Mahaveer And Anr vs State Of Rajasthan Through Pp
2021 Latest Caselaw 2326 Raj/2

      THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

               1. D.B. Criminal Appeal No. 186/2018

1.      Mahaveer S/o Bhanwar Lal R/o Sahaspuriya, Police Station
        Hindoli, District Bundi. At Present in Central Jail, Kota.

2.      Prem Shanker S/o Choga Lal R/o Sahaspuriya, Police Station
        Hindoli, District Bundi. At Present in Central Jail, Kota.

                                                                   ----Appellants

                                     Versus

State of Rajasthan through PP.

                                                                 ----Respondent

Connected With

2. D.B. Criminal Appeal (DB) No. 376/2018

Bhanwar Singh S/o Shri Sangram Singh R/o Bus Stand Hindoli, Police Station Hindoli, District Bundi, Raj.

----Appellant

Versus

1. State of Rajasthan through PP.

2. Moti Lal S/o Bhanwar Lal R/o Sahaspuriya, Police Station Hindoli, District Bundi, Raj.

3. Pravat S/o Moti Lal R/o Sahaspuriya, Police Station Hindoli, District Bundi, Raj.

4. Satyanarayan S/o Moti Lal R/o Sahaspuriya, Police Station Hindoli, District Bundi, Raj.

----Respondents

CRLA No.186/2018 :

For Appellants/accused : Mr. Arvind Kumar Gupta, Advocate with Mr. Anurag Pareek, Advocate & Mr. Aniket Sharma, Advocate

For Complainant (s) : Mr. Rajendra Singh Tanwar, Advocate Mr. N.S. Gurjar, Public Prosecutor for State

CRLA No.376/2018 :

For Complainant (s) : Mr. Rajendra Singh Tanwar, Advocate

For Respondents/accused : Mr. Rinesh Kumar Gupta, Advocate Mr. N.S. Gurjar, Public Prosecutor for State

(2 of 18) [CRLAD-186/2018 & CRLA No.376/2018

HON'BLE MR. JUSTICE PRAKASH GUPTA HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA

//Judgment //

Date of Judgment ::: 9th April, 2021

Per : (Chandra Kumar Songara, J.) :

D.B. Criminal Appeal No. 186/2018 :

Instant D.B. Criminal Appeal No.186/2018 under Section

374 of the Code of Criminal Procedure, 1973 has been preferred on

behalf of the convict-appellants, namely (i) Mahaveer s/o Bhanwar Lal

and (ii) Prem Shankar s/o Choga Lal, assailing the impugned judgment

of conviction and the order of sentence dated 04.04.2018 passed by the

Court of learned Sessions Judge, Bundi, in Sessions Case No.39/2013,

whereby the appellants/accused were convicted and sentenced as

under:--

Offence U/s.       Imprisonment            Fine                  Sentence in default of
                                                                 payment
302 I.P.C.         Life Imprisonment       Rs.25,000/-           To further undergo six
                                           each                  months          simple
                                                                 imprisonment




             Complainant,    namely        Bhanwar      Singh        Rajput        has       also

preferred D.B. Criminal Leave to Appeal No.209/2018 under Section

378 (3) readwith Section 372 of the Code of Criminal Procedure, 1973

against the impugned judgment of conviction and the order of sentence

dated 04.04.2018 passed by the Court of learned Sessions Judge,

Bundi, in Sessions Case No.39/2013, whereby the respondents/accused,

namely (i) Moti Lal s/o Bhanwar Lal, (ii) Pravat s/o Moti Lal and (iii)

Satyanarayan s/o Moti Lal were acquitted for offences punishable under

(3 of 18) [CRLAD-186/2018 & CRLA No.376/2018

Sections 147 and 302 readwith Section 149 of Indian Penal Code by

giving benefit of doubt.

A Division Bench of this Court, vide its order dated

17.09.2018, had granted leave to appeal and ordered to register the

same as 'Criminal Appeal', thereby, the said appeal was registered as

D.B. Criminal Appeal No.376/2018.

By this common judgment, D.B. Criminal Appeal No.

