Mohan Ram vs State Of Rajasthan
2022 Latest Caselaw 13329 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 210/1990

Mohan Ram S/o Shri Chuna Ram, by caste Jat, R/o Village
Geengala, Tehsil Osian, District Jodhpur.
                                                                   ----Appellant
                                    Versus
State of Rajasthan
                                                                 ----Respondent


For Appellant(s)          :     Mr. J.S. Choudhary, Sr. Advocate
                                assisted by Ms. Sampatti Choudhary
For Respondent(s)         :     Mr. B.R. Bishnoi, AGC



          HON'BLE MR. JUSTICE SANDEEP MEHTA
             HON'BLE MR. JUSTICE FARJAND ALI

                              JUDGMENT

Judgment pronounced on                  :::            14/11/2022

Judgment reserved on                    :::            02/08/2022


BY THE COURT : (PER HON'BLE MEHTA, J.)

The appellant herein has been convicted and sentenced as

below vide judgment dated 20.06.1990 passed by learned District

& Sessions Judge, Jodhpur in Sessions Case No.23/89:-

Offence    Sentences                  Fine            Sentence in lieu of
under                                                 default of payment of
Section                                               fine
302 IPC    Life Imprisonment Rs.50/-                  1 month's Additional RI

He has preferred the instant appeal under Section 374(2)

Cr.P.C. for assailing the impugned judgment of conviction and the

sentences awarded to him by the trial court.

(2 of 21) [CRLA-210/1990]

Briefly stated the facts relevant and essential for disposal of

the instant appeal are noted hereinbelow:-

Lumbaram (PW.5) lodged a written report (Ex.P/4) at the

Police Station Khedapa on 30.11.1988 at 11:15 AM alleging inter

alia that his uncle (Phupa) Shri Pemaram had collected wheat from

the ration shop at the village Hatundi and was proceeding towards

his house. Pattu, daughter of Shri Pemaram was accompanying

him. Both had reached near the dhani of Motaram, where

Mohanram came around with a wooden stick and gave the blow

thereof above the neck of Pemaram with the intention of killing

him. He inflicted another blow of the stick on the left elbow due to

which, Pemaram fell down on the ground. On seeing that

Pemaram had become unconscious, Mohanram ran away with the

weapon. Thereafter, Pemaram and his daughter proceeded to their

home. The witness went to meet Pemaram who disclosed the

entire sequence of events and requested Shri Lumbaram to lodge

a report with the police. Pemaram also told that he was not having

any means of transportation and thus, he could neither approach

the police nor had he gone to any doctor for treatment. It was

also alleged in the report that Pemaram and Mohanram had

quarrelled with each other about ten days ago over the issue of

cattle grazing.

On the basis of this report, an FIR No.67/88 (Ex.P/13) came

to be registered at the Police Station Khedapa on 30.11.1988 for

the offences punishable under Sections 341, 307 & 323 IPC. Shri

Pemaram was being taken to the hospital on 30.11.1988 but he

(3 of 21) [CRLA-210/1990]

passed away before reaching there. The investigation was

undertaken by SHO Babulal Joshi (PW.14). The dead body of Shri

Pemaram was subjected to autopsy at the Mahatma Gandhi

Hospital, Jodhupr on 01.12.1988 by Dr. Gulam Rakbani (PW.9)

who took note of following three injuries on the body of the

deceased:-

(1)    Swelling 6 cm x 4 cm on the left side temporoparietal region

(2)    Lacerated wound 3 cm x 1.5 cm facia deep on the left elbow

(3)    Abrasion 3 cm x 1 cm on the left knee

On opening the scalp, extradural and subdural haematoma

associated with fracture of left side temporoparietal bones were

noticed. The brain matter was coming out from the site of the

injury. The bones were shattered and blood was collected

underneath the wound. The medical jurist noted that the deceased

must have expired about 24 hours before autopsy was conducted.

