DBCr.Leave to Appeal No.220/2007 State of Rajasthan Vs. Prem Chand [ 1 ] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :::: State of Rajasthan Vs. Prem Chand D.B. CR. LEAVE TO APPEAL NO.220/2007 AGAISNT THE ORDER AND JUDGMENT DATED 10.8.2007 PASSED BY THE LEARNED ADDL. SESSSIONS JUDGE, NIMBAHERA IN SESSIONS CASE NO.32/2006 DATE OF ORDER :::: 29.5.2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA, J. Mr. VR Mehta, Public Prosecutor. Mr. Sandeep Mehta, for the respondent-accused. <><><> This leave to appeal has been preferred by the State against the judgment dated 10.8.2007 passed by the Court of Addl. Sessions Judge, Nimbahera in Sessions Case No.32/2006 whereby the learned trial court acquitted the respondent-accused Prem Chand for the charge under Section 302 IPC. As per the prosecution case on 18.3.2006 in the night at 9.00 PM, PW-1 Gopal Dhakad, who was Sarpanch of village Dhalla submitted a report Ex.P/1 to Ranveer Singh (PW-10), ASI, Police Station, Nimbahera at Government Hospital, Nimbahera that on 18.3.2006 itself one Bherlal S/o Pyaralal Bheel, Ward Panch resident of Dhala and Narayan S/o Bhera Bheel resident of Dhala came to his house and told him that DBCr.Leave to Appeal No.220/2007 State of Rajasthan Vs. Prem Chand [ 2 ] the respondent-accused Prem Chand gave beating to his brother Onkarlal day before yesterday because of which Onkarlal's left hand broke down. Today also, he gave beating to Onkarlal, which caused serious injuries on the body of Onkarlal. Onkarlal is lying on the Chabutara of the village. After receipt of this information from said Bherulal and Naryan, the complainant PW-1 Sarpanch Gopal went to the Chabutara of the village along with Ratanlal Luhar and inquired from him then the victim Onkarlal told him that victim Onkarlal's brother Prem Chand respondent-accused grabbed his land and the victim is demanding return of the land to him and because of that his brother Prem Chand used to beat him. The victim told that, day before yesterday also he was beaten by his brother and today also he was beaten by his brother. According to PW-1 at that time, no other person was there and after giving beating, the respondent-accused Prem Chand ran away from the place of beating. PW-1 first informed the police on telephone about the incident then the policed reached at the scene of occurrence, but at that time, the victim was not speaking anything and, thereafter, he was taken to hospital where he died. On this information, FIR no.130/2006 was registered under Section 302 IPC. The Panchnama of the body Ex.P/2 was prepared and site inspection report Ex.P/3 was also prepared. DBCr.Leave to Appeal No.220/2007 State of Rajasthan Vs. Prem Chand [ 3 ] The accused was arrested and in pursuance of information given by him under Section 27 of the Evidence Act Ex.P/12, vide Ex.P/7, one Lathi was recovered from the accused. The victim's body was sent for postmortem and postmortem report Ex.P/11 was obtained. Copy of Jamabandi Ex.P/20 was also produced to show that deceased and his brother respondent- accused had joint agricultural land. The challan was filed against the respondent-accused and charge was framed for offence under Section 302 IPC, which was denied by the respondent-accused and he sought trial. The prosecution produced total 15 witnesses and 21 documents. The accused statement under Section 313 Cr.P.C. was recorded wherein he denied all the charges. Before the trial court, both Bherulal and Narayan did not support the prosecution case and they were declared hostile. Said Bherulal PW-6 and Naryan PW-7 stated that when they reached to the place where the victim was lying, he was not in position to speak and, therefore, he did not tell that his brother gave beating to him. Therefore, there is no corroborative evidence to PW-1's statement that victim told him that respondent-accused Prem Chand gave beating to him and that was due to some land dispute. There are to more witnesses PW-4 Daula and PW-5 Kalu who have been presented as eye witnesses but their names are not mentioned DBCr.Leave to Appeal No.220/2007 State of Rajasthan Vs. Prem Chand [ 4 ] in the FIR and that fact may not be very much important because the FIR was lodged by a person who himself was not present on the scene of occurrence, but from the statement of PW-4 Daula and PW-5 Kalu it is clear that they are not supporting the prosecution case and according to PW-4 Daula when he was sitting in his house, he saw Onkarlal was running and Prem Chand respondent-accused was after him and he lifted one lathi and inflicted injury on Onkarlal's left hand and on the back. He stated that Lathi was of witness PW- 5 Kalu who was handicapped, therefore, he was keeping the Lathi with him. He specifically stated that respondent- accused gave two beatings by Lathi. He admitted that he did not tell this to anybody nor he intervened. PW-5 Kalu stated that Prem Chand took his Lathi and gave beating to Onkarlal. He gave one or two blows on Onkarlal. He stated that he has no knowledge on which part that Lathi hit Onkarlal. His behaviour was also quite doubtful. PW-5 Kalu stated that after the incident, Onkarlal remained lying for 2-3 days in Kabootarkhana and, thereafter, police took him whereas as per prosecution case the victim died on the day when he was given beating by the accused-respondent i.e., on 18.3.2006. PW-4 Daula and PW-5 Kalu stated that material part of their statement recorded under Section 161 Cr.P.C. they did not give. The prosecution also produced victim's daughter PW-11 DBCr.Leave to Appeal No.220/2007 State of Rajasthan Vs. Prem Chand [ 5 ] Kesar. She was also declared hostile and she stated that the land, which came in the share of her father, her father was cultivating. In view of the above, the trial court held that the prosecution failed to prove that there was dispute between the two brothers – victim Onkarlal and respondent-accused Prem chand. In view of the above reasons and evidence referred above, we are of the view that it is not a fit case for grant of leave to appeal. Hence, this leave to appeal is dismissed. (CHAND MAL TOTLA), J. (PRAKASH TATIA), J. c.p.goyal/-