186/2018 filed by the appellants/accused as well as D.B. Criminal

Appeal No.376/2018 preferred by the complainant - Bhanwar Singh

Rajput, are being decided together.

The brief facts of the prosecution case, which are relevant

and essential for the disposal of both the appeals, are herein below :-

Complainant - Bhanwar Singh Rajput (PW-1) had submitted

a written-report (Exhibit-P/1) to the S.H.O. Police Station, Hindoli

District Bundi alleging therein that on 12.01.2013 in the afternoon at

about 12:00 A.M. his brother Rajendra Singh came out from the house

and he was standing near a Sheesham tree, at that time, Mahaveer Jat,

Moti Jat, Prem Shankar, Parwat, Satya Narayan and Bhagwan, resident

of Sahaspuriya, armed with gandasi, sword and sariyas came with a

common intention to kill his brother Rajendra Singh and then and there,

Mahaveer Jat gave gandasi blow on his head, due to which, blood

started oozing. Afterwards, another injury was caused by accused Prem

Shankar on the head, due to which, blood started oozing. Thereafter, all

the persons started beating him, due to which, Rajendra sustained so

many injuries on his ribs and above the eye and after that, he became

unconscious. It was alleged that gold chain, which Rajendra Singh was

wearing in his neck, was also taken away. Brajraj Singh, Gajendra

Singh, Gopal Singh, Pokhar Lal and Kishan Singh were the eye-

witnesses of the alleged occurrence.

(4 of 18) [CRLAD-186/2018 & CRLA No.376/2018

On the aforesaid information, an F.I.R. bearing No.32/2013

(Exhibit-P/35) came to be lodged at Police Station Hindoli District Bundi

for offences punishable under Sections 143, 323, 307 and 379 of I.P.C.

During investigation, injured Rajendra Singh, who was under treatment,

died at Maitri Hospital, Kota, therefore, Section 302 of I.P.C. was also

added. After completion of investigation, the Police presented charge-

sheet against the accused-persons.

Charges were framed by the learned trial Court for offences

punishable under Sections 148 & 302 of I.P.C. and under Section 4/25

of Arms Act against Mahaveer, under Sections 147 and 302/149 of I.P.C.

against Moti Lal, Parwat, Satya Narayan and under Sections 147 and

302 of I.P.C. against Prem Shankar.

The accused denied the charges, pleaded not guilty and

claimed trial.

In order to prove its case, the prosecution examined as

many as twenty-three witnesses, during trial. Accused when examined

under Section 313 of Cr.P.C. after closing of the prosecution evidence,

prayed that they were innocent and had been falsely implicated in the

present case and chose to lead evidence in their defence.

In defence, one witness, namely Smt. Soniya Kumawat

(DW-1) Patwari was examined by the accused-appellants.

After hearing the arguments advanced by learned Public

Prosecutor for the State, learned defence counsel and learned counsel

appearing for the complainant and after appreciating the evidence

available on record, the learned trial Court proceeded to convict and

sentence the appellants/accused Mahaveer and Prem Shankar and

acquit the respondents/accused Moti Lal, Pravat and Satyanarayan as

stated above. Hence, these two appeals against conviction and acquittal

have been filed.

                             (5 of 18)                     [CRLAD-186/2018 & CRLA No.376/2018




            Learned   counsel       appearing       for     the      appellants/accused

submits that PW-2 Gajendra Singh, PW-5 Brijraj Singh, PW-6 Gopal

Singh, PW-10 Kishan Singh and PW-11 Pokhar Lal, who were named as

eye witnesses in the FIR, have not been treated as eye witnesses by the

trial court and contrarily PW-17 Durga Lal and PW-18 Kalu Lal Jangid,

who were treated as eye witness, have turned hostile. He further

submits that PW-17 Durga Lal and PW-18 Kalu Lal Jangid, who were

said to be the eye witnesses, did not corroborate their statements given

under Section 161 CrPC, therefore, their testimony was unreliable.

He further submits that the incident took place at Hindoli,

Distt. Bundi. The Police Station, Hindoli is nearer to the place of

occurrence, but no FIR was lodged there. On the contrary, FIR was

lodged on the basis of written report submitted by PW-1 Bhanwar Singh

at Maitri Hospital, Kota to the police personnel of Police Station, Hindoli.

