1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: D.B. CRIMINAL APPEAL NO. 990/2002 (Devendra @ Babu Vs. The State of Rajasthan) D.B. CRIMINAL APPEAL AGAINST THE JUDGMENT DATED 14.11.2002 PASSED BY THE LEARNED ADDITIONAL SESSIONS JUDGE (FAST TRACK), CHITTORGARH IN SESSIONS CASE NO.9/2002. DATE OF JUDGMENT : 23th October, 2008 P R E S E N T HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Sandeep Mehta ) Mr. Vineet Jain ) for the accused-appellant. Mr. V.R. Mehta ) Public Prosecutor. BY THE COURT : (PER HON'BLE THANVI, J.) 1. This criminal appeal is directed against the 2. judgment dated 14.11.2002 passed by the learned Additional Sessions Judge (Fast Track), Chittorgarh, whereby, he has convicted accused appellant Devendra alias Babu for offence under Section 302 IPC and sentenced him for imprisonment of life and to pay a fine of Rs.5000/-, in default of payment of fine to further undergo one year's simple imprisonment. Accused appellant Devendra alias Babu was also convicted for offence under Section 4/25 of the Arms Act and sentenced to one year's simple imprisonment and to pay a fine of Rs.200/-, in default of payment of fine to further undergo two months' simple imprisonment. Both the sentences have been ordered to run concurrently. 2. Facts leading to this appeal are that on 21.11.2001, Leela Bai PW-7 filed a written report Ex.P.8 at General Hospital, Chittorgarh that on the very day at 1 O'clock, when her son Shiv Shanker was coming to Lalmath from Mahindra Tracktor Showroom, 3. accused appellant Devendra alias Babu, who is her neighbour, stopped her son Shiv Shanker with two boys. Accused appellant Devendra alias Babu was having knife in his hand and he inflicted knife injury on the head of her son, whereby, he became unconscious. She was informed about this incident by two to three boys, who came to her house. She went on the spot and took her son to the hospital. On this report, a case under Sections 341, 324, 307, 323 read with Section 34 IPC was registered and investigation was commenced. During the course of treatment, Shiv Shanker died and offence under Section 302 IPC was added. Accused appellant was arrested and in pursuance to his information, a knife was recovered. 3. After usual investigation, accused appellant was charge sheeted for offence under Sections 341, 323 and 302 IPC along with Section 4/25 of the Arms Act. The case was committed to the court of Sessions, who after hearing the arguments on charge framed charges 4. for offences under Sections 302 IPC and Section 4/25 of the Arms Act against the accused appellant, to which, he pleaded not guilty. Prosecution examined 20 witnesses. Statement of the accused appellant was recorded under Section 313 Cr.P.C. He produced two witnesses in defence. After hearing the arguments, the learned trial court convicted and sentenced the accused appellant as above. 4. While assailing the judgment of the learned trial court, it has been contended by learned counsel for the accused appellant that conviction has been recorded on the testimony of Kailash PW-12, who is said to be the eye witness of the case and on the basis of the recovery of knife, but this eye witness has not seen accused appellant Devendra alias Babu inflicting knife blows on the person of deceased Shiv Shanker, as two to three persons were also present on the seen of crime along with Kailash as stated in the FIR Ex.P.8. According to the learned counsel, the evidence of other 5. witnesses is of hear-say in nature and the prosecution has not established the case against accused appellant beyond reasonable doubt, therefore, while allowing the appeal, the accused appellant be acquitted. 5. Per contra, the learned Public Prosecutor has supported the judgment of the learned trial court. 