1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR D.B. Criminal Appeal No. 379/1983 State of Rajasthan Versus Gulab Singh & Others Date of Judgment: 23.03.2010 Hon'ble Mr. Narendra Kumar Jain,J. Hon'ble Mrs. Meena V. Gomber,J. Mr. Pradeep Shrimal, Public Prosecutor, for the State. Mr. P.K. Sharma, for the accused-respondents. REPORTABLE BY THE COURT:(Per Hon'ble N.K. Jain, J.) Heard learned counsel for the parties. 2. This appeal, on behalf of State of Rajasthan, after grant of leave to appeal, is directed against the impugned judgment and order dated 29th November, 1982 passed by Additional Sessions Judge, Bharatpur in Sessions Case No. 1/1981(126/1981), whereby the learned trial court acquitted the accused respondents, namely; Gulab Singh and Chandan Singh from the charges under Sections 147 and 302 IPC and remaining accused respondents, namely; Amarchand, Chandrabhan, Dataram, Ramchandra, Dharam Singh and Deshraj from the 2 charges under Sections 148 and 302 read with 149 IPC. 3. Briefly stated the facts of the appeal are that P.W.3, Devi Singh, brother of deceased Sahab Singh lodged a written report, Exhibit P-10 on 06th September, 1981 at Police Station Kotwali, Bharatpur alleging that on 05th September, 1981 at about 6.30 p.m., when his brother Sahab Singh was going to factory on duty from his house, the accused persons inflicted injuries on his person by Farsa and knives which resulted in his death. On the basis of this written report, FIR No. 562/1981 was registered under Section 302 IPC. The Police started investigation and arrested the accused persons. After completion of investigation, the Police filed charge sheet against all the accused- respondents. The trial court framed charges against the accused Gulab Singh and Chandan Singh for offences under Sections 147 and 302 IPC and against remaining six accused persons for offences under Sections 148 and 302 read with 149 IPC. The accused persons denied the charges and claimed trial. The prosecution examined eight witnesses and produced documentary evidence Exhibit P-1 to Exhibit 3 P-31. Thereafter statements of the accused persons under Section 313 Cr.P.C. were recorded wherein they stated that they have been falsely implicated in the case. No witness was examined in defence, however, 7 documents i.e. Exhibit D-1 to Exhibit D-7 were exhibited on their behalf. Learned trial court after considering the submissions of both the parties and examining the record, acquitted the accused respondents from the charges framed against them. 4. It is relevant to mention that during the pendency of the appeal, the accused respondents, namely; Gulab Singh S/o Shri Bhoor Singh; Data Ram S/o Bhajan Lal and Ram Chandra S/o Shri Raghunath died and State appeal against them was dismissed as abated. 5. Submission of learned Public Prosecutor is that it is a case wherein three persons namely P.W.1 Khem Singh; P.W.2 Maharaj Singh and P.W.4 Hari Singh were examined as eye witnesses, but only on the basis of minor contradictions in their statements, the learned trial court wrongly disbelieved their testimony. He read the statements of these three eye witnesses and contended that their testimony is reliable 4 and it should be relied upon. He further contended that from their testimony charges against the accused respondents are fully proved and this is a fit case wherein the finding of acquittal of the respondents recorded by the learned trial court be set aside and the accused respondents be convicted. 6. Learned counsel for the accused- respondents contended that learned trial court was fully justified in not believing the testimony of P.W.1 Khem Singh; P.W.2 Maharaj Singh and P.W.4 Hari Singh. He contended that the findings of the learned trial court is based on proper appreciation of evidence. He also referred to the relevant portions of statements of these eye witnesses and contended that from their testimony it is clear that they are not the eye witnesses of the incident and the learned trial court was fully justified in acquitting the accused respondents. Therefore, no interference in the findings of the learned trial court is called for and the appeal be dismissed. 7. We have considered the submissions of learned counsels for the parties and minutely 5 scanned the impugned judgment and record of the trial court. 8. P.W.3 Devi Singh, brother of deceased Sahab Singh, lodged written report Exhibit P- 10, on 06th September, 1981 wherein he mentioned that at about 6.30 p.m. his brother Sahab Singh while going for duty to his factory passed through the field of Mehtab Singh, where some persons were already sitting. As soon as Sahab Singh reached there, he was caught hold of by them and they started inflicting injuries on his person. He further mentioned that P.W.2 Maharaj Singh was also coming behind Sahab Singh, who saw the incident and came back and informed P.W.3, Devi Singh. Devi Singh in his statement before the trial court stated that he was told about the death of his brother Sahab Singh but he remained at his house and he went near the dead body only in the morning and FIR was also lodged next morning. There is no dispute that P.W.3 Devi Singh is not an eye witness, however, the written report was lodged by him. In his cross examination he admitted that number of facts were not narrated by him in written report, Exhibit P-10, and number of facts were 6 wrongly incorporated in the same. He stated that he only dictated the report which was written by some constable. In case, the statement of P.W.3, Devi Singh is read carefully alongwith the contents of written report, Exhibit P-10, we find that there were number of improvements and contradictions in the same and it appears that his statement is totally false. Learned trial court has considered the statement of P.W.3, Devi Singh in the impugned judgment in Paras 10 to 14 and he was also confronted with his statement recorded under Section 161 Cr.P.C., Exhibit D-3. 