He further submits that report was not submitted immediately after the

incident. As per Section 176 CrPC, it was the duty of the witnesses to

have informed the police immediately after the incident, if they were

present at the place of occurrence, but it was not done. Thus, it is clear

that the eye witnesses, who were named in the FIR, were not present at

the place of occurrence. He further submits that constable Ahmad, who

took the written report of PW-1 Bhanwar Singh from Maitri Hospital,

Kota to Police Station, Hindoli had not been examined. He further

submits that the learned Trial Court has utterly failed to consider as to

how the police was informed and how the police personnel of Police

Station, Hindoli reached at Maitri Hospital, Kota, where the written

report was alleged to have been submitted by PW-1. Even name of the

person was not disclosed by PW-1 by whom the report was got written.

In the present matter, FIR lodged was hit by Section 162 CrPC.

(6 of 18) [CRLAD-186/2018 & CRLA No.376/2018

Learned counsel appearing for the accused-appellants has

submitted that the prosecution has failed to prove its case beyond

reasonable doubts and the prosecution witnesses had tried to falsely

involve the accused in the present case. Counsel has further submitted

that as per Indoor Patient Record (Exhibit-P/40-A), injured/deceased

Rajendra Singh had been taken to Maitri Hospital at Kota on the very

same day i.e. 12.01.2013 at 01:50 P.M., whereas incident took place at

12 O' clock on that day at Hindoli, which was doubtful looking to the

distance between Hindoli to Kota.

It is also argued that the learned trial Court, without any

evidence, on the basis of the statements of hostile witnesses, who were

not named in the impugned F.I.R. and whose statements under Section

161 Cr.P.C. were recorded after a great delay and so-called eye-

witnesses, who were not the eye-witnesses, as per impugned judgment

and without considering the facts and circumstances of this case and

the material and legal aspect of the case, convicted the accused-

appellants Mahaveer and Prem Shankar. Lastly, counsel has prayed that

the appeal filed on their behalf be allowed and impugned judgment be

quashed and set aside.

During the course of arguments, learned counsel appearing

for the accused-appellants, has placed reliance upon the following

judgments :-

1. Raghunath and Ram Kishan & Others Vs. State of Haryana & Others, reported in AIR 2003 SC 165.

2. Marudanal Augusti Vs. State of Kerala, reported in AIR 1980 SC 638.

3. Meharaj Singh & Others Vs. State of U.P. & Others, reported in 1995 (19) ACR 175 (SC)

4. Bandi Mallaiah & Others Vs. State of A.P., reported in AIR 1980 SC 1160

5. Muluwa & Others Vs. The State of Madhya Pradesh, reported as AIR 1976 SC 989.

(7 of 18) [CRLAD-186/2018 & CRLA No.376/2018

6. Shankarlal Vs. State of Rajasthan, reported AIR 2004 SC 3559.

7. Din Dayal Vs. Raj Kumar @ Raju & Others, AIR 1999 SC

537.

8. Surinder Singh Vs. State of Punjab, reported in JT 1989 (2) SC 193.

9. Mohanlal Shamji Soni Vs. Union of India (UOI) & Others, reported in AIR 1991 SC 1346.

10. Jamuna Chaudhary & Others Vs. State of Bihar, reported in AIR 1974 SC 1822.

11. Lakhwinder Singh & Others Vs. State of Punjab, reported as AIR 2003 SC 2577.

12. Prakash Vs. State of Karnataka, reported as JT 2014 (5) SC 239.

13. Suresh Rai and Others Vs. State of Bihar, reported as AIR 2000 SC 2207.

14. Santa Singh Vs. State of Punjab, reported in AIR 1956 SC

526.

