalu under Section 304 Part II read with Section 34 and sentenced them as mentioned above. Accused Chunki remained absconded during the trial w.e.f. 08.10.1986 and she was declared as proclaimed offender on 10.08.1987. Now the present appeal shall decide the challenge to the judgment of conviction and order of sentence in relation to two accused appellants, namely, Sawa and Lalu. Learned trial Judge while holding the accused appellant Sawa guilty for the commission of offence under Section 304 Part II IPC and accused appellant Lalu guilty for the commission of offence under Section 304 Part II read with Section 34 IPC framed 3 points for consideration and after appreciating the evidence decided the same, which are as under :- (i) Whether the accused appellants on 23.10.1985 at 3.00 p.m. Intentionally caused death of Ganga in his beed ? (ii)Whether the accused appellants at the same time and place wilfully caused injuries to Roopa with axe ? (iii)Whether the accused appellants at the same time and place wilfully caused simple injuries to Roopa, Saroopa and Mawa ? Page 4 of 12 I have perused the statements of the prosecution witnesses. Out of total 16 prosecution witnesses examined, P.W.1 Roopa, P.W.2 Saroopa, P.W.3 Mawa and P.W.7 Amra are the eye- witnesses of the crime and P.W.10 Dr. Surendra Kumar Thakral is the Medical Officer who conducted the autopsy of the dead body of the deceased and also examined the injuries on the body of the injured Mawa, Saroopa and Roopa. P.W.1 Roopa deposed in his statement that there was a dispute between his uncle Ganga and the accused appellants regarding beeda of land and proceedings under Section 107 CrPC were also pending between them. On the Dashera of the previous year to the recording of his statement in the court in the day time, when he was in his field, he heard loud cries of Mawa and Bhanwaria. He immediately rushed to the place of occurrence and saw that Sawa was causing injury to Ganga from the blunt side of an axe. Partha caused injury with an iron tanki, Chunki caused injury with an iron pipe and Lalu caused injury with a lathi to deceased Ganga. Mawa rushed to rescue his father, then Sawa caused injury on his forehead with an axe and Partha caused injury on his forehead with tanki. Partha caused second injury on his left elbow. At that time Amra and Saroopa also came there. After causing above injuries, accused rushed from the place of occurrence. Police came in their village and took the injured to the hospital. He got his treatment at Majera Hospital. They took Page 5 of 12 Ganga also to the hospital, but the doctor told them to bring Ganga in the morning. While coming to their residence in the night they stayed at Kelwada at the residence of Pannalal Guru, where Ganga died in the night at 4 a.m. He further deposed that he had reported the matter to the police by a written report Ex.P.1 and the police prepared the memo of place of occurrence, which is Ex.P.2. He also deposed about the preparation of memo Ex.P.3, Ex.P.4 and Ex.P.5. Other eye-witnesses, namely, P.W.2 Saroopa, P.W.3 Mawa and P.W.7 Amra corroborated the evidence of P.W.1 Roopa except with some contradictions or improvements. P.W.4 Pannalal is the witness of the recovery of iron tanki at the instance of Partha. P.W.5 Vijay Singh is the witness of recovery of Kulhari at the instance of the accused appellant Sawa and recovery of stick at the instance of the accused appellant Lalu. P.W.6 Pannalal is the witness at whose residence the deceased alongwith injured stayed in the night while coming back from the hospital to their residence and he deposed that he had seen the injuries on the body of Ganga and he was also the witness of the execution of memo Ex.P.2, Ex.P.3, Ex.P.4 and Ex.P.5. P.W.8 Meethalal deposed that six years earlier to recording of his statement in the court, the land was mortgaged with him by Ganga and he proved the deed of mortgage, Ex.P.3. Page 6 of 12 P.W.9 Nauja deposed that after the incident he visited the residence of Ganga and there he saw injuries on the body of Ganga. P.W.10 Dr. Surendra Kumar Thakral deposed that he was the Medical Officer, Majera and he had conducted the autopsy on the body of the deceased Ganga and found the following external injuries :- (i) Contusion of 2 cm. x 4 cm. size in the middle of right fore arm (ii)Abrasion of 2 cm. x 2 cm. size at left elbow (iii)Contusion of 4 cm. x 15 cm. size extending from back of left ear over ear to above brow of left eye (iv)Contusion of 4 cm. x 12 cm. size extending from back of right ear over ear to above brow of right eye On opening the body of Ganga, he further noticed fracture of both sides of parietal bone. He further deposed that he had conducted the examination of the injuries of Mawa, Saroopa and Roopa and found the following injuries :- Injuries on the body of Mawa : (i) Bruise - 4 cm. x 4 cm. swelling - frontal bone right side – simple – blunt (ii)Abrasion and bruise – 2 cm. x 2 cm. abrasion and 4 cm. x 4 cm. bruise - ilium on hip bone left side – simple – blunt Page 7 of 12 (iii)Abrasion – 2 cm. x 1 cm. - on hip bone right side at ilium – simple – blunt Injuries on the body of Saroopa : (i) Lacerated wound – 2 cm. x 1/2 cm. - back of head occipital region – simple – blunt (ii)Bruise – 5 cm. x 4 cm. swelling – on upper 1/3 of left arm ulna near elbow joint – simple – blunt (iii)Abrasion – 3 cm. x 1 cm. - on elbow joint right hand – simple – blunt Injuries on the body of Roopa : (i) Incised wound 5 cm. x 1/2 cm. - on forehead 1 cm. above left eye brow – simple – sharp (ii)Lacerated wound – 2 