1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR D.B. Criminal Appeal No. 524/1984 State of Rajasthan Versus Ramsawroop & Others. Date of Judgment: 09.02.2010 Hon'ble Mr. Narendra Kumar Jain,J. Hon'ble Mr. Raghuvendra S. Rathore,J. Mr. G.s. Rathore, Public Prosecutor, for the State. Mr. Sanjay Mehrish, for the accused- respondents. (Oral) Heard learned counsel for the parties. 2. Learned Sessions Judge, Kota vide its impugned judgment and order dated 27.02.1984 in Sessions Case No. 34/1983 acquitted all the three accused respondents namely Surajmal, Ramswaroop and Gopalal from the charge under Section 302 read with Section 34 IPC levelled against them. Being aggrieved with the same, the State has preferred this appeal after grant of leave to appeal against respondents. 3. Briefly stated the facts of the case 2 are that on 5th March, 1983, P.W. 1 Bhawana lodged a written report at about 9.00 A.M. at Police Station Modak, District Kota that at about 6-6.30 A.M., Ramkaran(P.w. 8) son of Dhanna(P.W. 7) informed him that his brother Madan is lying in unconscious position near Railway Phatak and on this, he, his brother Mohan and his nephew Durga Shankar went there and they saw that Madan was lying there in unconscious position. Madan had sustained number of injuries on his person. Bleeding was coming from his nose, mouth and ear. He asked his brother Madan as to who have inflicted these injuries on his person. Madan told that Surajmal son of Motilal and his colleagues, Ramswaroop son of Kalulal and Gopalal son of Motilal gave beatings on his person. On the basis of this information, the Poilce registered a case under Section 307/34 IPC. 4. Madan was medically examined by P.W. 11 Dr. Anil Saxena at about 9.30 A.M. However, Mdan succumbed to the injuries and his Post Mortem was conducted by P.W. 6 Dr. Y.K. Sharma on the same day at about 5.35 P.M. Thereafter the offence under Section 302/34 IPC was added. The accused persons 3 were arrested. After completion of investigation the Police filed a challan against all the three accused persons for the offence under Section 302/34 IPC. The case was committed for trial to the Court of Sessions Judge, Kota who framed the charge against accused persons for the above offence. The Prosecution examined P.W. 1 to P.W. 13 and produced documentary evidence as Exhibits P-1 to P-24. Therafter, statements of the accused persons were recorded under Section 313 Cr.P.C. Wherein they stated that due to enmity they have been falsely implicated in the case. No evidence was led in defence. The trial court after considering the evidence and submissions of the parties acquitted all the three accused persons from the charge levelled against them. 5. Learned Public Prosecutor referred statements of P.W. 1 to P.W. 5 and contended that from their statements, it is clear that the deceased Madan gave oral dying declaration before them wherein the deceased named all the three accused persons. The said oral dying declaration has been proved and corroborated by the statements of P.W. 1 4 to P.W. 5. He also referred the statements of P.W. 6 and P.W. 11 and contended that the deceased sustained number of injuries, therefore, the oral dying declaration is corroborated by medical evidence also. Learnd Public Prosecutor has further contended that the prosecution proved the charge against the accused persons beyond all the reasonable doubts but learned trial court committed illegality in acquiting the accused respondents. Therefore, the order of the learned trial court is liable to be set aside and the accused persons are liable to be convicted and sentenced. 6. Learned counsel for the respondents contended that the learned trial court has considered the cross examination of P.W. 1 to P.W. 5 in detail and has assigned the cogent reasons for not believing their statements. The trial court has also considered the statements of independent witnesses namely Dhanna, P.W. 7 and Ramkaran, P.W. 8 and thereafter, recored a finding that P.W. 1 to P.W. 5 have stated different stories about oral dying declaration made before them by the deceased. He also referred the statements of P.W. 6 Dr. Y.K. Sharma and P.W. 5 11 Dr. Anil Saxena who admitted that it cannot be denied that from the injuries sustained by the deceased it was just possible that he became unconscious. He, therefore, contended that the deceased was not in a position to give any oral dying declaration before P.W. 1 to P.W. 5 and accused persons have been falsely implicated due to so called enmity, as stated in the FIR as well as statements of P.W. 1 to P.W. 5. He has also argued that this is an appeal against an order of acquittal and even if one view, as contended by learned Public Prosecutor, is also possible, on appreciation of the evidence and another view is also possible, as per the findings of the trial court, then in that event, the benefit of doubt has to be given to the accused. Therefore, the appeal filed by the State be dismissed. 7. We have considered the submissions of learned counsel for the parties and examined the impugned judgment as well as record of the trial court. 8. The story of incident in the present case started when P.W. 7 Dhanna heard some noise when he was near Railway Phatak No. 86. 