The injury No.1 was opined to be sufficient in the ordinary course

of nature to cause death. The medical jurist issued the

postmortem report (Ex.P/8). The accused appellant was arrested

on 03.12.1988 vide arrest memo (Ex.P/3). Site inspection was

conducted. Statements of the witnesses were recorded. The

wooden stick used by the accused for assaulting the deceased was

recovered. After concluding investigation, a charge-sheet, was

filed against the appellant herein for the offence punishable under

Section 302 IPC which was exclusively triable by the Court of

Sessions and thus, the case was committed to the Courts of

Sessions Judge, Jodhpur. Charge was framed against the accused

for the above offence. He pleaded not guilty and claimed trial. The

(4 of 21) [CRLA-210/1990]

prosecution examined 14 witnesses and exhibited 16 documents

to prove its case. The accused was confronted with the

prosecution allegations in his statement under Section 313 Cr.P.C.

He denied the same, claimed to have been falsely implicated and

alleged that Pemaram had been hit by a bull and he was not

present at the spot. One witness was examined in defence. After

hearing the arguments advanced by the public prosecutor and the

defence counsel and appreciating the evidence available on

record, the learned trial court proceeded to convict and sentence

the appellant as above by the impugned judgment dated

22.06.1990, which is assailed in this appeal.

Shri J.S. Choudhary, learned Senior Counsel assisted by

Ms. Sampatti Choudhary, Advocate vehemently and fervently

urged that the entire prosecution case is false and fabricated. The

FIR (Ex.P/4) was lodged after gross and unexplained delay of

more than 36 hours of the alleged incident. The formal FIR which

was registered on 30.11.1988 was forwarded to the Magistrate as

late as on 01.12.1988 i.e., after more than 48 hours. The

prosecution has offered no explanation whatsoever for this gross

and undue delay in forwarding the report to the Magistrate. The

prosecution has claimed that the deceased Pemaram was

assaulted and received the fatal head injury on 28.11.1988 in the

evening at about 6 O' Clock. He urged that looking to the nature

of injury, as described by the medical jurist, there was no

possibility that the deceased could have walked home without any

assistance and thus, the statement of the child witness Pattu

(PW.7) wherein she made such assertion is absolutely

unbelievable and demolishes her evidentiary worth. He urged that

(5 of 21) [CRLA-210/1990]

the evidence of medical jurist clearly establishes that the

deceased could not have survived for more than two days after

receiving the severe head injury. He further contended that the

star prosecution witness Sushri Pattu has alleged that the accused

gave blow of a thick wooden stick on the head of the deceased. As

per Shri Choudhary, if any injury had been inflicted by a thick stick

on the head of the victim, it would have resulted into a lacerated

wound. However, the medical jurist Dr.Gulam Rakbani noted

presence of only a swelling on the temporoparietal region of the

deceased. Thus apparently, the injury was not received by the

deceased in the manner alleged by the prosecution. He further

contended that looking to the gravity of the injury suffered by the

deceased, there was no possibility of him having survived for

almost 48 hours as is alleged by the prosecution witnesses. He

thus, urged that the prosecution case deserves to be discarded

and the accused is entitled to be acquitted.

Without prejudice to the above submissions, Shri Choudhary

urged that if at all the accused is held responsible for causing the

solitary head injury to the deceased then too, the offence would

not travel to beyond Section 304 Part II IPC. He submitted that

the accused has remained in custody for a significant duration and

thus while toning down the offence, the accused deserves to be

sentenced to the period already undergone by him looking to the

fact that the incident took place almost 34 years ago.

Learned Public Prosecutor on the other hand, vehemently

and fervently opposed the submissions advanced by Shri

Choudhary. He submitted that the prosecution witnesses hail from

(6 of 21) [CRLA-210/1990]

a poor rural background and had no means of transportation.

Thus, the delay in lodging the FIR is well-explained. The family

members of Pemaram did not understand the gravity of the injury

suffered by him and thus, he was not taken to the hospital

immediately. The victim was of stout composition and thus, he

could survive for such a long duration despite being severely

injured. However, the fact that the blow on the head of the

deceased was inflicted with great force was duly proved by the

medical jurist. The impact of the blow was so forceful that it

shattered the temporoparietal bone of the deceased and the brain

matter came out from the wound and thus apparently, the

accused inflicted the head injury to the deceased with the

intention as well as knowledge of killing him. Learned Public

Prosecutor further submitted that the evidence of child witness

Pattu (PW.7) is absolutely trustworthy and reliable. She had no

motive whatsoever to falsely implicate the accused appellant for

the assault made on her father. Merely because, the FIR was

lodged with some delay, that cannot be a reason to discard the

testimony of a reliable eyewitness. On these grounds, learned

Public Prosecutor implored the Court to dismiss the appeal and

affirm the conviction of the appellant as recorded by the trial

court.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned judgment and have minutely re-appreciated the

evidence available on record.

