SB Criminal Appeal No.431/89 Moti Lal Vs. State {1} IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT: MOTI LAL VS. THE STATE OF RAJASTHAN S.B. Criminal Appeal No.431/1989 under Section 374 Cr.P.C. against the judgment and order dated 20.10.1989 passed by the District & Sessions Judge, Banswara in Sessions Case No.53/1986. Date of Judgment: 13 July, 2010 PRESENT HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Manish Shishodia ] Mr. Jagat Tatia ], for the appellant. Mr. A.R. Nikub, Public Prosecutor. By the Court: The accused appellant Motilal has challenged by way of this appeal, the judgment dated 20.10.1989, passed by the learned District & Sessions Judge, Banswara in Sessions Case No.53/1986, convicting the appellant accused for commission of offence under section 326 IPC and recorded the punishment of two years' rigorous imprisonment and a fine of Rs.500/- and to further undergo sentence of two months' rigorous imprisonment, in default of payment of fine. Brief facts of the prosecution story are that, on SB Criminal Appeal No.431/89 Moti Lal Vs. State {2} 19.04.1986, at 03.00 PM, complainant Kuriya S/o Parbateng Patel r/o Nahali, lodged a complaint in Police Station Gadhi that on the same day at about 12.30 PM, accused-appellant Motilal along with Bapu Lal, Nala Lal, Nathu Lal, Heera Lal and Manishanker, attacked his brother Gebi Lal, when he was returning from his new house to the old house. As per the version contained in the FIR, Motilal caused injury by knife and rest of the persons caused injuries by lathi. Soon after the incident, the injuries were examined by PW/2 Dr. Surendra Kumar Mathur and X-ray was also performed by him. While reporting the matter orally, injury report along with X-ray report, were also produced in the Police Station. Police registered a case under Sections 147, 307, 323 and 341 IPC and after usual investigation and examination of injuries of another injured Vaji, a charge-sheet was filed under Sections 147, 148, 307/149 and 323 IPC against six persons, including the present appellant accused, in the court of Munsif and Judicial Magistrate, Banswara, from where the case was committed to the court of Sessions Judge, Banswara. The accused, except Moti Lal, were charged for offence under Sections 147, 148, 307/149 and 323 IPC, in the alternative under Section 323/149 IPC and accused appellant Moti Lal was charged for offence under Sections 147, 148, 307 and 323 IPC and in the alternative under Section 323/149 IPC. SB Criminal Appeal No.431/89 Moti Lal Vs. State {3} They did not plead guilty and claimed to be tried. Prosecution examined 14 witnesses to prove the alleged charges. Accused were examined under Section 313 Cr.P.C. And produced two witnesses in defence. Learned trial court, after considering the relevant record, acquitted the five accused and convicted the present appellant under Section 326 IPC and sentenced him as narrated above. Counsel for the appellant contended that the prosecution has examined as many as 14 witnesses, out of which PW-5 Gajeng, PW-6 Anadeng, PW-7 Pemji, PW-8 Gebi Lal, PW-11 Khema and PW-12 Vajeng are the eye witnesses of the offence and the learned trial Judge, while relying upon these witnesses coupled with the evidence of witnesses PW-2 Dr. Surendra Kumar Mathur and PW-14 Dr. GP Sharma, found the appellant guilty of the offence under Section 326 IPC. But, on the contrary, the learned trial Judge had not appreciated the fact that on the very day, the marriage of Moti Lal was to be solemnized and the barat procession took place in the evening on same day. The learned counsel for the appellant also argued that the learned trial Judge had not appreciated this fact also that the complainant, while lodging the FIR, also submitted the injury report Ex.P/5 of Gebi Lal with the X-ray report. This also shows that even before lodging the FIR, the injured approached the concerned medical officer and opted for medical examination and SB Criminal Appeal No.431/89 Moti Lal Vs. State {4} X-ray without any reference to the police, whereas the medical examination of the injured was conducted on 19.04.1986 at 9.00 PM after referring the injured by the investigating officer. The next important contention of the learned counsel for the appellant is that the learned trial Judge had not appreciated the injury report Ex.D/1A and Ex.D/2A caused on the body of accused Heeralal and Motilal and simply observed that the injuries were of minor nature, therefore, there was no necessity on the part of the prosecution to prove the injuries on the body of accused, whereas in all there were five simple injuries on the body of Heeralal which were simple in nature caused by blunt weapon and two injuries on the body of accused Moti Lal which were simple caused by blunt weapon. The learned counsel for the accused appellant also argued that the learned trial Judge had not appreciated the evidentiary value of Ex.P/15, the earlier first information report lodged by Gebi Lal against Babulal in the same police station for the commission of offence under Section 435 IPC. Per contra, the learned Public Prosecution vehemently contended that the appreciation of the evidence made by the learned trial Judge is perfectly right and even after appreciating the contention of the learned counsel for the accused-appellant, the conviction and order of sentence against the accused- appellant is sustainable. SB Criminal Appeal No.431/89 Moti Lal Vs. State {5} I have considered the rival contentions put by both the side and scanned and evaluated the evidence produced by the prosecution as well as by defence. Prosecution witnesses , PW-5 Gajeng, PW-6 Anadeng, PW-7 Pemji, PW-8 Gebi Lal, PW-11 Khema and PW-12 Vajeng, while corroborating the ocular evidence of each other deposed about the occurrence of incident. Prosecution has succeeded in proving that Moti Lal caused injuries to Gebi Lal by sharp weapon but it has conceded the genesis of occurrence. As such the motive behind causing the hurt was to take revenge of enmity generated on account of lodging of earlier FIR Ex.P.15 against Babulal by Gebi Lal but this is not convincing. Firstly, there is long gap before occurrence and registration of earlier FIR. Secondly, it is not logical and probable that a person will choose the day of his own marriage to indulge in fighting for setting the score. In these circumstances, unexplained injuries on the person of Moti Lal and Heera Lal attains greater significance. PW/11 Khera has categorically admitted that the marriage of Moti Lal was to be solemnized on that very day and barat procession took place in the evening on the day of occurrence. Though it is denied by the witnesses that the barat procession was to take place in the afternoon which was delayed because of stone throwing by Gebi Lal and others on barat party. But the close scanning of their statements reveals that there has been SB Criminal Appeal No.431/89 Moti Lal Vs. State {6} concoction in many material particulars inasmuch as they expressed ignorance about Var Ghoda, i.e., the procession of bridegroom on horse. The place of occurrence is the common Chowk in Bazar, where there are number of inhabited houses of Sewak, Brahmins and Baniyas also but no witness other than Patels have been examined. Evidence of particular witnesses cannot be accepted unless it inspires confidence, whereas the concealing genesis of occurrence, withholding indifferent witnesses coupled with unexplained injuries on the person of Moti Lal and Heera Lal as also infirmities and contradictions casts serious doubts on their testimony. Therefore, these prosecution witnesses cannot be termed as reliable, as they have suppressed the material truth. In the entirety of the facts and the evidence adduced by the prosecution, in my view, the prosecution has failed to prove the commission of offence under Section 326 IPC and, therefore, the appeal preferred by accused appellant Moti Lal deserves to be allowed. Resultantly, the appeal filed by accused appellant Moti Lal against the judgment and order dated 20.10.1989 passed by the learned District & Sessions Judge, Banswara in Sessions Case No.53/1986 is accepted and the judgment and order of sentence passed is set aside and he is acquitted of the charges levelled SB Criminal Appeal No.431/89 Moti Lal Vs. State {7} against him. The accused is already on bail, therefore, he need not to surrender. [KAILASH CHANDRA JOSHI],J. /skm/