IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Saitansingh & Anr. Versus The State of Rajasthan S.B. CRIMINAL APPEAL NO. 180/1989 Date of Judgment : 27.07.2010 PRESENT HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. K.S. Rathore for the appellants Mr. A.R. Nikub – Public Prosecutor BY THE COURT This appeal has been preferred by accused appellants Saitan Singh S/o Roop Singh and Jabar Singh S/o Roop Singh, both by caste Rajput, residents of Village Deoli Pabuji, Police Station Rani, District Pali, against the judgment and order of the Additional District and Sessions Judge, Bali dated 03.05.1989 in Sessions Case No. 25/1986, whereby the accused appellants were held guilty for the offences and sentenced as follows :- Name of the Accused Offence Sentence Saitan Singh 326 IPC Rigorous imprisonment for three years and to pay a fine of Rs.2000/- and in default of payment of fine to further 323/34 IPC Rigorous imprisonment for six months. 447 IPC Rigorous imprisonment for one month. Page 1 of 12 Name of the Accused Offence Sentence Jabar Singh 326/34 IPC Rigorous imprisonment for three years and to pay a fine of Rs.2000/- and in default of payment of fine to further 323 IPC Rigorous imprisonment for six months. 447 IPC Rigorous imprisonment for one month. The nub of the prosecution story is that on 30.07.1984, a criminal case No. 96/1984 under Section 307, 324, 447, 147, 148 and 149 IPC was registered at the Police Station Rani in pursuance to the written First Information Report lodged by Smt. Kesar Bai, widow of Reva Shanker, by caste Shrimali Brahmin, resident of Deoli Pabuji, to the effect that on the same day at 12.00 noon she alongwith her brother Jagdish, Mithi Devi W/o Jagdish and Manohar Devi W/o Suresh Kumar had gone on a tractor in the company of Hari Singh and Jalam Singh Rajputs of Guda Akheraj to Bera Dhimri of the Khatedari of her brothers. They commenced ploughing operations and after half an hour of that commencement, accused appellants alongwith their father Roop Singh, mother Smt. Daku and brother Ganpat Singh came there. Mithia and Mohan were also with them. The accused appellant Saitan Singh was armed with an axe and his other companions were armed with lathis. They stopped the tractor. Jagdish, Manohar Devi and Mithi Devi asked the accused appellant for the reason, on which the accused appellants and their companions started abusing Page 2 of 12 the aforesaid persons. Saitan Singh inflicted an axe blow from its sharp side on the scalp of Jagdish, thereby causing hurt, resultantly blood started flowing from the wound. Roop Singh gave a lathi blow in the back of Jagdish and the accused appellant Jabar Singh caused injury to Jagdish by giving a lathi blow on his left leg. Other persons also pulled and pushed Smt. Mithi Devi and Smt. Manohar Devi. Jalam Singh took in his possession the axe from the accused appellant Saitan Singh. The accused appellants and their companions ran away leaving Jagdish in an unconscious state at the scene of occurrence. The injured Jagdish was sent to the Medical Dispensary at Rani. On the basis of the aforesaid report Ex.P.1, a case was registered and investigation commenced. During the course of investigation, blood stained axe was seized from the possession of Jalam Singh, statements of the witnesses were recorded and the charge-sheet was filed in the Court of Judicial Magistrate, Desuri, from where the case was committed to the Court of Additional District and Sessions Judge, Bali for trial. The accused appellant Saitan Singh was charged for commission of offence under Section 447, 307 IPC, alternatively Section 326 and 323/34 IPC and the accused appellant Jabar Singh was charged for commission of offence under Section 447, 307/34 IPC, alternatively Section 326/34 and 323 IPC. The accused Page 3 of 12 appellants did not plead guilty and claimed to be tried. To prove the alleged offence, prosecution examined as many as 18 witnesses, namely, P.W.1 Kesar Bai, P.W.2 Mithi Devi, P.W.3 Ghisulal, P.W.4 Ragga, P.W.5 Jagdish Prasad, P.W.6 Mohanlal, P.W.7 Jalam Singh, P.W.8 Moola, P.W.9 Bakhtawar Singh, P.W.10 Amra, P.W.11 Dr. G.N. Purohit, P.W.12 Malam Singh, P.W.13 Manohar Devi, P.W.14 Preetam Singh, P.W.15 B.R. Dauliya, P.W.16 Bakhtawar Singh, P.W.17 Hari Singh and P.W.18 Satya Narayan. The incriminating evidence adduced against the accused appellants was put to them for their explanation under Section 313 CrPC and the accused appellants examined four witnesses, namely, D.W.1 Man Singh, D.W.2 Pokar Singh, D.W.3 Bhopal Singh and D.W.4 Roop Singh, in their defence. After conclusion of the trial, learned trial Judge held the accused appellants guilty for the afore-mentioned offences and sentenced them as above. During the pendency of the appeal, both the parties filed a compound petition in the court which was verified by injured Jagdish Prasad as well the counsel for the accused appellants Saitan Singh and Jalam Singh. Hence, in view of the compromise arrived at between the parties, the accused appellants are acquitted of the Page 4 of 12 charges under Section 447 and 323 IPC. I have perused the judgment of the learned trial court. Out of the witnesses examined by the prosecution, P.W.1 Smt. Kesar Bai is the lodger of the First Information Report and in the First Information Report, she had mentioned the names of 7 persons as assailants, namely, (1) Saitan Singh (2) Roop Singh (3) Jabar Singh (4) Ganpat Singh (5) Daku (6) Mithia and (7) Mohan Thori, whereas during the course of the trial, she deposed that she alongwith her brother Jagdish, wife of Jagdish, wife of Suresh, Jalam Singh and Hari Singh were there in the field and then Saitan, Jabar Singh and Ganpat Singh came there and Saitan Singh inflicted injury to Jagdish with an axe and Jabar Singh and Ganpat Singh inflicted injuries to Jagdish with lathis on his leg. Jagdish lost his consciousness due to the injury caused by axe on his head. Saitan Singh, Jabar Singh and Ganpat Singh, all the three inflicted injuries to her brother Jagdish. She further deposed that her right hand was broken due to beating. Hakka came in their rescue. She further deposed about lodging of report Ex.P.1 to the police and further deposed about the execution of memo Ex.P.2 and Ex.P.3. P.W.2 Mithi Devi is also an eye-witness. In her examination-in-chief, she also repeated the story deposed by P.W.1 Kesar Bai. In the cross-examination, P.W.2 Mithi Bai deposed that Pratha Choudhary was also present at the time of the incident, Page 5 of 12 but he did not come in rescue of the injured and she further deposed in the cross-examination that Hakka was not there at the place of incident. P.W.3 Ghisulal is the witness of the memo of arrest of the accused appellant Saitan Singh (Ex.P.4). P.W.4 Ragga did not corroborate the prosecution story, therefore, he was declared hostile by the prosecution during the course of the trial. P.W.5 Jagdish Prasad is the injured witness and he corroborated the prosecution story as deposed by P.W.1 Kesar Bai, but in the cross-examination, he deposed that Pratha and Hakka were not present at the place of incident. P.W.6 Mohanlal is the witness of memo Ex.P.2 and Ex.P.3. P.W.7 Jalam Singh did not corroborate the prosecution story, therefore, he was declared hostile during the course of the trial by the prosecution. P.W.8 Moola is not an eye-witness of the incident. He deposed about the possession of the disputed land. He deposed that just after the occurrence, Kesar Bai came to him and on enquiry, Kesar Bai informed him about the entire incident. Page 6 of 12 P.W.9 Bakhtawar Singh did not corroborate the prosecution story, therefore, was declared hostile by the prosecution during the course of the trial. P.W.10 Amara deposed about the possession of the land and he deposed that he had never seen the possession of Roop Singh on the disputed land. P.W.11 Dr. G.N. Purohit is the doctor who conducted x- ray of the injury of the injured Jagdish and opined about the fracture of the right parietal bone of skull of Jagdish. P.W.12 Malam Singh is the formal witness of sending the sealed packet from the Police Station, Rani to the Forensic Science Laboratory, Udaipur. P.W.13 Manohar Devi is the eye-witness of the incident and she deposed in her examination-in-chief the same prosecution story as deposed by P.W.1 Kesar Bai and corroborated the fact of the incident, but in the cross-examination she deposed that at the time of incident, Pratha and Hakka did not come to the place of occurrence. P.W.14 Preetam Singh is the Investigating Officer, who also registered the case on the basis of report Ex.P.1 and further deposed about the usual investigation process. Page 7 of 12 P.W.15 B.R. Dauliya is the Medical Officer who examined the injured Jagdish and found the following injuries on the body of the injured as per his report :- (i) Incised wound 5cm x 1cm deep to bone – Right side frontal bone -sharp (ii) Bruise 6cm x 3cm below the left scapula – simple blunt (iii) Bruise 7 ½ cm x 2cm – Left leg on the calf muscles – simple blunt. He further deposed that he prepared Ex.P.11. The injuries were caused within 12 hours of the examination. P.W.16 Bakhtawar Singh is the witness of the possession of the disputed land. P.W.17 Hari Singh did not corroborate the story of the prosecution and was declared hostile by the prosecution during the course of the trial. P.W.18 Satya Narayan deposed about the preparation of the forwarding letter for sending the sealed articles to the Forensic Science Laboratory, Udaipur. The accused appellants in their examination stated that the evidence of the prosecution was false and further stated that Page 8 of 12 there was a land dispute between the complainant and the accused appellants, that is why the witnesses were deposing against them. The defence witnesses D.W.1 Man Singh, D.W.2 Pokar Singh, D.W.3 