15. S. Subbulaxmi Vs. Kumarasamy & Others, reported in AIR 2017 SC 3322.

16. Amrika Bai Vs. State of Chhattisgarh, reported in AIR 2019 SC 1831."

The learned counsel appearing for the State as well as

learned counsel appearing for the complainant, opposed the

submissions advanced by the appellants/accused and urged that it is a

broad day-light brutal assault, which has been made by the appellants/

accused, who were armed with gandasis and sariyas on an unarmed

innocent victim Rajendra Singh on his head, which lead to excessive

bleeding and death of the victim. Hence, the impugned judgment

against the appellants/accused Mahaveer and Prem Shankar does not

warrant any interference of this Court in the appeal.

The learned counsel appearing for the complainant has

submitted that the learned trial Court has seriously erred in acquitting

the respondents/accused Motil Lal, Parvat and Satyanarayan. There

were ample evidence available on the record to show that the

(8 of 18) [CRLAD-186/2018 & CRLA No.376/2018

respondents/accused were guilty of the charges framed against them.

As such, the findings recorded by the learned trial Court are not

sustainable against the respondents/accused and prayed that the

appeal be allowed and impugned judgment be quashed and set aside

against the respondents/accused and they may be convicted and

sentenced adequately.

The learned counsel appearing for the respondents/accused

has opposed the submissions advanced by the learned counsel

appearing for the complainant.

We have given our thoughtful consideration to the rival

submissions made by the learned counsel appearing for the parties and

have gone through the impugned judgment as well as material available

on record.

In the case of State of Gujarat Versus Bhalchandra

Laxmishankar Dave (CRIMINAL APPEAL NO.99 OF 2021), it has been

held by the Hon'ble Apex Court that being first Appellate Court, the

High Court was required to re-appreciate the entire evidence on record

and also the reasoning given by the learned Trial Court while convicting

the accused. Non re-appreciation of the evidence on record may affect

the case of either the prosecution or even the accused. Being the First

Appellate Court, the High Court ought to have re-appreciated the entire

evidence on record without any limitation, which might be there while

dealing with an appeal against the order of acquittal passed by the

learned Trial Court.

After perusing the written-report (Exhibit-P/1), impugned

F.I.R. (Exhibit-P/35), statements of Bhanwar Singh (PW-1) and

Surendra Kumar Danodiya (PW-20), Investigating Officer, it is proved

that the written-report of the alleged incident was lodged without any

undue delay. Gajendra Singh (PW-2) deposed that the site-plan of the

(9 of 18) [CRLAD-186/2018 & CRLA No.376/2018

place of alleged incident (Exhibit-P/2) was prepared in his presence.

Police seized blood smeared soil and control soil in his presence vide

Exhibit-P/3 and Exhibit-P/4. Riyasat Ali (PW-3) and Bharat Singh (PW-4)

and Investigating Officer Surendra Kumar Danodiya (PW-20)

corroborated the evidence adduced by Gajendra Singh (PW-2).

Kishan Singh (PW-7) deposed that Police prepared

Panchnama of the dead-body of Rajendra Singh vide Exhibit-P/15 in his

presence and after that dead-body of Rajendra Singh was handed over

to the uncle of deceased vide Exhibit-P/16. Om Prakash Singh (PW-8),

Surendra Kumar Danodiya (PW-20), Investigating Officer and Chandan

Dan Barhath (PW-21) corroborated the evidence of Kishan Singh (PW-

7).

Devendra Singh (PW-9) deposed that Police seized the blood

smeared clothes of Rajendra Singh in his presence. Exhibit-P/17 is a

seizure memo of blood stained one shirt, one baniyan and one pant of

injured Rajendra Singh. Surendra Kumar Danodiya (PW-20)

Investigating Officer corroborated the evidence of Devendra Singh (PW-

9).

Kailash Chand (PW-12) Patwari deposed about the

Jamabandi, Khasra Girdavari and map-trace vide Exhibit-P/19, Exhibit-

P/20 and Exhibit-P/21 respectively. Chandandan Barhath (PW-21)

Investigating Officer corroborated the evidence of Kailash Chand (PW-

12), Patwari.

Girdhar Singh (PW-13), Head Constable deposed about the

receipt of F.S.L. vide Exhibit-P/22, entry in Malkhana Register vide

Exhibit-P/23 to Exhibit-P/25. Ashok Kumar (PW-16) also deposed about

the receipt of F.S.L. vide Exhibit-P/22. Chandandan Barhath (PW-21),

Investigating Officer corroborated the evidence of Girdhar Singh (PW-

13) Head Constable.