cm. x 1/2 cm. - on back head upper margin of parietal bone right side – simple – blunt (iii)Bruise – 4 cm. x 4 cm. swelling – on upper 1/3 of ulna near elbow joint right arm – simple – blunt (iv)Abrasion – 2 cm. x 1/2 cm. - on elbow joint left arm – simple - blunt P.W.11 Kishan Singh did not corroborate the evidence of the prosecution, therefore, he was declared hostile. P.W.12 Anil Kumar was the Patwari and deposed about the revenue record of Khasra No. 237 of Hamerpal. He also deposed that Ex.P.12 site inspection was prepared in his presence. P.W.13 Vakht Singh is the formal witness of bringing 12 sealed packets from the Police Station to the Forensic Science Page 8 of 12 Laboratory. P.W.14 Devi Puri is the Investigating Officer who conducted the whole investigation. P.W.15 Natwarlal Sharma is also the Investigating Officer and he conducted the investigation as Circle Officer, Rajsamand. P.W.16 Kishan Singh was the Head Mohrir and Malkhana Incharge of the Police Station Kelwada at the relevant time and he deposed about depositing of some sealed packets in the Malkhana. The accused appellants in the statements under Section 313 CrPC stated that Ganga and their sons and other ladies came in drunken condition and started to break the Kelu. They also stated that the injuries were caused on their bodies. In defence, accused Pratha examined himself as witness D.W.1 and he deposed about the land dispute in between the complainant, injured, deceased and the accused appellants. Learned counsel for the accused appellants assailed the judgment of the learned trial court on the ground that Ex.P.1 First Page 9 of 12 Information Report was lodged by eye-witness as well as injured Roopa and in the First Information Report the complainant had stated that there were 12 persons who aggressively attacked Ganga, Mawa, Saroopa and Roopa and the named persons were Dau S/o Moti, Varda S/o Bhera, Sawa S/o Partha, Lalu S/o Partha, Umli W/o Sawla, Chunki W/o Lalu, Partha S/o Gamna, Khuma S/o Saroop, Gulabi W/o Dau, Moti S/o Bhera, Chunki W/o Bhera and Ading S/o Deva, whereas all the eye-witnesses examined by the prosecution only attributed 4 persons for all the injuries caused to the deceased Ganga as well as injured. Further in the cross- examination P.W.1 Roopa had admitted the fact of the presence of Dau, Varda, Umli, Khuma, Gulabi, Moti and Uding, whereas P.W.2 Saroopa had only admitted the presence of Partha, Sawa, Lalu and Chunki. Learned counsel for the accused appellant further contended that as per the cross-examination of P.W.10 Dr. Surendra Kumar Thakral, there were 2 injured from the side of the accused party, one of them was Sawa and another was Partha and as per the statement of P.W.10 Dr. Surendra Kumar Thakral, he noticed 5 injuries on the body of accused Sawa, out of which one injury was on the parietal eminence and he observed 2 injuries on the body of Partha, out of which one injury on the right elbow was caused by a sharp weapon and one injury by blunt weapon was caused on parietal bone of head. The prosecution witnesses had Page 10 of 12 not explained any reason for the injuries on the bodies of the two accused appellants, therefore, the genesis of the prosecution story had been intentionally suppressed or withheld by the prosecution witnesses. Learned counsel for the accused appellants further contended that the learned trial court in para 22 discussed the evidence regarding recovery of Kulhari, stick, pipe and tanki, but no blood stains were found on those articles, therefore, the learned trial court had not relied upon the recovery of those articles. Regarding the ocular evidence, learned counsel for the accused appellants contended that the First Information Report contained the names of 12 persons as attributors of the injuries and during the course of the trial, all the eye-witnesses except P.W.1 Roopa had deposed only regarding the presence of 4 persons and further P.W.1 Roopa in his cross-examination admitted the presence of rest of the persons named in the First Information Report, therefore, the ocular evidence produced by the prosecution during the course of trial could not be relied upon and the reliance placed by the learned trial Judge suffer from infirmity. Learned Public Prosecutor strenuously defended the judgment of the learned trial court and further contended that minor contradictions in the statements of the witnesses could not Page 11 of 12 be a ground for disbelieving the entire ocular evidence. I have considered the rival contentions of both the parties and scanned and evaluated the evidence on record. The fact that First Information Report contains the names of twelve persons as assailants and except PW/1 Roopa, all the eye witnesses examined by prosecution , names only four persons who caused injuries. Further, injuries found on the bodies of accused had not been explained. This itself creates doubt about the prosecution story. It inspires that the true genesis of the incident had been wilfully suppressed by the prosecution. In view of the above facts, the evidence produced by the prosecution, does not inspire confidence and faith. Accordingly, the judgment of conviction and order of sentence, passed by the learned trial court deserves to be set aside. In view of the aforementioned discussions, the judgment and order dated 22.08.1988, passed by the learned Addl. District & Sessions Judge, Rajsamand, is set aside and the accused appellants are acquitted of the charges levelled against them. The appeal is allowed accordingly. [KAILASH CHANDRA JOSHI],J. Pramod Page 12 of 12