1 THE HIGH COURT OF JUDICATURE FOR RAJASTAHN AT JAIPUR BENCH, JAIPUR D.B. Criminal Appeal No.44/1985 State of Rajasthan Versus Bajrang Lal 11.02.2010 Hon'ble Mr. Narendra Kumar Jain,J. Hon'ble Mr. Raghuvendra S. Rathore,J. Mr. G.S. Rathore, PP for the State Mr. Rajesh Chaudhary on behalf of Mr. Biri Singh, for respondents. BY THE COURT: Heard the learned counsel for the parties. 2. The State of Rajasthan has preferred this appeal against order of acquittal of respondent Bajrang Lal dated 29th March, 1984 passed by Sessions Judge, Kota in Sessions Case No.123/1983 for the offence under Section 302 IPC. 3. It is relevant to mention that an application for leave to appeal was filed against both the accused persons namely Bajrang Lal and Nandbehari, who were acquitted by the trial court. However, this court granted leave to appeal against accused respondent Bajrang Lal only and rejected the same against accused-respondent Nandbehari. 4. Briefly stated the facts of the case 2 are that PW-12 Mohan Lal handed over a written report addressed to the SHO, Police Station Budhadeet to Kailash Naraian, ASI at 2.45 PM at Hospital at Kota, which was sent for registering the FIR at Police Station Budhadeet. It was alleged in the written report that his cousin Rameshwar Dayal was irrigating his land at about 8.00 AM and Bajrang Lal s/o Nathu lal and three other persons, whose names will be disclosed by Rameshwar, started quarreling on the point of irrigation and thereafter Bajrang Lal inflicted a blow by 'Phawra' from sharp side on the head of Rameshwar. Thereafter, Rameshwar fell down and another injury was further inflicted by Bajrang Lal on him. The incident was seen by Ram Charan, Ram narayan and Janki Lal. On the basis of above information, the case was registered under Section 324/34 IPC. The injured succumbed to the injuries and the case was lateron converted into an offence under Section 302 IPC. 5. The prosecution, after completion of investigation, filed a chargesheet against both the accused persons in the court of Judicial Magistrate who committed the case for trial to the court of Sessions Judge. The 3 trial court framed charge against accused Bajrang Lal for offence under Section 302 IPC and against accused Nandbehari for the offence under Section 302 read with Section 109 IPC. Both the accused persons denied the charge and claimed trial. The prosecution examined 14 witnesses and produced documentary evidence Exhibits P-1 to P-20. Thereafter, statements of accused persons were recorded under Section 313 Cr.P.C. In defence, the statement of DW-1 was recorded. The trial court after considering the evidence on record and submission of parties acquitted both the accused persons from the charges leveled against them. 6. The submission of the learned counsel for the State is that this is a case wherein there were three eye-witnesses of the incident, although, one eye-witness PW-9 Janki Lal was declared hostile, but remaining two eye-witnesses PW-7 Ram Charan and PW-8 Ram Naraian supported the prosecution case. Their statements were corroborated by the medical evidence also. In these circumstances, the prosecution had proved the case against the accused persons beyond all reasonable doubt and trial court committed an illegality in acquitting them. 4 7. The learned counsel for the respondents supported the impugned judgment passed by the trial court and contended that learned trial court committed no illegality in discarding the testimony of PW-7 Ram Charan and PW-8 Ram Narain as their statements were not only self-contradictory, but they were contrary to each other as well as the FIR and medical report also. Therefore, this is a case wherein no interference in the order of acquittal passed by the trial court is called for. 8. We have considered the submissions of the learned counsel for the parties in the light of the impugned judgment as well as the record of the trial court. 9. The incident in the present case took place in village Bislai. The deceased Rameshwar was initially taken to Sultanpur Hospital and lateron to Kota for treatment. PW-7 Ram Charan was accompanied him throughout, however, no FIR was registered by him. The FIR was neither registered at Police Station Sultanpur nor at Police Station Budhadeet. However, it was handed over at Kota to Kailash Narain, ASI, who has not been examined in the present case. This fact becomes relevant for the reasons that incident 5 took place at 8.00 AM and the distance of village Budhadeet is only 8 kilometers. The injury report Exhibit P-3 was prepared at Government Hospital, Sultanpur at 11.24 AM before handing over the written report Exhibit P-14 at 2.45 PM at Kota. From the above facts,it is clear that injury report was prepared without any requisition by the police. It appears that injury report was got prepared and thereafter, written report was handed over to Kailash Narain, ASI, who has not been examined by the prosecution and he could not be cross-examined on this point. The trial court has rightly observed that all these facts create doubt on the prosecution case. 10. Apart from above, this is a case wherein there are two eye-eyewitnesses of the incident namely PW-7 Ram Charan and PW-8 Ram Narain. Third eye-witness PW-9 Janki Ram was examined and he was declared hostile. Therefore, trial court discussed the statements of PW-7 Ram Charan and PW-8 Ram Narain in detail. We have considered the reasoning of the trial court for discarding the testimony of PW-7 Ram Charan and PW-8 Ram Narain with the help of the learned counsel for both the parties and we find that 6 reasoning assigned by the trial court for discarding the statements of PW-7 and PW-8 are absolutely legal and based on proper appreciation of prosecution evidence. In the written report Exhibit P-14, it has been alleged that Bajrang Lal inflicted two injuries on the person of deceased and the incident was seen by the PW-7 Ram Charan and PW-8 Ram Narain. PW-7 Ram Charan, in his statement before the trial court, stated that accused Bajrang Lal inflicted only one injury on the person of deceased from the front side of the weapon i.e. 'Phawra'. PW-8 Ram Narain, in his statement before the trial court stated that two injuries were inflicted by the accused Bajrang Lal on the person of deceased. The first injury on the head was inflicted from the front side and another injury was inflicted from the rear side of the weapon i.e. 'Phawra'. The injury report Exhibit P-3 shows that deceased sustained only one injury on his person which was star shaped injury. Postmortem report Exhibit P-13 also shows that deceased sustained only one injury. The statements of PW-7 and PW-8 both further reveal that they have not corroborated the facts mentioned in the written report fully and from their statement, it is clear that 7 there is material contradiction with regard to manner in which the incident took place. 11. From the above discussion, it is also clear that there is contradiction in the statements of PW-7 and PW-8 both the eye- witnesses also. The suggestion of the defense to the prosecution witness in the present case, that deceased fell down on the cement pipe in the field and due to it, he sustained injuries and the said case has been converted into a criminal case appears to be probable. The statement of Doctor PW-11 was referred in this regard, who, in his statement, has specifically admitted that injuries sustained by the deceased could have come if he would have fell down on the cement pipe. From the above discussions, it is clear that prosecution has failed to prove the case against accused respondent beyond all reasonable doubt and trial court rightly gave the benefit of doubt to the accused respondent. 12. Although, it is a settled law that even if two views are possible on appreciating of evidence, then the view, which is favourable to the accused, should be accepted whereas in the present case, even two views are not possible, but from the entire 8 evidence, it is clear that prosecution has not proved the case against the accused beyond all reasonable doubt. In these circumstances, we do not find this case to be a fit one to interfere with the order of acquittal passed by the trial court. 13. The Hon'ble Supreme Court in 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 9 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) and Sachchey Lal Tiwari Vs. State of U.P.(2004(11)SCC 410.” 14. 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. Mohit/S/3