6. We have re-appreciated the evidence brought on record. In the FIR Ex.P.8, which has been lodged by Leela Bai PW-7, mother of the deceased, it is stated that accused appellant Devendra alias Babu and two other boys whose names she does not know obstructed her son on the way outside Lalmath and knife blows were inflicted on the person of her son Shiv Shanker by accused appellant Devendra alias Babu. She was reported about the incident by two to three boys of the school, but, who were these two to three boys, have not been named in the FIR lodged by Leela Bai PW-7, mother of the deceased. However, in her statement 6. before the court, she named Kailash, her nephew, who reported the matter to her. Kailash told her that Devendra has inflicted knife blows on the person of Shiv Shanker. In the cross examination, she has said that it is wrong to say that two to three boys came to report her about the incident. According to her, Kailash came and reported the incident to her. 7. Kailash PW-12 has stated in the examination-in- chief that when Shiv Shanker was coming from the side of Laxmi Nath Temple, Devendra alias Babu stopped him and at that time, many school boys came there. He saw knife in the hand of Devendra and also saw Shiv Shankar drenched with blood. There were small wounds on his hand and also on the back side and head. He went to his house and reported the matter to his mother that Devendra has inflicted knife blows on the person of Shiv Shanker. If this statement of Kailash PW-12 is closely looked into, it is found that he tried to hide the fact of seeing by himself inflicting 7. knife blows by accused appellant Devendra alias Babu on the person of deceased Shiv Shanker. Barely on this solitary eye witness, who has not specifically seen the accused appellant inflicting knife blows, specially when he said that there was a crowd of the students and in the FIR that two to three persons were also there, it will be very unsafe to hold accused appellant Devendra alias Babu as author of inflicting knife blows. The contention of learned counsel for the accused appellant that had Kailash reported the matter to his mother, there would have been a mention of it in the FIR Ex.P.8 has some substance, because this FIR is silent about the presence of Kailash on the seen of crime and on the contrary, it is written in the FIR that two to three boys inflicted knife blows and ran away. This un-corroborative and contradictory statement of Leela Bai PW-7 and Kailash PW-12 creates heavy doubt as to whether accused appellant Devendra alias Babu was the author of the injury or some one else from two to three boys. 8. 8. If this evidence of solitary eye witness Kailash PW-12 is looked into in the light of his presence on the seen of crime, he has said that his school time is 10.30 A.M. to 4.30 P.M. and as per the school attendance register Ex.D4A, and Ex.D5A, Kailash Kumhar was the student of class IX as entered at serial No.13 of Ex.D4A and as per Ex.D5A read with the evidence of Smt. Sadhana Dhashora DW-1, on 21.11.2001, Kailash was present in the school from 10.30 A.M. to 2 P.M. In the cross examination, she has stated that attendance is marked at the time of entry & after lunch time, which is from 1.30 P.M. to 2.30 P.M. The time of incident in the present case as per the FIR Ex.P.8 is 1.00 P.M. and it was lodged in the Hospital at 2.05 P.M. This evidence further creates doubt with regard to the presence of accused appellant Devendra alias Babu at the place of occurrence. 9. Rest of the witnesses are the formal witnesses of after seen of crime and the recovery. 9. 10. The recovery of knife has of-course been proved but this is a corroborative evidence. When the eye witnesses are available on record, conviction cannot be recorded on the basis of corroborative evidence of recovery. We feel that the learned trial Judge has not rightly appreciated the evidence in the above context and the judgment of the learned trial court is not based on sound principles of criminal jurisprudence. Seen in the above context, accused appellant is entitled to the benefit of doubt. 11. Consequently, this appeal is allowed. The judgment dated 14.11.2002 passed by the learned Additional Sessions Judge (Fast Track), Chittorgarh in Sessions Case No.9/2002, convicting accused appellant Devendra alias Babu for offence under Section 302 IPC and sentencing him for imprisonment of life and to pay a fine of Rs.5000/-, in default of payment of fine to further undergo one year's simple imprisonment and under Section 4/25 of the Arms Act with one year's 10. simple imprisonment and to pay a fine of Rs.200/-, in default of payment of fine to further undergo two month's simple imprisonment is set aside. Accused appellant Devendra alias Babu is acquitted from the charges levelled against him. He is in jail, he shall be released forthwith, if not required in any other case. (DEO NARAYAN THANVI), J. (A.M. KAPADIA), J. ms rathore