1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Khiv Singh Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.85/2004 against the judgment dt.8.1.2004 passed by Addl.Sessions Judge (FT), Parbatsar, in Sessions Case No.113/02 (43/2001). Date of Judgment: 15th May, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.J.S.Choudhary ) Mr.Pradeep Choudhary) for the appellant. Mr.S.S.Sharma, Public Prosecutor. Mr.R.K.Charan, for complainant. BY THE COURT : (PER THANVI J.) 1. By the instant Criminal Appeal, the accused appellant Khiv Singh has challenged his conviction under Section 302 IPC and sentence of life imprisonment alongwith a fine of Rs.1000/- & in default, to further undergo three months' S.I., recorded by the learned Addl.Sessions Judge (FT), Parbatsar vide 2 his judgment dt.8.1.2004, passed in Sessions Case No.113/02 (43/2001). 2. Facts leading to this appeal are that the FIR, Ex.P.1., was lodged at Police Station, Parbatsar, Distt.Nagaur, on 10.6.87, wherein it was alleged by Durga Singh that his uncle Lal Singh has been killed by nine persons including the present appellant Khiv Singh with lathis with a common object. He also stated in the FIR that one Bhanwarlal s/o Modu Ram was having `Pharsi' in his hand and cited three persons viz; Jetha Ram, Jai Singh and Jan Kanwar as interveners in the crime. Upon this report, the police registered a case u/ss.147, 148, 149, 302 & 120B IPC and commenced investigation. The autopsy of deceased Lal Singh was conducted. After investigation, the police filed challan against 7 accused persons. However, the challan was filed u/s.299 CrPC against two accused viz; Bhanwarlal s/o Sukhdev and the present accused appellant Khiv Singh. Learned trial Judge proceeded with the trial against 7 accused viz; Rekha Ram, Puran Singh, Bhanwar Singh, Bhanwara Ram s/o Pusa Ram, Bhanwara Ram s/o Modu Ram, Babulal and Gajendra Singh. The charges were framed against the accused u/ss.147/148 3 and 302/149 IPC. After trial, all the seven accused were acquitted by the learned Sessions Judge, Merta vide his judgment dt.30.6.93 passed in Sessions Case No.46/88. 3. Thereafter, accused appellant Khiv Singh was arrested on 14.9.2001. The supplementary chargesheet was filed against him in which there was reference of the death of one of the accused, who was also absconding, viz; Bhanwarlal s/o Sukhdev. Accused appellant Khiv Singh was charged u/ss.147/148 and 302/149 IPC, to which he pleaded not guilty. The prosecution examined 11 witnesses but the last witness is PW 12 because numbering of some of the witnesses was given doubly. The statement of accused Khiv Singh was recorded u/s.313 CrPC. He led no defence. After hearing the arguments, the learned trial Judge convicted accused Khiv Singh u/s.302 IPC and sentenced him as above, against which this appeal has been filed. 4. While assailing the judgment of the learned trial Judge, it has been submitted by Mr.J.S.Choudhary, learned counsel for the appellant Khiv Singh that the learned trial Court has totally ignored the factual aspect 4 of the case vis a vis theory of the prosecution as originally brought out in the FIR and merely on the basis of the statements given for the second time by the witnesses against accused Khiv Singh, in the trial held against him, the conviction has been recorded, which is purely against the basic canons of appreciation of evidence. The learned trial Court, while appreciating the evidence, ought to have gone into the original statements given by the witnesses against four co- accused, who were acquitted by the trial Court. According to him, as per the FIR, there were three eye witnesses of the incident but the police has concocted two more witnesses, whose statements are not natural. They are Nirmal Kanwar, PW 3 and Magan Singh, PW 11. He further submits that no weapon of offence viz; lathi which has been used in the commission of crime, has been recovered from the possession of the present accused appellant. He has also drawn the attention of this Court towards the post mortem report in which there are more than 20 injuries said to have been inflicted by nine accused but the injury inflicted by the present accused appellant has not been proved because the injuries of deceased were not on the vital parts. There were only two grievous injuries on the hands but 5 then as to who inflicted those injuries, is not clear from the prosecution story. 5. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court. 