Bhopal Singh and D.W.4 Roop Singh deposed about the possession of the land of the accused appellants. The learned trial Judge after hearing both the parties found the accused appellants Saitan Singh and Jabar Singh guilty for the offences narrated above. The main contention of the learned counsel for the accused appellants is that the First Information Report bears the names of 7 assailants, whereas the complainant, injured and all the eye-witnesses who are from the same family deposed that only 3 persons came on the place of the incident and caused injuries on the head of the injured Jagdish, thus, there is material contradiction in the First Information Report and the statements of the witnesses. The next contention of the learned counsel for the accused appellants is that the presence of Pratha and Hakka was admitted by some of the prosecution witnesses, but they have not been examined by the prosecution and the eye-witnesses, namely, Hari Singh and Jalam Singh, whose names are there in the First Page 9 of 12 Information Report, have not corroborated the evidence of the complainant as well as the injured, and rest of the witnesses who corroborated the evidence of the prosecution were interested witnesses from the same family and closely related to each other, therefore, the learned trial Judge erred in believing their evidence. Further learned counsel for the accused appellants argued that Hakka and Pratha had not been examined by the prosecution as witnesses which is fatal to the prosecution. Per contra, learned Public Prosecutor controverted the arguments of the learned counsel for the accused appellants and defended the judgment of the learned trial court. I have perused the judgment of the learned trial court and scanned and evaluated the ocular and documentary evidence adduced by the prosecution as well as in defence. The First Information Report (Ex.P.1) bears the names of 7 assailants, namely, (1) Saitan Singh (2) Roop Singh (3) Jabar Singh (4) Ganpat Singh (5) Daku (6) Mithia and (7) Mohan Thori, whereas all the eye-witnesses, namely, P.W.1 Kesar Bai, P.W.2 Mithi Devi, P.W.5 Jagdish Prasad (injured witness) and P.W.13 Manohar Devi, deposed that 3 persons, namely, Saitan Singh, Jabar Singh and Ganpat Singh came on the place of occurrence and Saitan Singh inflicted injury by an axe, thus, there is material Page 10 of 12 contradictions in the first information report and the evidence of the eye-witnesses as well as that of the injured. In addition to it, there are also material contradictions in the evidence of the prosecution witnesses regarding the presence of the independent witnesses Pratha and Hakka, who have not been produced in the court and some of the eye-witnesses deposed about their presence and there are also contradictions between the evidence deposed by the above eye-witnesses. P.W.7 Jalam Singh and P.W.17 Hari Singh, who were also the eye-witnesses, had not corroborated the evidence of other eye-witnesses regarding the commission of the offence and it is an admitted fact that the eye-witnesses who corroborated the prosecution story are close relatives and family members of injured Jagdish. In view of the afore-mentioned circumstances and the facts narrated above, when there are contradictions in the First Information Report and the statements of the eye-witnesses and non-corroboration of the prosecution story by independent witnesses, namely, P.W.7 Jalam Singh and P.W.17 Hari Singh and non-production of other two independent witnesses, namely, Pratha and Hakka, the other statements of the eye-witnesses does not inspire faith and cannot be relied upon. Moreover from the evidence of the defence witnesses, it is also clear that there was dispute between the complainant party and the accused party regarding the possession of the agricultural land on which the Page 11 of 12 alleged offence was committed. In these circumstances, the evidence of the eye- witnesses does not inspire faith and cannot be termed as reliable one and in the absence of the above evidence, no other evidence is there to connect the accused with the crime. In view of the discussion made hereinabove, the accused appellants Saitan Singh and Jabar Singh are acquitted of the charge for commission of offence under Section 447 and 323 IPC by compromise and they deserve to be acquitted of the charge for commission of offence under Section 326 and 326/34 IPC respectively. Resultantly, this appeal is allowed and the judgment and order dated 03.05.1989 passed by the learned Additional District and Sessions Judge, Bali in Sessions Case No. 25/1986 against the accused appellants Saitan Singh and Jabar Singh is set aside and the accused appellants Saitan Singh and Jabar Singh are acquitted of the charges levelled against them. The accused appellants are on bail, they need not surrender. Their bail bonds are hereby discharged. [KAILASH CHANDRA JOSHI],J. Pramod Page 12 of 12