1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR D.B. Criminal Appeal No. 227/1983 State of Rajasthan Versus Bansi Dhar & Another. Date of Judgment: 11.02.2010 Hon'ble Mr. Narendra Kumar Jain,J. Hon'ble Mr. Raghuvendra S. Rathore,J. Mr. G.S. Rathore, Public Prosecutor, for the State. Mr. Ravi Shankar Sharma, for the respondents. BY THE COURT: Heard learned counsel for the parties. 2. This appeal, on behalf of State of Rajasthan, is directed against the impugned judgment dated 25th July, 1981 passed by Sessions Judge, Jhunjhunu in Sessions Case No. 15/1981 whereby both the accused respondents namely Bansi Dhar son of Koshori Lal and Bisambhar son of Ghisa Ram were acquitted from the charges levelled against them for the offences under Sections 302 and 201 IPC. 3. Briefly stated the facts of the case are that P.W.2, Rameshwar son of Jugal 2 Kishore lodged a written report, Exhibit P-1, at Police Station Buhana, District Jhunjhunu on 16th November, 1980 about death of deceased Mangal Chand son of Bhagwana Ram about 9 days ago. It was alleged in the said report that Bishambhar and Bansi Dhar were irrigating the land of deceased Mangal Chand. When Mangal Chand resisted for it, he was beaten by accused persons and due to that he died. 4. On the basis of this information, F.I.R. No. 54 was registered under Sections 302 and 201 IPC and investigation commenced. Since dead body of Mangal Chand had already been cremated, therefore, no post mortem was conducted in the case. The prosecution, after completion of investigation, filed a challan against the accused respondents in the Court of Judicial Magistrate, who committed the case for trial to the Court of Sessions Judge, who framed charge against accused persons for the above offences. 5. The prosecution examined P.W. 1 to P.W. 12. Thereafter, statements of accused respondents were recorded under Section 313 Cr.P.C. No evidence was led in defence. The trial court after considering the submissions of the parties and record, acquitted both the 3 accused persons vide impugned judgment. 6. Submission of learned Public Prosecutor is that in the present case the motive to kill the deceased by accused persons is established from the statements of prosecution witnesses. The deceased was issueless and he was having some agricultural land. He had adopted his sister's son, therefore, the accused, who were his nephews, had enmity with the deceased. He has also contended that from the statement of P.W. 1, Mahadeo Prasad, it is clear that the deceased had told him that the accused persons had inflicted injuries by lathi on his person. Therefore, there was an oral dying declaration of the deceased before P.W. 1, which should have been believed in the present case. He, therefore, contended that the trial court committed an illegality in acquitting the accused respondents. 7. Learned counsel for the respondents contended that from the statements of prosecution witnesses, it is clear that it was Mangal Chand who inflicted injury on the person of Bansi Dhar initially and thereafter, the accused persons pushed Mangal Chand and he fell down. No injury was 4 inflicted on the person of deceased. However, Mangal Chand died on or about 13th November, 1980 i.e. after six days. No report was lodged of the incident nor it was lodged soon after the death of Mangal Chand. He further contended that so far as the so called oral dying declaration of the deceased before P.W.1, Mahadeo Prasad is concerned, the same cannot be relied upon for the reason that P.W.1 did not disclose the said fact before investigating agency when his statement under Section 161 Cr.P.C.(Exhibit D-1) Was recorded. Therefore, in fact, it is an improvement in the statement of P.W.1, which has rightly been discarded by the trial court. Learned counsel for the respondents also contended that no independent witness has been examined in the present case to connect the accused persons with the crime. The prosecution witnesses had enmity with the accused persons, which is clear from their cross examination. Therefore, the trial court has not committed any illegality in acquitting the accused respondents. 8. We have considered the submissions of learned counsel for the parties and examined the impugned judgment as well as record of 5 the trial court. 9. The incident in the present case took place on 07th November, 1980; the deceased Mangal Chand died on 13th November, 1980 and FIR was lodged in the case on 16th November, 1980 by P.W.2, Rameshwar. 10. From the statements of prosecution witnesses; Mahadeo Prasad, Rameshwar, Motilal, Jagdish Prasad and Kishori Lal, it is clear that there was no external injury visible on the person of the deceased. The prosecution witnesses had admitted that it was deceased Mangal Chand, who initially inflicted injury on the person of Bansi Dhar. 11. Although P.W.1, Mahadeo Prasad stated that Mangal Chand told him that accused persons were irrigating his land and when he resisted, then they inflicted injuries on his person, but the said fact was not disclosed by him in his statement under Section 161 Cr.P.C.(Exhibit D-1) during investigation of the case. Therefore, there is an improvement in the statement of P.W.1, Mahadeo Prasad and cannot be believed and relied upon. 12. P.W.1, Mahadeo Prasad in his cross examination has admitted that Rameshwar, Motilal and Jagdish Prasad who are 6 prosecution witnesses, are his cousin. 13. P.W.2, Rameshwar has specifically admitted the fact in his cross examination that mother of accused Bansi Dhar, Savitri had instituted a suit against him in Nyay Panchayat but he does not remember. The enmity in between both the parties is established from the statement of P.W.2, Rameshwar. 14. Learned Public Prosecutor admits that there is no eye witness in the present case and the entire case is based on circumstantial evidence, i.e. so called oral dying declaration of the deceased made before P.W.1, Mahadeo Prasad and the recovery of weapon, i.e. lathi, at the instance of the accuses persons. So far as so called oral dying declaration is concerned, the same has rightly been discarded by the Sessions Judge, as the said fact of dying declaration was not disclosed by P.W.1, Mahadeo Prasad in his statement(Exhibit D-1). So far as the recovery of weapon, i.e. lathi is concerned, that was not found to be blood stained and it is very difficult to connect the same with the crime. 15. The incident took place on 7th 7 November, 1980. No report was lodged for 9 days and no reasonable explanation was given for it. The deceased died on 13th November, 1980, but no report was lodged upto 16th November, 1980. 16. From the entire prosecution evidence, it appears that there was no motive with the accused respondents to commit murder of the deceased. The deceased was 77-78 years of age at the time of death. The prosecution has not produced on record any document to show that the deceased had adopted his sister's son. Admittedly, the post mortem of the dead body of the deceased was not conducted in the present case. The cause of death is also not known in the present case. In these circumstances, we are satisfied that reasons assigned by the trial court for acquittal of accused persons are based on proper appreciation of evidence. Learned Public Prosecutor has not pointed out any illegality or perversity in the findings recorded by the trial court so as to interfere with the same. 17. Apart from above, it is also relevant to mention that this is an appeal against an order of acquittal and it is settled law that 8 when two views are possible on appreciation of the evidence, the view which is favourable to the accused persons should be adopted and the accused persons are entitled to get the benefit of doubt. We do not find any substantial or compelling reasons to interfere with the order of acquittal. 18. In view of above discussion, we do not find any merit in this appeal and the same is accordingly dismissed. (Raghuvendra S. Rathore),J (Narendra Kumar Jain),J. Manoj