9. We have examined the reasons assigned by the learned trial court for disbelieving the statement of P.W.3, Devi Singh and we are satisfied that the reasons assigned by the learned trial court in this regard are justified. Learned Public Prosecutor is unable to point out any illegality or perversity in the findings of the learned trial court in the same. 10. Learned trial court has considered the statement of P.W.2, Maharaj Singh in the impugned judgment from paras 15 to 19 and we have carefully examined the reasons assigned 7 by the learned trial court for disbelieving his testimony also. We have also examined the statements of P.W.2, Maharaj Singh recorded before the learned trial court and his statement, Exhibit D-2, recorded by the Police during investigation. Learned trial court has observed about his unnatural conduct as he claims to have seen accused persons inflicting injuries on the person of his brother deceased Sahab Singh but neither he intervened nor did he lodge the report. Instead he came back home and remained there with P.W.3, Devi Singh, (his another brother) for the whole night. Learned trial court has also observed that he admitted that duty time of the deceased was from 12.00 midnight whereas the time of incident has been mentioned to be between 6.30 p.m. to 7.00 p.m. Learned trial court has further observed that all the eye witnesses including P.W.2 stated that Girdhari and Ram Singh were sent by them at the place of occurrence, where the body of deceased was lying but both these persons were not examined by the prosecution before the trial court. P.W. 7, Shashikant Joshi, Investigating Officer also admitted in his cross-examination that from 8 his investigation he did not find that Girdhari and Ram Singh were sent after the incident to be with the body of deceased. It is for this reason that he did not record their statements under Section 161 Cr.P.C. The reasons assigned by the learned trial court for disbelieving the testimony of P.W.2, Maharaj Singh, appears to be justified and in our view the same does not call for any interference by this Court. Even otherwise, learned Public Prosecutor has failed to point out any illegality or perversity in the findings of the learned trial court for the same. 11. So far as the remaining two witnesses P.W.1 Khem Singh and P.W.4 Hari Singh are concerned, it is relevant to mention that P.W.1, Khem Singh in his statement before the learned trial court specifically admitted that he did not go to the place of incident. This fact clearly shows that he was not an eye witness. Learned trial court, in para 20 of the impugned judgment, has considered the statements of both the witnesses i.e. P.W.1, Khem Singh and P.W.4, Hari Singh in detail and has rightly recorded a finding that their testimony is liable to be discarded. Learned 9 Public Prosecutor could not show us any illegality or perversity in the findings of the learned trial court in this regard also. In these circumstances, we are of the view that no interference in the said findings of the learned trial court is called for by this Court. 12. Apart from above, learned trial court has also observed that as per First Information Report and the statement of P.W.3, Devi Singh, the deceased went at about 6.30 p.m. whereas from the evidence it is clear that his duty time was from 12 midnight. P.W.8 Dr. Bhopal Singh, who conducted the post mortem of the deceased, proved, Exhibit P-31, Post Mortem Report and stated in his statement that stomach was full of semi digested food with slight blood clots and the last meal taken by the deceased was 6 to 7 hours before the death. The post mortem was conducted on 06th September, 1981 at 12.30 p.m. Learned trial court, therefore, came to a conclusion that the incident did not take place in between 6.00 p.m. to 7.00 p.m. on 05th September, 1981. 13. We have also examined the matter in detail in this regard and we are satisfied 10 that finding of learned trial court in this regard is also correct and no interference in the same is called for. 14. Learned trial court, apart from above, has also considered the circumstantial evidence produced by prosecution against three accused persons namely Chandan Singh, Gulab Singh and Dharam Singh. So far as accused Gulab Singh is concerned, a lathi was recovered at his instance vide Recovery Memo, Exhibit P-15, but both the motbirs namely P.W.5 Shivram and P.W.6 Prem Singh were declared hostile by the prosecution. Similarly, his clothes were also recovered vide Exhibit P-23 and both the motbirs namely Kalyan Singh and Madho were not examined on behalf of the prosecution. The learned trial court, in these circumstances, disbelieved the prosecution evidence and in our view rightly so. 15. So far as accused Chandan Singh is concerned, a lathi was recovered in pursuance of his information vide Recovery Memo, Exhibit P-16, however, both the independent witnesses namely P.W.5, Shivram and P.W.6, Prem Singh were declared hostile by the prosecution. Similarly, his clothes were 11 also recovered vide Recovery Memo, Exhibit P- 22 and the same was also disbelieved by the learned trial court. Learned Public Prosecutor is unable to point out any illegality or perversity in the said finding recorded by the learned trial court and in our view, no interference in the said finding is called for. 16. Learned trial court has also considered the circumstantial evidence against accused Dharam Singh as a Simco Card of deceased was recovered as per his information vide Recovery Memo, Exhibit P-27. However, both the independent witnesses of the said memo namely Shivram and Prem Singh were declared hostile by the prosecution and in absence of independent witnesses, the learned trial court disbelieved the said circumstantial evidence also. 17. In view of above, it is clear that the learned trial court was right in disbelieving the statements of P.W.1, Khem Singh, P.W.2, Maharaj Singh and P.W.4, Hari Singh and no illegality or perversity has been pointed out by learned Public Prosecutor in this regard. It is also relevant to mention that it is an appeal against an order 12 of acquittal passed by the trial court and proposition of law in this regard is well settled. The Hon'ble Apex Court in the case of State of Madhya Pradesh Vs. Bacchudas alias Balaram & Others, reported in AIR 2007 SC 1236 has observed 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. The Hon'ble Supreme Court has further observed that the order of acquittal should not be interfered with, unless there are compelling and substantial reasons for doing so. So far as the present case is concerned, we find that even two views are not possible on the basis of proper appreciation of evidence and we are fully satisfied that the prosecution has failed to prove the charges against the accused persons. 18. In view of above, we do not find any merit in this appeal and the same is accordingly dismissed. (Meena V. Gomber),J. (Narendra Kumar Jain),J. Manoj, Item No.5.