(10 of 18) [CRLAD-186/2018 & CRLA No.376/2018

Giriraj (PW-15) deposed that accused Mahaveer and Prem

Shankar were arrested vide arrest memos Exhibit-P/28 and Exhibit-P/29

respectively. He further deposed that one motorcycle TVS Star bearing

registration No.RJ-08-SA-8668 has been seized from the possession of

accused Mahaveer vide Exhibit-P/31. Surendra Kumar Danodiya (PW-

20), Investigating Officer corroborated the evidence of Giriraj (PW-15).

Sheesh Ram, (PW-22), the then S.H.O. Police Station, Hindoli deposed

that the charge-sheet had been filed in the Court.

Kishan Singh (PW-10), who is an eye-witness, as per written-

report (Exhibit-P/1), had turned hostile to the prosecution case.

Bhanwar Singh Rajput (PW-1)/complainant deposed in his

statement that at the time of incident, his brother Rajendra Singh came

to the house from the market on the motor-cycle. Kalu Lal Jangid and

Durga Lal Meena were also with him on the motor-cycle. Gajendra

Singh (PW-2), Riyasat Ali (PW-3), Brij Raj Singh (PW-5), Gopal Singh

(PW-6) and Pokhar Lal (PW-11), all eye-witnesses corroborated the

evidence of Bhanwar Singh Rajput (PW-1) in their examination-in-chief.

Bhanwar Singh Rajput (PW-1) admitted in his cross-examination that

the above said statement was not mentioned in the written-report

(Exhibit-P/1) and the Police statements, Exhibit-D/1 & Exhibit-D/2.

Gajendra Singh (PW-2), Riyasat Ali (PW-3), Brijraj Singh (PW-5) and

Gopal Singh (PW-6) also admitted in their cross-examinations that the

above said statement was not a part of their Police statements, Exhibit-

D/3, Exhibit-D/4, Exhibit-D/5 and Exhibit-D/6 respectively. Chandandan

Barhath (PW-21), Investigating Officer admitted in his cross-

examination that it was true that the names of Kalu Lal and Durga Lal

had not been mentioned in the written-report (Exhibit-P/1) and in the

Police statements of eye-witnesses, Bhanwar Singh, Brijraj Singh, Gopal

Singh, Pokhar Lal and Riyasat Ali recorded under Section 161 Cr.P.C.

(11 of 18) [CRLAD-186/2018 & CRLA No.376/2018

Durga Lal (PW-17) and Kalu Lal Jangid (PW-18) were declared hostile to

the prosecution case. Thus, it is not proved that Durga Lal and Kalu Lal

were eye-witnesses to the alleged incident. However, they had not

supported the prosecution story, as they were declared hostile to the

prosecution case.

Bhanwar Singh Rajput (PW-1)/complainant/eye-witness

deposed in his statement that Mahaveer was armed with gandasi, Prem

Shankar was armed with sariya etc., first of all, Mahaveer inflicted

gandasi blow from the sharp-edged on the head of Rajendra Singh,

thereby his head burst and blood started oozing. Afterwards, Prem

Shankar with both hands inflicted vigorous blows of sariya on the head

of Rajendra Singh, thereby his head burst. Gajendra Singh (PW-2),

Riyasat Ali (PW-3), Brijraj Singh (PW-5), Gopal Singh (PW-6) and

Pokhar Lal (PW-11) corroborated the evidence of Bhanwar Singh (PW-

1). The names of Brij Raj Singh (PW-5), Gajendra Singh (PW-2), Gopal

Singh (PW-6), Pokhar Lal (PW-11) and Kishan Singh (PW-7) were

mentioned in the written-report (Exhibit-P/1), as eye-witnesses.

Bhanwar Singh (PW-1) complainant admitted in his cross-examination

that Brijraj Singh is his brother, Gajendra Singh is son of his uncle and

Gopal Singh is son of his Tau (elder brother of father). Pokhar Lal (PW-

11) admitted in his cross-examination that he was tenant of Rajendra

Singh.

In examination-in-chief, Bhanwar Singh (PW-1) stated that

the alleged incident occurred within 2-3 minutes......... We called an

Ambulance at 108 and took Rajendra Singh to Hindoli Hospital. Due to

the serious condition, Rajendra Singh was later-on referred to Bundi

Hospital. Again due to his deteriorated condition, he has been referred

to Kota for treatment, where he was admitted to Maitri Hospital, Kota.

Bhanwar Singh (PW-1) further stated in cross-examination that he

(12 of 18) [CRLAD-186/2018 & CRLA No.376/2018

reached Kota at about 02:00 P.M. after the alleged incident. He stated

that it is true that treatment of deceased was not given at Hindoli and

Bundi Hospital. As such, contention of learned counsel appearing for the

accused-appellants, has no force that the deceased Rajendra Singh may

not have reached from Hindoli to Kota within two hours, looking to the

distance between Hindoli to Kota.

Gopal Singh (PW-6) deposed in his statement that Police

had recovered gandasi from Mahaveer and Sariya from accused Prem

Shankar vide recovery memos Exhibit-P/5 & Exhibit-P/7 and site-plan of

recovery place, Exhibit-P/10 and Exhibit-P/12. Chandandan Barhath

(PW-21), Investigating Officer corroborated the evidence of Gopal Singh

(PW-6).

Dr. Mamraj Agarwal (PW-23), a Neurosurgeon at Maitri

Hospital, Talvandi Kota, has deposed about the Exhibit-P/40 to Exhibit-

P/57; Indoor Patient Tickets, Comments, Sonography Report, Bed-head

Ticket, Original Chart, Medical Record, Blood Transfusion Report and

Tehrir etc.

Dr. Manoj Jain (PW-19) a Medical Jurist at General Hospital,

Bundi, on 15.01.2013 conducted autopsy of the deceased Rajendra

Singh. Doctor had found the following injuries on the person of

deceased :-

"1. Bruise 2½" x 1½" left chest anteriorly upper part near shoulder greenish blue colour.

2. Bruise 6"x1½" out chest at sternum region parallel greenish blue colour.

3. Bruise 2"x1½" rounded right chest wall out below shoulder greenish blue colour.

4. Bruise rounded 1"x 1" and 1"x1" and ½" x ½" right arm greenish blue colour.

On dissection chest :-

On cut section chest wall defuse heamatoma chest wall anteriorly at sternal area more on left side. There is fracture of

(13 of 18) [CRLAD-186/2018 & CRLA No.376/2018

5th rib left anteriorly with laceration of 1/2" x 1/2" left mid lobe of lung. Little hemorrhagic fluid in pleural cavity.

5. Stitched wound of 3" right parietal region lower side dark blue scabbing

6. Stitched wound of 2 ½" right parietal region 3" away with mid line dark-scab.

7. Stitched wound of 5" left parieto frontal region, oblique.

B/L blackening of eye lids with swelling.

On dissection - on cut section skull - There is extensive soft tissue hematomas from left fronto parietal and little hematomas on right side parietal ... There is fracture left parietal bone separation in pieces irregular compressing left parietal lobe. There is fracture of left parietal bone and right parietal bone. Subdural hematomas of 100 ml left parietal area with intra cerebral hemorrhagic laceration of left parietal lobe near mid line of 2" x 1/2". Contusion of 2"x 1/2" left parietal lobe little hemorrhagic fluid in base of skull. There is fracture of B/L temporal bone and post parietal bone.

Probable duration since death is about 1 to 6 hours.

All injuries was ante-mortem in nature.

Opinion :- In opinion of Medical Board, the cause of death is due to head injuries. That was ante-mortem in nature and sufficient to cause death."

Post-mortem report is Exhibit-P/34, A to B are his

signatures and C to D is opinion of the Medical Board.

Smt. Soniya Kumawat (DW-1) deposed about Exhibit-D/9

copy of Jamabandi, Exhibit-D/10 Map-trace, Exhibit-D/11 to Exhibit-

D/14 Khasras, Exhibit-D/15 Jamabandi and Exhibit-D/16 Map-trace. In

her cross-examination, she admitted that before issuing certified copies

of Khasras, Exhibit-D/11 to Exhibit-D/14, however, she did not

physically verify the sight itself.

From the appreciation of above evidence, it has been proved

by the prosecution that the written-report (Exhibit-P/1) of the alleged

incident was lodged without any delay. It is evident that Bhanwar Singh

(PW-1)/complainant, Gajendra Singh (PW-2), Riyast Ali (PW-3), Brijraj

Singh (PW-4), Gopal Singh (PW-6) and Pokhar Lal (PW-11), who all

supported the prosecution story as eye-witnesses, although except

Riyasat Ali (PW-3) and Pokhar Lal (PW-11), are relatives of deceased

(14 of 18) [CRLAD-186/2018 & CRLA No.376/2018

Rajendra Singh. Pokhar Lal (PW-11) was tenant of deceased Rajendra

Singh. Their evidence are corroborated by Dr. Manoj Jain (PW-19) and

Post Mortem Report, Exhibit-P/34. As per Post Mortem Report, Exhibit-

P/34, the cause of death was due to head injuries and injuries Nos. 5 to

7 were stitched wounds at right parietal region and left frontal parietal

region. Thus, the prosecution has successfully corroborated the medical

evidence of the eye-witnesses and the complainant. Minor

contradictions do not affect the prosecution case.

The Hon'ble Supreme Court in the case of Karulal &

Others Vs. State of Madhya Pradesh, reported as 2020 Cr.L.R.

(SC) 1150, in Paras 19, 20, 23 & 24, observed as under :-

19. It may further be noted that Babu Lal(PW11)is an unrelated witness. His testimony substantially supports the evidence of PW3 and PW12 in all material particulars. In any case, being related to the deceased does not necessarily mean that they will falsely implicate innocent persons. In this context, it was appropriately observed by Justice H.R. Khanna in State of Uttar Pradesh vs. Samman Dass2

"23......................It is well known that the close relatives of a murdered person are most reluctant to spare the real assailant and falsely involve another person in place of the assailant..................."

20. Again in a later decision of this Court in Khurshid Ahmed vs. State of Jammu and Kashmir3 one of us, Justice N.V. Ramana on the issue of evidence of a related witness was justified in declaring that:

"31. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused (See Harbans Kaur Vs. State of Haryana)"

The above precedents make it amply clear that the testimony of the related witness, if found to be truthful, can be the basis of conviction and we have every reason to believe that PW3 and PW12 were immediately present at the spot and identified the accused with various deadly weapons in their hands.

23. The appellant's counsel also submitted that few of the witnesses had not supported the prosecution case and were declared to be hostile. But there are enough material evidence and trustworthy testimonies which clearly support the case against the accused and the prosecution need not fail on this count alone. Some witness may not support the prosecution story for their own reasons and in such situation, it is necessary for the Court to determine whether the other available evidence comprehensively proves the charge. In this case, it is seen that the prosecution version is cogent and supported by three eyewitnesses who have given a consistent account of the incident. Their testimonies are

(15 of 18) [CRLAD-186/2018 & CRLA No.376/2018

corroborated by the medical evidence. The learned Trial Judge had elaborately discussed the evidence of both sides and came to a logical conclusion which inspires confidence. We are therefore of the view that the hostile witnesses will not affect the conviction of the appellants.

24. Proceeding on the above basis and on careful examination of the manner in which the learned Trial Judge analysed the evidence and rendered his verdict, the conviction of the appellants according to our assessment, was rightly ordered and correctly upheld by the High Court. It is declared accordingly."

As per corroborative evidence, prosecution has also proved

the recovery of weapons i.e. gandasi and sariya from accused Mahaveer

and Prem Shankar with the evidence of Gopal Singh (PW-6) and

Chandandan Barhath (PW-21), Investigating Officer.

The appellants/accused Mahaveer and Prem Shankar were

carrying the weapons and, thus, the incident was apparently

perpetrated in a well planned manner and with full preparation. It is,

thus, a clear case of premeditated attack by the appellants/accused on

the victim Rajendra Singh leading to his death by the weapons like

gandasi and sariya. The intentional gandasi and Sariya blow, which was

inflicted on the head of Rajendra Singh without any provocation etc.

