1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR D.B. Criminal Appeal No. 158/1983 State of Rajasthan Versus Kalya & Others. Date of Judgment: 22.02.2010 Hon'ble Mr. Narendra Kumar Jain,J. Hon'ble Mr. Jitendra Ray Goyal,J. Mr. J.R. Bijarnia, Public Prosecutor, for the State. Mr. Deepak Soni on behalf of Mr. R.N. Sharma, for the respondents. BY THE COURT: Heard learned counsel for the parties. 2. The State of Rajasthan has preferred this appeal against impugned judgment and order dated 21.07.1981 passed by Sessions Judge, Alwar in Criminal Case No. 14/1981 whereby learned trial court acquitted all the five accused respondents namely (1) Kalya son of Shri Prahlad; (2) Ramdhan son of Shri Kalya; (3) Rameshwar son of Shri Kalya; (4) Bodha son of Shri Kalya and (5) Jaily son of Shri Kalya from the charge under Sections 147, 302, 302/149, 323, 324/149 and 325/149 IPC. 2 3. Necessary facts in brief for disposal of the present appeal are that P.W. 1 Rameshwar son of Kanha lodged a report, Exhibit P-1, at Police Station Narainpur District Alwar in respect of present incident wherein one Prabhata died and eight persons sustained injuries. The Police registered FIR No. 37 under Sections302, 147, 148, 149 IPC and started investigation. After completion of the investigation, the Police submitted a charge sheet against five accused respondents. The case was committed for trial to the Court of Sessions Judge who framed charge against the accused persons for the above offences. 4. In support of its case, the Prosecution examined P.W.1 to P.W.17 and also produced documentary evidence Exhibit P-1 to Exhibit P-43. Thereafter statements of the accused persons were recored under Section 313 Cr.P.C. In defence, the accused persons examined D.W.1 to D.W.3 and also produced documentary evidence. The trial court after considering material available on record and submissions of learned for the parties, acquitted all the accused persons. Being aggrieved with the same, the State of 3 Rajasthan preferred an application for leave to appeal before this Court which was granted and the appeal was registered. 5. During the pendency of the appeal, the accused respondent No. 1 Kalya son of Prahlad died and on an application filed by State under Section 394 Cr.P.C., the appeal was dismissed against the Respondent No. 1 Kalya son of Prahlad as abated vide order dated 11.02.2010. 6. The submissions of learned Public Prosecutor is that from the prosecution evidence it is clear that the incident in the present matter took place in the agricultural field of deceased Prabhata whereas the trial court wrongly recorded a finding that the incident took place in the agricultural field of accused Kalya. He further contended that the deceased Prabhata died due to injuries sustained in the present incident, therefore, the prosecution proved the case against all the accused persons beyond all reasonable doubts, therefore, the impugned order of the trial court is liable to be set aside and the accused are liable to be convicted and sentenced. 4 7. Learned counsel for the accused- respondents contended that admittedly three accused persons namely Bodha, Ramdhan and Rameshwar sustained injuries in the same incident and no explanation has been given in this regard by the prosecution which creates serious doubts on the prosecution case. He has also contended that from the material available on record it is clear that the incident took place in the field of accused Kalya and not in the agricultural field of deceased Prabhata. He referred the statements of P.W. 3 Pancha; P.W.10 Kaushalya; P.W.11 Manni; P.W.12 Jagdish; P.W.16 Shankar Lal and P.W.17 Suresh Kumar and contended that it was the complainant party who entered in the field of accused persons and forcefully cut their dhora which was in existence in the agricultural field of accused party. In these circumstances, the accused persons had every right of private defence of their person and property. The learned trial court was fully jsutified in extending the benefit of right of private defence to the accused respondents. Learned counsel for the accused respondents has further contended that there is no 5 illegality, perversity in the impugned judgment of the trial court so as to interfere with the same. He has also argued that it is an appeal against an order of acquittal and it is a settled proposition of law that even if two views are possible on appreciation of the evidence then the view, which is favourable to the accused persons, should be adopted. He, therefore, contended that there is no merit in this appeal and the same be dismissed. 8. We have considered the submissions of learned counsel for the parties and examined the impugned judgment as well as record of the trial court. 9. During the pendency of the appeal, the accused respondent Kalya died and appeal against him was dismissed as abated. So far as the remaining accused persons namely (1) Ramdhan son of Shri Kalya; (2) Rameshwar son of Shri Kalya; (3) Bodha son of Shri Kalya and (4) Jaily son of Shri Kalya are concerned, we have considered the prosecution evidence in detail in the light of reasons assigned by the trial court for their acquittal. Three is no dispute in between both the parties that accused persons Bodha, 6 Ramdhan and Rameshwar sustained number of injuries including four head injuries for which no explanation has been given by the prosecution. Their medical reports Exhibit D-9, D-10 and Exhibit D-11 are also on record. The learned trial court has considered this aspect of the matter and recorded a finding that it was the duty of the prosecution to explain injuries sustained by the accused person in the same incident. Learned trial court has also referred the statements of prosecution witnesses, who admitted that the accused persons sustained injuries in the same incident. The learned trial court has also referred the statement of Investigation Officer wherein he categorically admitted that at the time of arrest of the accused persons, he saw that they had sustained injuries. This fact cannot be disputed for simple reason that the accused persons were also medically examined and their medical reports are available on record. Learned Public Prosecutor is unable to point out any illegality or perversity in the findings of the trial court in this regard so as to take a different view from the view which has been taken by the learned 7 trial court. 10. From the statements of P.W.3 Pancha; P.W.10 Kaushalya; P.W.11 Manni; P.W.12 Jagdish; P.W.16 Shankar Lal and P.W.17 Suresh Kumar, it is clear that the incident in the present matter took place in the agricultural field of accused Kalya. P.W.10 Kuashalya admitted during investigation itself, in her statement recorded under Section 161 Cr.P.C. that the incident took place in the field of Kalya. P.W.16 Shankar Lal, Investigation Officer, in his cross examination before the trial court specifically admitted that he does not know as to where the incident took place. The main Investigating Officer, P.W.17, Suresh Kumar also admitted in this regard that he does not as to where the incident took place. The human blood was recovered from the agricultural field of accused Kalya which is clear from the statement of P.W.16 Shankar Lal, Investigation Officer. 11. In view of the above discussion, it is clear that the prosecution has not come with clean hands and has not explained properly as to where and why the incident took place. It is a settled proposition of 8 law that if prosecution has not come with clean hands and has not explained the incident in a true manner, then it creates serious doubt on the prosecution case and the entire prosecution case can be thrown out only this ground alone. During the course of arguments, learned Public Prosecutor did not point out any infirmity in the findings of the learned trial court in this regard also. 12. Apart from above, the learned trial court has mentioned an important fact that as to how the Investigation Officer has prepared false evidence regarding recovery of weapons in the present case to connect the accused persons with the crime. Learned trial court has referred the Remand Form of the Magistrate dated 3rd December, 1980, Exhibit D-12 which shows that on that day remand was sought for some of the accused persons on the ground that prosecution wants to recover weapons from the accused persons. The remand was refused and the accused persons were sent to judicial custody. It shows that no weapons were recovered from those accused persons in pursuance of an information recorded under Section 27 of the Evidence Act, prior to an application seeking remand 9 of the accused persons on 03rd December, 1980. Learned Public Prosecutor is unable to point out any infirmity, illegality or perversity in the said finding of the learned trial court. We have also examined the record and we do not find any perversity in the said finding recorded by the learned trial court. 13. It is also relevant to mention that this is an appeal against an order of acquittal of the respondents passed by trial court. 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 even if two views are possible on appreciation of evidence, the view which is favourable to the accused should be adopted and order of acquittal should not be interfered with by Appellate Court unless there are some substantial and compelling 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 10 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. 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) 11 and Sachchey Lal Tiwari Vs. State of U.P.(2004(11)SCC 410.” 14. After considering all the facts and circumstances of the case, we do not find any compelling and substantial reason so as to interfere with the impugned order of acquittal passed by the learned trial court. 15. In view of above discussion, we do not find any merit in this appeal and the same is accordingly dismissed. (Jitendra Ray Goyal),J (Narendra Kumar Jain),J. Manoj