1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT State of Rajasthan vs. Prahlad Ram & Ors. D.B.Cri. (Jail) Appeal No.105/1987 Under Section 378(1) Cr.P.C. against the judgment dated 10.11.86 passed by the Sessions Judge, Balotra in Sessions Case No.01/1986. ....... Date of Judgment: 15th January, 2008 PRESENT HON'BLE MR.JUSTICE BHAGWATI PRASAD HON'BLE MR.JUSTICE BHANWAROO KHAN Mr.JPS.Choudhary, Public Prosecutor. Mr. R.K.Charan ] for the respondents. Mr.J.S.Choudhary ] BY THE COURT :(PER HON.MR.BHAGWATI PRASAD,J.)- This appeal is filed by the State against the 3 accused persons , namely, Prahlad Ram, Vishna Ram and Hema Ram. Out of the three respondents, one respondent Hema Ram has died, therefore, appeal against him stands abated and the State appeal now survives only against Prahlad Ram and Vishna Ram. 2 The prosecution was initiated on the basis of the first information report, lodged at Police Station, Sindari on 23.11.85, being FIR No.86 by one Deda Ram, PW/3. According to the version given in the first information report , deceased Himmataram had gone to fetch a water tank at Takuberi. When he was drawing water from the well, at that time, it is said that the accused Prahlad Ram, Vishnu Ram and Hema Ram came armed with 'dhariya' and 'lathi'. Prahlad Ram gave 2 dhariya blows to his brother. Having sustained those blows, his brother fell on the ground. When he heard the cries he rushed towards the spot. His aunt Anadu, PW/4, also rushed from the dhani. In the meanwhile, Hema Ram and Vishna Ram hit their lathies on the victim. Thereafter the accused fled away with their weapons. This incident happened around 09.00 AM and then the report was lodged. With the lodging of the report, investigation started. After usual investigation, charge sheet was filed and the case was committed to the court of Sessions, where charges were framed against the accused persons under section 302/34 IPC. Accused denied the charges and claimed trial. At the trial, prosecution examined 13 witnesses and 3 tendered 30 documents in evidence. In defence 4 witnesses were examined and 13 documents were exhibited. Accused was examined under Section 313 Cr.P.C. They denied their complicity. After considering the case of the prosecution, the trial court acquitted the accused of the charges levelled against them. It was argued on behalf of the defence, before the learned Sessions Judge, that in Ex.10, the first information report, the names of the witnesses PW/3 Deda Ram and PW/4 Anadu alone have been incorporated and PW/5 Dallaram and PW/6 Kohla Ram have not been shown to be the eye witnesses, though they were examined at the trial, as eye witnesses. The so called eye witnesses did not accompany the deceased to the hospital and also PW/5 Dallaram and PW/6 Kohla Ram had not gone to the police station to make report. This is also brought to the notice of the trial court that Kana, Rambha, Mirga, Teekma, Jala and Mana were alleged as eye witnesses but none of them were examined by the prosecution. The case had proceeded on the testimony of PW/3 Deda Ram , PW/4 Anadu, PW/5 Dalla Ram and PW/6 Kohla Ram. They were examined by police and their statements in court are at variance with their police statement under section 161 Cr.P.C. It was urged 4 on behalf of the defence, before the trial court, that the prosecution has materially altered the story as it was initially given, so much so that the weapons and the injuries have also been altered and thus there is a material change in the prosecution case. If the case of the prosecution is examined, in the light of the medical evidence, then also it does not conform to that . It was further argued that witnesses Deda Ram, Anadu and Dalla Ram have been changing the tenor of their deposition according to their convenience. The aforesaid witnesses were not examined by the police forthwith and these witnesses were examined late. To illustrate, PW/4 Anadu was examined 2 days after the incident. Similarly, PW/5 Dalla Ram was examined after 12-13 days. The most important deviation which the witnesses have done is at the investigation stage the injury by dhariya was said to be caused by Prahlad Ram. But at trial this injury has been assigned to Hema Ram, now a deceased respondent. The beginning of the story is not consistently adhered to and a different version is given about the testimony of eye witnesses, as to how the incident started. If the witnesses are not one on the point, then it shows that all of them were not present, there was previous animosity and, therefore, the witnesses were tainted. 5 The trial court, after considering the arguments of the defence and the prosecution , came to the conclusion that PW/5 Dallaram and PW/6 Kohla Ram were not named in the first information report. They were not found at the scene of occurrence. In their earlier statement given to the police, explanation about the missing of the names of these witnesses in police papers, is given by PW/3 Dedaram that since he had not known the name of PW/6 Kohlaram, therefore, he did not give his name. PW/4 Mst. Antu admitted that she did not state the name of Dalla Ram and Kohla Ram in her police statement, Ex.D/3. Ex.D/3 was recorded on 23.11.85 and others were recorded on 25.11.85. This late examination has gone against the prosecution and the trial court came to the conclusion that witnesses Dallaram and Kohla ram were not present when the incident occurred so much so that the trial court noticed the testimony of Anadu where she has stated that Dallaram and Kohlaram had not come on the scene of occurrence. Though PW/3 Dedaram states that they came, but when one witness states that these witnesses did not come, then that will prevail with the trial court and the trial court has held that these 2 witnesses did not go on the scene of occurrence. 6 Regarding witness PW/3 Dedaram, the trial court has stated that when the incident started he was at his dhani. So was PW/4 Anadu. They had been alarmed by the shouts at the scene of occurrence and then they came. The trial court has found that from their places the scene of occurrence is not visible and they were not on the scene of occurrence and, therefore, they were not in a position to look at it. Further, the statements have been changed and prevaricated about the manner of occurrence. In the initial version, Ex.P/1, Deda Ram had stated that Prahlad had dhariya in his hand. In Ex.D/1, part of police statement, Prahlad had dhariya and Hema had lathi in their hands, is denied, whereas at the trial, it is said that dhariya was with Hema. Therefore, this major contradiction had weighed heavily with the trial court and the trial court had held that the death is caused by dhariya , which is attributed to Hema, who is already dead. Prahlad has been attributed dhariya at the investigation stage but this version has been subsequently changed. At the trial Prahlad is said to have been armed with lathi and Hema Ram is said to have been armed with dhariya . Hema did not cause dhariya injury on the deceased, whereas this is the case at the trail as stated by the other two eye witnesses. PW/4 Anadu and PW/5 Dallaram have stated that Hema 7 Ram caused dhariya injury on the head of the deceased and Prahlad Ram and Hema Ram had caused injuries with sticks. This has materially altered the tenor of the prosecution case. Hema Ram having been attributed the fatal injury, he is since dead, and the case abates against him and the injuries caused by the other accused were not sufficient in bringing home the guilt therefore, the trial court acquitted the accused. We have heard the learned counsel for the State and the learned counsel for the accused. The reasoning given by the trial court, for disbelieving the testimony of eye witnesses, is so sound that it hardly requires any interference, in an appeal against acquittal. The prosecution case at the inception, was that Prahlad Ram had caused dhariya blow to the deceased, which resulted into his death. At the trial , the injury and the weapon i.e. dhariya has been assigned to Hema Ram and Hema Ram is not before us, having died during the pendency of appeal. Therefore, author of the deadly blow, being not there in appeal against acquittal, it is not proper for us to hold that the findings of the trial court are perverse. They are in consonance with the testimony given at the trial. Out of the four eye witnesses , 2 were not named 8 in the first information report, and the remaining 2 could not see the incident and thus we do not find any fault in the findings so recorded by the trial court, to acquit the accused and thus, in the result we hold that the prosecution has miserably failed to make out a case against the accused for their conviction. The prosecution has miserably failed to establish its case. We see no reason to interfere with the order of acquittal. Consequently we dismiss the State appeal. The accused are on bail, they need no surrender to their bail bonds, their bail bond are cancelled. (BHANWAROO KHAN), J. (BHAGWATI PRASAD), J. L.George