Using great force causing three head injuries on right parietal region

and left frontal parietal region proved fatal. Dr. Manoj Jain (PW-19),

who conducted the Post-mortem of deceased Rajendra Singh, as per

opinion of the Medical Board, opined that the cause of death was due to

head injuries, which were ante-mortem in nature and sufficient to cause

death. The intention of the appellants/accused, while inflicting the

forceful gandasi and sariya blows on the vital parts i.e. head of victim,

was to murder and nothing else.

Smt. Soniya Kumawat (DW-1) a defence witness deposed

about the Jamabandi etc.

Judgments relied upon by the learned counsel appearing for

the appellants/accused as also the submissions made by appellants/

(16 of 18) [CRLAD-186/2018 & CRLA No.376/2018

accused fail to advance the case of the appellants/accused, as

prosecution has successfully corroborated the medical evidence of the

eye-witnesses and the complainant. Minor contradictions do not affect

the prosecution case.

Thus, it is our firm opinion that the trial Court has rightly

found the guilt of the appellants/accused Mahaveer and Prem Shankar

vide its impugned judgment dated 04.04.2018, which does not suffer

from any illegality, infirmity or perversity warranting interference of this

Court in the appeal filed by accused/ appellants Mahaveer and Prem

Shankar.

Hence, D.B. Criminal Appeal No.186/2018 filed by

appellants/accused Mahaveer and Prem Shankar, being devoid of

merits, deserves to be dismissed.

So far D.B. Criminal Appeal No.376/2018 of complainant

Bhanwar Singh against respondents/accused, namely (i) Moti Lal s/o

Bhanwar Lal, (ii) Pravat s/o Moti Lal and (iii) Satyanarayan s/o Moti Lal

is concerned, in written-report (Exhibit-P/1) no specific role was

attributed against the respondents/accused. Bhanwar Singh (PW-1)/

complainant/eye-witness and other eye-witnesses Gajendra Singh (PW-

2), Riyasat Ali (PW-3), Brijraj Singh (PW-5), Gopal Singh (PW-6) and

Pokhar Lal (PW-11) in their examination-in-chief stated that no specific

role was attributed against the respondents/accused.

Kishan Singh (PW-10), Durga Lal (PW-17) and Kalu Lal

Jangid (PW-18) were declared hostile to the prosecution case.

Hon'ble Supreme Court in Allarakha K.Mansuri v. State

of Gujarat, 2002(1) RCR () 748, has held that where, in a case, two

views are possible, the one which favours the accused, has to be

adopted by the Court.

(17 of 18) [CRLAD-186/2018 & CRLA No.376/2018

Similarly, in Mrinal Das & others v. The State of Tripura,

2011 (9) Supreme Court Cases 479, Hon'ble Supreme Court, after

looking into various judgments, has laid down parameters, in which

interference can be made in a judgment of acquittal, by observing as

under: -

"8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed"

Thus, our firm opinion is that the trial Court has rightly

acquitted the respondents/accused Satya Narain, Parwat and Motilal, by

the impugned judgment dated 04.04.2018, which does not suffer from

any illegality, infirmity or perversity warranting interference of this

Court in the appeal filed by complainant -Bhanwar Singh.

Hence, D.B. Criminal appeal No.376/2018 filed by the

complainant - Bhanwar Singh against respondents/accused Satyanarain,

Parwat and Motilal, being devoid of merits, deserves to be dismissed.

(18 of 18) [CRLAD-186/2018 & CRLA No.376/2018

Consequently, D.B. Criminal Appeal No.186/2018 filed

on behalf of appellants/accused, namely Mahaveer and Prem Shankar,

as well as D.B. Criminal Appeal No.376/2018 filed on behalf of

complainant, namely Bhanwar Singh against respondents/accused, are

dismissed.

Let a copy of this order be placed in connected appeal.

(CHANDRA KUMAR SONGARA),J (PRAKASH GUPTA),J

ASHOK/18-19

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