(7 of 21) [CRLA-210/1990]

Before appreciating the evidence of the material prosecution

witnesses i.e,. the first informant Lumbaram (PW.5), the child

eyewitness Pattu (PW.7) and Smt.Meera (PW.8), wife of the

deceased, we would like to advert to the statement of the medical

jurist Dr. Gulam Rakbani (PW.9) who was a member of the

Medical Board which conducted autopsy upon the dead body of

Shri Pemaram at the Mahatma Gandhi Hospital, Jodhpur on

01.12.1988. The doctor stated that the procedure commenced at

12:45 PM. The Board noticed a swelling admeasuring 6 cm x 4 cm

on the left temporoparietal region of the head. There was a

lacerated wound on the left elbow and an abrasion on the left

knee. When the site of the injury was opened, sub-scalp

haematoma was noticed on the left temporoparietal region. Left

side parietal bones were shattered into pieces. The size of the

fracture was 6 cm x 5 cm. Subdural haematoma was present

beneath the fracture. Brain matter was coming out. The doctor

opined that Pemaram must have expired about 24 hours before

the postmortem examination was undertaken. Even if the opinion

of the doctor regarding time of death is considered to be an

estimate, apparently Shri Pemaram must have passed away some

time on 30.11.1988. In cross-examination, the doctor stated that

the injury no.1 was a swelling and there was no noticeable

bleeding on the wound. The doctor clearly stated that even if

Pemaram had been provided immediate treatment, he would not

have survived. The doctor also stated that the injuries suffered by

the victim must have been caused about 24 hours before the

postmortem examination was carried out.

(8 of 21) [CRLA-210/1990]

Though it is true that the medical jurist cannot give precise

opinion regarding the time of injuries but the estimated time of

injury can vary a few hours on either side and not more. In the

present case, the medical jurist stated that the injuries suffered by

the victim must have been caused about 24 hours before the

postmortem was conducted. Thus, even believing that time of

injuries was given as an estimate, there is no doubt in our mind

that the incident could not have taken place on 28.11.1988 as

alleged by the first informant Shri Lumbaram and the witnesses

Pattu and Meera. There is a strong reason for drawing this

conclusion. We are of the firm view that looking to the nature of

head injury suffered by Shri Pemaram, there was no possibility

that he could have regained senses immediately after receiving

the blow. Furthermore, the very possibility of his surviving for

almost 36 hours despite the grave head injury was next to

impossible. The medical jurist also opined so.

Having held so, we now proceed to discuss the evidence of

material prosecution witnesses. The incident was allegedly

witnessed by child witness Pattu (PW.7). She stated that she and

her father were returning home after collecting wheat from the

Village Hatundi. When they reached near the dhani of Motaram,

accused Mohanram came with a thick wooden stick and exhorted

that he would beat Pemaram. She and her father proceeded

towards the dhani of Motaram. Mohanram followed them and gave

a stick blow on her father's left hand. Her father entered into the

dhani of Motaram. However, Mohanram pursued him there and

gave a stick blow on the head of Shri Pemaram who fell down.

Even while her father was lying down, the accused Mohanram

(9 of 21) [CRLA-210/1990]

gave another blow of the stick on his right hand. No one was

present in the dhani. She and her father raised a hue and cry

upon which Mohanram ran away with the weapon. A woman

named Noji was sitting in the nearby dhani who did not come

there. She left her father in the dhani of Motaram and went to her

house for calling her mother. She told her mother of the incident

and both rushed to the place of incident. Her mother massaged

her father on which, he regained senses and started complaining

that he had been beaten badly. She and her mother picked up her

father and brought him back home. Then, she went back to the

dhani of Motaram to collect the wheat. She further alleged that

ten days before the incident, Mohanram had caused his goats to

trespass into their field. She opposed his attempt upon which,

Mohanram tried to hit her with a kassi but she snatched it and

took it to their home. She told about this incident to her father on

which, he went to the house of Mohanram and rebuked him.