6. We have re-appreciated the evidence brought on record and also perused the judgment of acquittal recorded by the learned Addl.Sessions Judge, Merta on 30.6.93 in the matter of same incident in Sessions Case No.46/88, whereby seven participants of the same incident were acquitted. This judgment was brought to the notice of the learned trial Judge in the present appellant's case but the learned trial Judge simply observed in para 40 of the impugned judgment that acquittal of co-accused by giving benefit of doubt in a separate trial will not affect the judgment of this case by appreciating their evidence. In our opinion, the finding of the learned trial Judge is totally based on non-application of mind. In a Criminal trial, the evidence of the prosecution witnesses must lead to the only conclusion that it is the accused, who has committed the crime. The preponderance of probabilities have no place in the Criminal trial. When 6 co accused of the same incident have been acquitted in which the State has not preferred any appeal against acquittal, then the trial Court while appreciating the evidence in the case of one of the accused, who has been arrested later on and against whom the trial proceeded u/s.299 CrPC, should have looked into the evidence of other case, particularly when that evidence has been brought on record in this case by proving from the witnesses concerned, who earlier deposed in the previous trial. 7. In this regard, first we take into account the evidence brought out in this case against the accused appellant. The most important document is the FIR Ex.P.1 in which the allegation of committing murder of Lal Singh has been levelled against 9 accused persons, out of which 7 have been acquitted by the learned trial Court, one accused viz; Bhanwarlal s/o Sukhdev has expired and the present accused has faced the trial and has been convicted as aforesaid. In the FIR, Ex.P.1, three eye witnesses viz; Jetha Ram, Jai Singh and Jan Kanwar have been shown. Jai Singh has been withheld by the prosecution. Jetha Ram has been examined in this case as PW 4 on 12.3.03 but he has turned hostile. 7 The third eye witness is Jan Kanwar, PW 2, whose evidence has been disbelieved by the learned trial Judge in para 21 of the judgment in which it has been observed by the trial Judge that witnesses Jan Kanwar and Chauthi Bai ofcourse went at the site but the Court disbelieved their testimony with regard to direct evidence of causing death of Lal Singh. Learned trial Judge based the conviction on the testimony of Nirmal Kanwar, PW 3 and Magan Singh, PW 8. 8. So far as the evidence of Nirmal Kanwar, PW 3 is concerned, she has stated in examination in chief that she saw the incident outside the house of Hari Singh, where accused Khiv Singh was beating Lal Singh and Chauthi Bai and Jan Kanwar went to intervene. When this witness was confronted with her previous statements Ex.D.7 & Ex.D.8 given to the police, she has denied that she went running on hearing cries and saw four persons beating Lal Singh. In the cross examination, she has also stated that on hearing the cries, she entered into the house and thereafter Chauthi Bai and Jan Kanwar came. This important contradiction in the statement of Nirmal Kanwar in Ex.D.17 & in the evidence of this trial with regard to her presence and 8 seeing the accused appellant inflicting blow on Lal Singh by lathi itself falsifies her version with regard to her presence on the spot and she cannot be termed as reliable witness. 9. Next is PW 11 Magan Singh, who has stated in examination in chief that in fighting, accused appellant Khiv Singh was also present and he was having lathi in his hand but in the police statement Ex.D.10 and court statement Ex.D.18, he has stated that the aunt of Lal Singh took him in the house. In the cross examination, he has also stated that he cannot say as to where the accused inflicted injury on the person of Lal Singh. These contradictory statements of Magan Singh, PW 11 can also be said to be untrustworthy. 10. In view of the above discussion of statements of two witnesses viz; Nirmal Kanwar, PW 3 and Magan Singh, PW 11 on whose evidence, the trial Court has based the conviction of accused Khiv Singh, which cannot be sustained, especially when these two witnesses were not cited as eye witnesses in the FIR. The learned trial Court while relying upon the evidence of these two witnesses for the purposing of holding the 9 accused appellant guilty in commission of murder, has brushed aside the basic principles of appreciation of evidence. While appreciating the evidence, the Court has to evaluate in such circumstances that the evidence is of sterling worth and it links the accused with the commission of crime. Apart from the evidentiary value of cooked up eye witnesses, who were not named in the FIR, there is no recovery of lathi which is said to have been used by the appellant during commission of crime. 11. In the post mortem report, Ex.P.15, there are 20 injuries, said to have been inflicted by 9 accused persons and it cannot be said as to which injury was inflicted by the present accused appellant, especially when his presence itself at the scene of crime is creating doubt. 12. In the light of the above discussion, we are of the view that the finding of the learned trial Court holding accused appellant Khiv Singh guilty u/s.302 IPC is based on no evidence. 13. Consequently, we allow this appeal, set aside the judgment dt.8.1.04 passed by learned Addl.Sessions Judge (FT), 10 Parbatsar, convicting appellant Khiv Singh of the offence u/s.302 IPC & sentencing him to undergo life imprisonment alongwith a fine of Rs.1000/- & in default, to further undergo three months' S.I. and acquit him of the said charge. He shall be set at liberty forthwith, if not required in any other case. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS