1 THE HIGH COURT OF JUDICATURE FOR RAJASTAHN AT JAIPUR BENCH, JAIPUR D.B. Criminal Appeal No.579/1983 State of Rajasthan Vs. Kishan & Another 26.02.2010 Hon'ble Mr. Narendra Kumar Jain,J. Hon'ble Mr. Jitendra Ray Goyal,J. Mr. J.R. Bijarnia, PP for the State. None present for the respondents. BY THE COURT: This appeal is directed against the impugned judgment and order dated 26.02.1983 passed by Sessions Judge, Jaipur City, Jaipur in Sessions Case No.90/1982 whereby the accused-respondents namely Shri Kishan and Birju alias Brij Kishore sons of Singardas were acquitted from the charge under Section 302 and 302/34 IPC. 2. The relevant facts in brief for disposal of this appeal are that on the basis of 'Parcha Bayan' of injured/deceased Kaley Khan (Ex.P.22) dated 07.06.1982 recorded by PW-16 (Dalip Singh) Investigating Officer, FIR No.205/1982 was registered at Police Station Vidhayak Puri, Jaipur under Section 307 IPC. The dying declaration (Ex.P.19) of Kaley Khan was also recored by the Judicial Magistrate Padam Kumar Jain. However, the injured 2 succumbed to the injuries on 08.07.1982 and the offence under Section 302 IPC was also added. The accused persons were arrested and after completion of investigation of the case, the Police filed a chargesheet against both the accused-respondents for the offence under Sections 302 and 302/34 IPC before the court of Judicial Magistrate No.14, Jaipur City, who committed the case for trial to the court of Sessions Judge. The trial court framed charge against the accused-respondent Shri Kishan for the offence under section 302 IPC and against Birju alias Brij Kishore for the offence under Section 302/34 IPC. The prosecution examined oral and documentary evidence, thereafter statements of the accused were recorded under Section 313 Cr.P.C. In defence, three witnesses were examined. The trial court after considering the submissions of the learned counsel for the parties and also the record, acquitted both the accused- respondents. Being aggrieved with the same the present appeal has been preferred by State. 3. It is relevant to mention that during the pendency of this appeal, the respondent No.1 Shri Kishan died and on an application moved on behalf of the learned Public 3 Prosecutor under Section 394 Cr.P.C., the State appeal was dismissed against him as abated, therefore, the present appeal was heard only against the accused-respondent Birju alias Brij Kishore. 4. The submissions of the learned counsel for the State is that it was a case wherein eye-witnesses were examined on behalf of the prosecution, in addition to 'Parcha Bayan' and dying declaration of the deceased and there was a recovery of the weapon also, therefore, charge against the accused-respondents was fully proved and they were wrongly acquitted by the learned trial court. Thus, this is a fit case for interference in the order of acquittal of the trial court. 5. No one is present on behalf of the respondents, therefore, we could not get any assistance from the defence side. However, we ourselves examined the entire record and impugned judgment in the light of the submissions of the learned counsel for the State. 6. This is a case wherein there was three types of prosecution evidence namely eye- witnesses, dying declaration of the deceased and recovery of the knife. The prosecution examined five witnesses namely Bhanwar Singh, 4 Ikbal, Bansi Lal, Hari Singh and Shankar Lal as eye-witnesses. The prosecution witnesses Bhanwar Singh and Bansi Lal, who were independent witnesses, were declared hostile. The third independent witness Ikbal was not examined on behalf of the prosecution. So far as the remaining so called two eye-witnesses namely Hari Singh and Shankar Lal are concerned, they were Constables. The learned trial court has considered the statements of Hari Singh (PW-3) and Shankar Lal (PW-13) in detail. We have also examined their statements in detail in the light of the submissions of the learned Public Prosecutor. The learned trial court has held that their statements are contrary to 'Parcha Bayan' as the dying declaration of the deceased and the same cannot be relied upon in the facts and circumstances of the present case. After considering the submissions, we are also of the view that the trial court was fully justified in not relying upon their testimony. It is to be noted that we are considering the State appeal against the order of acquittal. It is a settled proposition of law that even if two views are possible on appreciating of evidence, then the view, which is favourable to the accused, should be adopted. The 5 learned Public Prosecutor is unable to point out any illegality or perversity in the conclusion of the trial court for disbelieving the testimony of the witnesses namely Hari Singh and Shankar Lal. We, therefore, affirm the said finding of the learned trial court. 7. So far as dying declaration Ex.P.19 recorded by Judicial Magistrate is concerned, it is relevant to mention that learned trial court has considered it in detail and has recorded a finding that the dying declaration of deceased is contrary to his own 'Parcha Bayan' (Ex.P.22) recorded by PW-16 Dalip Singh. Apart from other reasons, one important reason is that in the 'Parcha Bayan' Ex.P.22 the deceased stated that Israil, Noor and Shri Kishan inflicted number of injuries on his person. There was free fight in between deceased and accused Shri Kishan whereas in dying declaration Ex.P.19 recorded by the Judicial Magistrate, the deceased has not named Israil and Noor and stated that Birju alias Brij Kishore caught hold him and Shri Kishan inflicted number of injuries on his person and no other person was available at that time. So far as accused Shri Kishan is concerned, he has already died during the pendency of the appeal and so far as accused 6 Birju alias Brij Kishore is concerned, his name was not stated by deceased himself in his 'Parcha Bayan' Ex.P.22 recorded by PW-16 Dalip Singh, which was recorded within two hours of the incident. The incident took place at 10 A.M. and Ex.P.22 'Parcha Bayan' was recorded at 12 in noon by PW-16 Dalip Singh. We have examined Ex.P.22 as well as Ex.P.19 and the statement of PW-16 Dalip Singh and we find one more important fact that in Ex.P.22 'Parcha Bayan' the deceased Kaley Khan named Anand as eye-witness but he was not examined on behalf of prosecution, rather he was examined as DW-3 in defence, who stated before the trial court that Noor, Nasir and five-six persons came on scooter (three vehcle) and there was free fight in between them and Kaley Khan. The name of accused Birju alias Brij Kishore was neither named in Ex.P.22 'Parcha Bayan' nor it has been taken by DW-3 also, who was present at the spot even as per the 'Parcha Bayan' Ex.P.22. In these circumstances, we find that finding of the learned trial court in not believing the dying declaration Ex.P.19 as well as Ex.P.22 is also perfectly justified and based on proper appreciation of the prosecution witness. The learned Public Prosecutor is unable to point out any 7 illegality or perversity in the said finding. After considering the entire record, we are also of the view that finding of the learned trial court in this regard is perfectly justified and no interference in it is called for. 8. Similarly, the learned trial court has disbelieved the recovery of the knife at the instance of accused Shri Kishan. As already mentioned above, the accused Shri Kishan has already died. No recovery was made from another accused Birju alias Brij Kishore. However, the learned trial court has disbelieved the recovery of knife and recorded the reasons for disbelieving the same and we find that the said finding of the trial court is also based on proper appreciation of the evidence. 9. The Hon'ble Apex Court in case of State of Madhya Pradesh Vs. Bacchudas alias Balaram & Others, reported in AIR 2007 SC 1236 has held that the if two views are possible on the evidence adduced in the case, one 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 Hon'ble Apex Court has further held that unless there are compelling and substantial reasons, the 8 order of acquittal passed by the learned trial court should not be interfered with by the appellate court. 10. In view of above discussions, we do not find any merit in this appeal and the same is, accordingly, dismissed. (Jitendra Ray Goyal),J (Narendra Kumar Jain),J. Mohit/S/3