- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T State Vs. Bhura Ram (D.B. CRIMINAL APPEAL NO.436/1988) ****** D.B. CRIMINAL APPEAL UNDER SECTION 378 Cr.P.C. AGAINST THE JUDGMENT DATED 30.7.1988 PASSED BY THE ADDITIONAL DISTRICT & SESSIONS JUDGE, BARMER IN SESSIONS CASE NO.41/1988. ******* DATE OF JUDGMENT JANUARY 16,2008 P R E S E N T HON'BLE MR.JUSTICE BHAGWATI PRASAD HON'BLE MR. JUSTICE BHANWAROO KHAN Mr.J.P.S.Choudhary, Public Prosecutor for the State Mr.B.R.Mehta ) Mr.Vijay Bishnoi), for the respondent BY THE COURT (PER HON'BLE MR KHAN J.): The State has filed this appeal under Section 378 Cr.P.C. against the judgment of Additional District & Sessions Judge, Barmer dated 30.7.1988 passed in Sessions Case No.41/1988, wherein he has acquitted the accused Bhura Ram of offence under Section 302 I.P.C. and under Section 9/51 of the Wild Life Protection Act and also accused Mohan, Navla Ram and - 2 - Sagta of offence under Section 302/34 I.P.C. and Section 9/51 of the Wild Life Protection Act. Briefly stated the facts of the case are that on 3.4.1988 a written report was filed by Gordhan stating therein that while they were sitting in a condolence meeting in Sagra's Dhani, where Himmta, Idan, Baga, Shera and Naina were also present, on hearing gun shot fire they all came out of the Dhani and saw an injured deer was running and was being chased by Bhura accused having gun in his hand. The injured deer entered in Sagra's Dhani. The accused Bhura Ram and Sagta after seeing so many persons in the Dhani fled away. When the injured deer entered in the hut of Naina, they made thorn fencing around the hut and door of the hut was closed. Kheta and Shera were sent to the forest department to lodge a report about this incident. In the evening when the deer died, Idan, Himta, Baga, Naina slept outside the hut with a view to keep watch on the deer. During the night at about 12:00 after hearing the sound of foot steps, Idan and Baga woke up and saw Sagta, Bhura, Mohan and Navla were trying to remove the fencing. Bhura was armed with a Dhariya and rest of three accused were armed with lathies, Idan restrained them from removing the fencing and taking away the dead deer. Thereafter Himta and Naina also woke up and restrained them from taking the dead deer. When they all resisted, Bhura inflicted a Dhariya blow on the head of Idan. All - 3 - the accused persons took away the dead deer. After hearing the hue and cry, Raju also arrived on the spot. After receiving this information, police submitted challan against all these accused persons under the aforesaid sections. The accused persons denied the charge levelled against them and pleaded for trial. The prosecution in all produced 12 witnesses and got exhibited 38 documents in support of their case. Only one witness was produced in defence. The trial court after hearing both the parties and looking to the evidence produced, acquitted all the accused of the charges levelled against them. Hence, this appeal by the State against the acquittal. Both the parties were heard and file was gone through. The learned Public Prosecution for the State pleaded that the trial court has committed a serious error by not believing the testimony of P.W.3 Naina and P.W.4 Himmta, who happens to be the eye-witnesses and has proceeded to disbelieve their testimony on minor discrepancies. The prosecution has proved the charges levelled against the accused persons beyond any doubt. The trial court has disbelieved the recovery of the dead deer because of the discrepancies in the statements of the witnesses. As per F.I.R. and the statements of the witnesses, the dead deer was taken by the accused persons - 4 - and was recovered later on. But P.W.5 Dr.Deshpal Singh stated that he has conducted the post-mortem of the dead body of deer which was lying in the hut itself. As per prosecution, it was recovered at the instance of accused Bhura from an open field, which was buried nearby the field. The said recovery was done through Ex.P12 and skin of the dead deer was recovered through Ex.P13. The said discrepancy is not of vital importance and simply by relying on the discrepancies and contradictions the benefit of doubt was wrongly given by the learned trial court to the accused persons. From the evidence tendered by the prosecution, a clear case under Section 302 I.P.C. is made out against accused Bhura Ram and by acquitting the said accused an illegality and serious error has been committed by the learned trial court. The learned counsel for the accused pleaded that the trial court after disbelieving the testimony of Naina and Himmta rightly acquitted the accused persons because of the material contradictions in the cross examination and also the discrepancies committed during the investigation casts serious doubt about the prosecution version. The trial court has rightly given the benefit of doubt. The learned counsel supported the judgment of the court below. The State has initially filed appeal against all the four - 5 - accused persons but vide order dated 4.11.1988 this Court has not admitted the acquittal appeal against Mohan, Navla Ram and Sagta but simply admitted the appeal against accused Bhura. So far rest of the accused persons, the judgment of the lower court has become final by the said order. The trial court while deciding the case has given the reasoning that the weapon of offence Dhariya at the time of recovery alleged to be smeared with blood but at the time of examination by the Forensic Science Laboratory the said version was negatived and no blood was found on the said Dhariya. The another eye-witness Baga though alleged to be present on the spot has not been examined by the prosecution and major contradictions in the statements