In cross-examination, the witness stated that they went to

village Hatudi and collected the wheat. Half of the wheat was

carried by her father and she carried the remaining half. They did

not stop anywhere. The incident took place on the way from

village Hatudi to their dhani. The dhani of Motaram was at a

distance of 200 pavandas from the road. Dhanis of Jetharam,

Durgaram, Anaram, Motiram and Bheraram were located nearby

the dhani of Motaram and the owners of these dhanis resided

therein. Their dhani was at a distance of about 200-300 pavandas

from the dhani of Motaram. Mohanram's field was located just

near the road. He had planted Bajri in the field. When Mohanram

approached them on the road, they immediately diverted towards

(10 of 21) [CRLA-210/1990]

the dhani of Motaram. She tried to intervene when the accused

launched the assault on her father and in this process, she too

received an injury on her head. Her father fell down on receiving

the injury but he was talking. When she left her father and

proceeded to her dhani, it was still day light. No one was present

in the nearby dhanis and thus, she did not go there to get help or

make a complaint regarding the assault made on her father. She

told Noji of the incident but she refused to come to their aid. She

and her mother lifted/provided support to her father and brought

him back to their dhani. At that time, her father was speaking

slowly. About 2-4 people in the village own tractor. Two are with

Rajput's families, one is with Vishnoi family and one is owned by a

Jat who is related to the accused. After her farther had been

brought back, he told that he should be taken to the hospital. The

tractor owned by Rajput was at Phalodi. Dhanis of Megharam and

Motiram are at a distance of about 5 Kms from their dhani.

Megharam was her Mama and Lumbaram was her Mama's son and

both had appeared as witnesses in the case. Lumbaram, Kishan

Singh, Bheraram and two-three more persons had come to their

dhani to have a look at her father and she requested them that

her father should be taken to the hospital. Her father kept on

speaking throughout the night. She could not say as to what was

the frequency of buses which used to come to their village. Her

Mama Megharam came to their house at about 8 O' Clock. They

made efforts to search for means of transportation but could not

succeed. Her father was taken to the hospital after eight quarters.

He was not present at the home for whole of Tuesday and was

taken to the hospital in the early hours. The tractor owned by a

Vishnoi was arranged and her father was taken to the hospital

(11 of 21) [CRLA-210/1990]

therein. The most pertinent admission as appearing in the

evidence of Pattu (PW.7) is that after the incident her father

remained at their dhani only for one night. She refuted the

defence suggestion that her father was kept in the dhani for two

nights and one day. She was confronted with her police statement

regarding numerous contradictions and omissions. A specific

suggestion was given to the witness that as a matter of fact, her

father had been hit by a bull which she denied.

PW.8 Meera, being the wife of the deceased stated on oath

that the incident took place about a month ago. She was working

in her field. Her husband (the deceased Pemaram) and her

daughter Pattu had gone to fetch wheat from the ration shop.

There was still an hour to go for sunset when her daughter came

back running and stated that Shri Pemaram had been beaten in

the dhani of Motaram. She, along with her daughter rushed there

and saw her husband lying down on the ground. Injuries were

noticeable on both his hands and head. She massaged her

husband for a while and asked him as to who had beaten him on

which, he stated that Mohanram had beaten him by a wooden

club. She and her daughter Pattu, lifted Pemaram and brought him

back to their dhani. No one was available in the dhani of Motaram.

She gave hot fomentation to her husband whereby, he recovered

and started speaking. She sent her other daughter to summon her

nephew Lumbaram who came on the next morning whereas her

brother Megharam arrived on the next evening. Even when her

nephew Lumbaram and her brother Megharam came, her husband

was speaking. Her husband was taken to the hospital on the

morning of the third day after the incident as his condition had

(12 of 21) [CRLA-210/1990]

deteriorated. She stated that the motive for assault was an

incident which took place a few days earlier when Mohanram put

his goats for grazing in their field and her daughter Pattu

disallowed him from doing so. In this process, an altercation took

place between her husband Pemaram and the accused Mohanram.

Her husband expired at the hospital. She stated that when her

husband was brought home, Kishan Singh and few other people

came there.

In cross-examination, the witness stated that after her

husband was brought back to the dhani, Lumbaram Jat, Kishan

Singh and Bheraram came there. She requested these people to

arrange for transportation. Whether these people tried to procure

transportation or not, she could not say. She did not tell these

people that they should call her nephew and brother. Lumbaram

came to her dhani even before her daughter was sent to fetch

him. Lumbaram went to the police station on the very same day

he had come to her dhani. At that time, her husband was

speaking. After Lumbaram left, her husband vomited blood and

stopped talking. This event took place on the very day her

husband had been assaulted. She then modified her stand and

stated that her husband continued to speak till he was taken to

the hospital. Only swelling was visible and there was no bleeding

from the head injury suffered by her husband. When she went to

the dhani of Motaram, she could see blood lying there. She denied

the defence suggestion that when she went to the dhani of

Motaram, her husband was lying unconscious. The police recorded

her statement four days after the incident. She did not tell the

police that her husband was lying unconscious when they reached

(13 of 21) [CRLA-210/1990]

there. She denied the portion d to [k of her police statement

(Ex.D/4) wherein it is pertinently recorded that when she and

Pattu reached dhani of Motaram, her husband was lying

unconscious. A suggestion was given to the witness that as a

matter of fact, her husband received injuries as a result of being

hit by a bull. However, she denied the suggestion. She also denied

the suggestion that her husband never spoke after receiving the

injuries.

Lumbaram was examined as PW.5. He stated that Pemaram

was his uncle (Phupha). He went to the house of Pemaram on

29.11.1988 to meet him. When he reached there, Pemaram was

injured and complained that he had gone to fetch ration and was

coming back after picking up 50 Kgs of wheat. He reached near

the dhani of Motaram at which point of time, Mohanram came

there and hit him with a thick wooden club. He fell down as a

result of the blow. Even thereafter, the accused continued to

assault him. Pemaram also told that his daughter Pattu was

accompanying him at the time of the incident. He and Pattu

shouted on which, the accused ran away from the place of

incident. Pattu and his wife Meera came and took him home.

Pemaram requested that he did not have the means to go the

hospital and the matter should also be reported to the police. On

this, Lumbaram proceeded to the police station and lodged the FIR

(Ex.P/4). His uncle Megharam took Pemaram to hospital on the

evening of 29th November. The witness then moulded his version

and stated that Pemaram was taken to the hospital on 30 th

November. Three brothers of Pemaram are alive of them, two are

Gokalram and Amararam. The dhanis of Pemaram's brothers are

(14 of 21) [CRLA-210/1990]

located nearby his dhani and they live in these dhanis with their

families. When he reached the house of Pemaram on 29.11.1988,

Pattu and four other daughters of Pemaram were present at his

house. When the witness reached there, two more persons were

sitting there whom he could not identify. A little later, Bheraram

Vishnoi and Kishan Singh Rajput came there. He stayed in the

house of Pemaram till 11 O' clock on the next morning. Jetharam

owns a tractor and his dhani is located just near to the dhani of

Pemaram. Three-four other persons own tractors in the village but

none was available on that day. He and his uncle also own

tractors. However, these were also not available as they had been

sent out for farming operations. Camel carts are available in the

village of Pemaram. The witness denied the suggestion that he

made no effort whatsoever to take Pemaram to the hospital. He

stated that he went to the nearby dhani for bringing a tractor but

nobody was prepared to assist him. They did not have money and

thus, camel cart could not be engaged. He did not take Pemaram

to Jodhpur by availing the bus services because he did not have

money to do so. He went to the police station on a bicycle. The

witness was confronted with some contradictions/omissions viz-a-

viz his sworn testimony and the previous statements as well as

the FIR.