6 He met accused Surajmal who was going on cycle and he asked him as to from where the noise is coming. Surajmal told him that Madan is shouting. Therafter, he went towards that side and saw that it was Madan who was shouting due to severe injuries on his person. Since he was to go on his duty, therefore, he asked his son Ramkaran to inform the family members of Madan about it. Thereafter P.W. 1 to P.W. 3 came at the spot. However, during trial, it has been stated that all the persons i.e. P.W. 1 to P.W. 5 came at the spot soon after the receipt of information from P.W. 8 Ramkaran. Be that as it may. P.W. 1 to P.W. 5 have stated that they asked the deceased Madan as to who have inflicted injuries on his person and Madan told them that all the accused persons namely Ramswaroop, Gopalal and Surajmal have inflicted injuries on his person. 9. The question for consideration by this Court is whether an oral dying declaration given by deceased Madan before P.W. 1 to P.W. 5 is believable and can be relied upon in the facts and circumstances of the present case. 7 10. P.W. 1 Bhawana in his statement admitted that he did not ask Madan as to why the accused persons gave beatings on his person and by which weapon they inflicted injuries. The trial court has discussed the cross examination of P.W. 1 in detail in the context of so called oral dying declaration of deceased in para 58 of the impugned judgment. 11. P.W. 2 Mohan in his cross examination specifically admitted that Madan had also told the villagers that accused persons gave beatings on his person. It is relevant to mention that not a single witness from village has been examined as an independent witness in the present case on behalf of the prosecution. It further shows that statement of P.W. 1 is contrary to statement of P.W. 2 or the same is not corroborated and their statements are contradictory to each other. 12. P.W. 3 Durga Shankar in his corss examination stated that apart from telling the names of accused persons, the deceased Madan also narrated the story that when he was going to his field and reached near old Gadar, the accused persons attacked him, all of sudden and inflicted number of injuries on 8 his person. It is relevant to mention that P.W. 1 and P.W. 2 both have admitted that Madan did not say anything except that accused persons gave beatings on his person. P.W. 1 further admitted that when he asked Madan as to who have inflicted injuries on his person then for sometime he did not speak a single word and later on he told him that the accused persons gave beatings on his person. 13. P.W. 4 Roopchand also admitted in his cross examination that number of villagers asked his father deceased Madan and his father told that the accused persons gave beatings but no independent witness in the present case was examined on behalf of the prosecution. 14. P.W. 5 Bhoolibai has also not supported the statements of P.W. 1 to P.W. 4 in the same manner in which they have narrated the facts of the case. 15. Apart from above, it is relevant to mention that P.W. 1 and P.W. 2 both are brothers of deceased; P.W. 3 and P.W. 4 are sons of deceased and P.W. 5 is the wife of deceased. Although their statements cannot be disbelieved only on the ground that they 9 are close relatives of the deceased, but as discussed above, it is clear that their statements are contrary to each other and are not safe in the facts and circumstances of the present case to convict the accused persons. In the facts and circumstances of the case, their statements cannot be believed and relied upon as mentioned above. 16. P.W. 6 and P.W. 11 both doctors have also admitted that looking to the nature of injuries sustained by deceased, they cannot deny this fact that the deceased became unconscious soon after he sustained injuries. Learned trial court has discussed the evidence in detail and has not believed the prosecution story on the basis of statements of P.W. 1 to P.W. 5 and in our view the learned trial court was fully justified in coming to this conclusion. 17. We are also conscious of the fact that it is an appeal against an order of acquittal. The view, which has been taken by the learned trial court on appreciation of the prosecution evidence, cannot be said to be perverse and if one view as stated by learned counsel for the State is also believed to be true, then also, it is settled 10 law that even if two views are possible, in that event the view, which is favourable to the accused, should be adopted. 18. The Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Bacchudas alias Balaram & Others, reported in AIR 2007 SC 1236 has held that the order of acquittal passed by trial court should not be interfered with, unless there are compelling and substantial reasons for doing so. Para 9 of the judgment(supra) is reproduced as under: “9. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, on 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 paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of injustice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. 11 In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused really committed any offences or not. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there is compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade Vs. State of Maharahstra(1973(2)SCC 793); Ramesh Babulal Doshi Vs. State of Gujarat(1996(9)SCC 225); Jaswant Vs. State of Harayana(2000(4)SCC 484); Rajkishore Jha Vs. State of Bihar(2003(11)SCC 519); State of Punjab Vs. Karnail Singh (2003(11)SCC 271); State of Punjab Vs. Phola Singh(2003 (11)SCC 58); Suchand Pal Vs. Phani Pal(2003(11)SCC 527) and Sachchey Lal Tiwari Vs. State of U.P.(2004(11)SCC 410.” 19. In view of the above discussion, we are satisfied that the reasons assigned by the trial court for acquittal of the accused respondents are based on proper appreciation 12 of the evidence and we do not find any illegality or perversity with the same or any compelling or substantial reasons for interference in the order of the trial court. 20. 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