of eye-witnesses namely Naina and Himmta casts a serious doubt about the version of the prosecution. The FSL report was not exhibited by the prosecution during trial. The cumulative effect of all these discrepancies and contradictions led the acquittal of the accused persons. The recovery of dead deer is also found to be doubtful because the discrepancies available in the statements of other witnesses and the doctor, who said to have conducted post-mortem of the dead deer on the spot itself, whereas as per prosecution the deer was recovered at the instance of accused Bhura from some where else and not from the hut. Interference by High Court against acquittal is - 6 - allowed only when the finding of the lower court is perverse or against the available strong evidence against the accused persons. The only eye-witnesses of the occurrence, P.W.3 Naina and P.W.4 Himmta, who at the relevant time along with Idan and Baga were keeping watch on the dead deer and were sleeping on cots nearby. When Bhura accused tried to take away the dead deer, Idan restrained him, then Bhura struck a Dhariya blow on the head of Idan. P.W.3 Naina deposed that Baga and he along with Himta also woke up and he saw that the accused was beating Idan. P.W.4 Himmta has also said in the said terms and as per his statement Raju also arrived on the spot after hearing the hue and cry. This statement about the presence of Raju is not supported by P.W.3 Naina and the material witness Baga has not been produced. The Dhariya which was used as a weapon of offence though at the time of recovery, it is alleged to be smeared with blood, but during forensic examination, it was not found so. Dhariya was not produced during trial in the court. There are contradictions in the statements of both the witnesses about the complicity of the accused in the crime. It is so said that Shera and Kheta were sent to lodge the report before the forest department for killing of the deer, but no such report was ever lodged. About the recovery of dead deer, there is material contradictions in the mode and place of recovery. As per - 7 - statement of P.W.5 Dr.Deshpal Singh the dead deer was lying in the hut, whereas the prosecution story goes to show that it was recovered at the instance of accused Bhura from a field and also the skin was recovered because it was taken away by the accused persons from the hut. This is not possible because if the post-mortem was conducted by the doctor where the dead deer was lying in the hut, it could not have been possible for the prosecution to recover the same from somewhere else at the instance of accused Bhura Ram through Ex.P12 in which it is mentioned that the dead deer was buried in the field near the house of the accused, which was decomposed and foul smell was emitting from the dead meat. The forensic examination of the recovered gun was also not done and there is no report whether it was capable of firing or not. Whereas D.W.1 Girdhari who is licence holder of the recovered gun has specifically mentioned that it was not serviceable. From the above discussion, it is clearly borne out that the weapon of office was neither produced nor it is found stained with blood, whereas the recovery memo specifically mentions it being smeared with blood. No explanation of the accused was sought about the forensic report while examining the accused persons under Section 313 Cr.P.C. The chemical examination report was not exhibited during trial. Nor any question about it was asked from accused persons. The main - 8 - eye-witness of the incident Baga was not produced. The contradictions in the statements of P.W.4 Himmta and P.W.3 Naina when all these circumstances cumulatively taken clearly casts a serious doubt about the prosecution story. The learned lower court has committed no illegality when it has given the benefit of doubt to all the accused. Coupled with this, the State's appeal against 3 accused persons namely Mohan, Navla Ram and Sagta has not been admitted and if the rest of the accused are acquitted the other accused should also deserves the benefit of same. So no case is made out to call for any interference in the judgment passed by the learned lower court. The reasoning given by the trial court for disbelieving the tendered evidence of eye-witnesses is so sound that it hardly requires any interference in an appeal against acquittal. The prosecution case from very inception leaves the lacuna as the person who lodged the F.I.R. is not the eye-witness. The material eye-witness Baga was not produced and the material discrepancies and contradictions creeping in the evidence of eye- witnesses are in fact not to be believed as their version do not inspire any confidence or trustworthiness. No question about this FSL report was ever put to accused persons while recording the statement under Section 313 Cr.P.C. and no explanation was ever obtained. The recovery of the dead deer is also doubtful because of the discrepancies available in the statements of - 9 - doctor and the witnesses. All this lead the trial court to give benefit of the doubt to all accused persons. The appeal against acquittal was not admitted against rest of the accused except Bhura Ram. So all these points cumulatively culminates in conformity of the judgment delivered by the lower court and lower court has not committed any illegality by giving the benefit of doubt in the light of the evidence tendered by the prosecution. The prosecution has miserably failed to make out a case against accused Bhura Ram also. Consequently, the appeal filed by the State against the acquittal order dated 30.7.1988 passed by the learned Additional Sessions Judge, Barmer is hereby rejected. (BHANWAROO KHAN) J. (BHAGWATI PRASAD) J. BKS/-