PW.6 Megharam stated that Pemaram's daughter came to

call him. He reached the house of Pemaram on 29 th in the night at

about 2 O' Clock. Pemaram was lying down at that time and

Lumbaram was sitting besides him. Three-four other people from

the village were also sitting there. At that time, the condition of

Pemaram was normal. He was speaking. He narrated the manner

(15 of 21) [CRLA-210/1990]

in which the incident happened. Pemaram requested that he

should be taken to the hospital and the matter should be reported

to the police. Lumbaram proceeded to the police station on the

morning of 30th. Pemaram was boarded on to the afternoon bus

which reaches Khedapa at about 1 O' clock. However, Lumbaram

and police party met them on the way and thus, Pemaram was

shifted into the police jeep and was being taken to the hospital

but, he expired on the way. In cross-examination, the witness

stated that Lumbaram was his nephew. Lumbaram's father had

gone to some other village on the day of the incident. Lumbaram

casually went to the village of Pemaram for collecting some

articles and proceeded to the house of Pemaram upon hearing

about the incident. Pemaram's daughter approached him at about

12 O' Clock in the afternoon. He was in his field at that time. He

reached home late in the evening. Till then, the child was sitting

there. It takes about an hour in reaching Pemaram's dhani from

his dhani. When he reached the dhani of Pemaram, Kishan Singh

Rajput and Bheraram were present there. Lumbaram, Pemaram's

wife and Pemaram's daughters were also present there. The

witness denied the suggestion that Lumbaram told him regarding

the assault made on Pemaram. He also denied the suggestion that

he reached the house of Pemaram on 30 th morning and suggested

that the condition of Pemaram was precarious and he should be

immediately taken to the hospital. The witness was extensively

confronted with his previous police statement (Ex.D/2) regarding

omissions/contradictions.

PW.1 Kishan Singh stated on oath that on 01.12.1988, the

police inspected the place where the incident took place in his

(16 of 21) [CRLA-210/1990]

presence. Motaram and Pattu, daughter of Shri Pemaram were

also present at the time of site inspection. Pattu was assisting the

police in the spot inspection. They did not go inside the house and

undertook the spot inspection of the outer areas. In cross-

examination, the witness stated that no marks of violence were

visible where the police undertook the spot inspection. Wheat was

not scattered at the place of incident.

PW.2. Gularam did not support the prosecution case and was

declared hostile.

PW.3 Karnaram, PW.4 Omprakash, PW.10 Sohanlal and

PW.13 Chandan Singh are all police witnesses and their evidence

is formal in nature.

PW.11 Bheraram being a Panch witness, did not support the

prosecution case and was declared hostile.

PW.12 Bhinyaram also did not support the prosecution case

and was declared hostile.

PW.14 Babulal Joshi was posted as SHO Police Station

Khedapa at the relevant point of time. He stated that Lumbaram

(PW.5) submitted the written report (Ex.P/4) before him on

30.11.1988 on the basis whereof the formal FIR (Ex.P/13) was

registered. After registering the FIR, he along with other members

of the police team started for the place of incident. On the way,

he noticed Shri Pemaram being taken in a bus. The condition of

Shri Pemaram seem to be precarious and he was unconscious. He

(17 of 21) [CRLA-210/1990]

was boarded on to the police jeep and was taken to the Baori

Hospital where the doctor examined and noted that Shri Pemaram

had expired. The dead body of Shri Pemaram was taken to

Jodhpur and was kept in the mortuary of Mahatma Gandhi

Hospital. Thereafter, formal investigation was undertaken. No

signs of violence were noticeable at the place of incident because

it happened three days ago.

The witness was cross-examined in relation to delay in

dispatch of the formal FIR but he could not explain the same. He

admitted that numerous dhanis including those of the brothers of

the deceased were located nearby the place of incident. When he

reached the place of incident, Motaram was present there. He did

not go inside the dhani of Motaram. He made enquiries from the

residents of the nearby dhanis but no one was prepared to give a

statement. The remaining evidence of the witness is more or less

formal in nature.

Having considered the tenor of the statements of the

witnesses, we now proceed to draw the following conclusions

therefrom:-

(i). that as per the FIR (lodged on 30.11.1988), the incident

took place on 28.11.1988. However, the child witness Sushri

Pattu (PW.7) admitted in her testimony that her father was

kept at home only for one night after the incident. She

further stated that her younger sister was sent to fetch

Lumbaram who reached their house on the very day of the

incident. Lumbaram (PW.5) stated that he reached the house

(18 of 21) [CRLA-210/1990]

of Shri Pemaram on 29.11.1988. These grave contradictions

regarding the date of the incident go to the root of the

matter and create a grave doubt upon the credibility of the

prosecution case.

(ii). We have carefully considered the evidence of medical jurist

Dr. Gulam Rakbani (PW.9). Considering the nature of injuries

as noticed by the doctor while preparing the postmortem

report (Ex.P/8) wherein, it is clearly mentioned that the

temporoparietal bones of the deceased were crushed into

pieces and the brain matter was coming out from the

membrane, we are of the firm view that there was no

possibility of Shri Pemaram having remained conscious or

having survived for two days despite receiving such a serious

head injury. The doctor categorically stated that the age of

the injuries which were noticed in the postmortem report

was about 24 hours. As the postmortem was carried out on

01.12.1988, apparently, the injuries must have been

received on 30.11.1988 or 29.11.1988 at best. Hence, there

is an absolute falsehood in the claim of the witness Pattu

(PW.7), Lumbaram (PW.5) and Meera (PW.8) that Pemaram

was assaulted on 28.11.1988. Apparently, Pemaram must

have received the injuries some time in the late hours of

29.11.1988 whereafter, the family members were called.

(iii). It has come in the evidence of the eyewitnesses that the

dhanis of Pemaram's three brothers are located just near to

his dhani. Thus, there was no rhyme or reason as to why

none of these near relatives were called immediately after

(19 of 21) [CRLA-210/1990]

the incident. This significant omission creates a further doubt

on the veracity of allegations set out in evidence of Pattu

(PW.7) and Meera (PW.8). It is not the case of prosecution

that Pemaram and his brothers were not on good terms and

thus, instead of going to the distant dhanis of Lumbaram

(PW.5) and Megharam (PW.6), the wife of the deceased, in

the natural course of events, would be expected to approach

the brothers of Pemaram who live nearby so that medical

care be provided to him at the earliest.

(iv). From the tenor of the evidence of Lumbaram (PW.5) and

Magharam (PW.6), we are of the firm view that the gross

delay in lodging of the FIR has not been explained. In

addition thereto, we may state that the formal FIR (Ex.P/13)

which was registered on 30.11.1988 reached the Court of

the concerned Magistrate on 01.12.1988 which is again after

a significant delay. Though, under ordinary circumstances,

the delay in forwarding the formal FIR to the Court is not

fatal but in the present set of facts which we have narrated

above, this delay assumes great significance and creates a

doubt on the genuineness of the entire prosecution case.

(v). The material prosecution witnesses persistently tried to claim

that Pemaram was conscious and was speaking for almost 48

hours after receiving the injuries. However, considering the

nature of the injuries suffered by him and the evidence of

the medical jurist, we are of the firm view that there was no

possibility whatsoever that the deceased would have been

conscious or remained in a position to speak even

(20 of 21) [CRLA-210/1990]

immediately after the incident what to say of 48 hours

thereafter. We feel that this story has been created by the

prosecution in order to somehow or the other fortify the

flimsy theory that Shri Pemaram made an oral dying

declaration before the witnesses. This is yet another

circumstance which creates a grave doubt on the

genuineness of the prosecution case.

(vi). The FIR has been lodged after significant unexplained delay

and we are of the firm view that the date and time of the

incident was intentionally concealed by the prosecution. The

presence of the child witness Pattu at the place of the

incident is doubtful. The very fact that Shri Pemaram could

have suffered the injury as described in the postmortem

report (Ex.P/8) by the blow of a wooden stick is doubtful in

view of the fact that the medical jurist did not notice any

laceration at the site of the head injury.

In wake of the discussion made hereinabove, we are of the

firm view that the evidence of the material prosecution witnesses

suffers from significant infirmities, is full of loopholes and doubtful

circumstances which makes it difficult for this Court to place

implicit reliance thereupon. The entire prosecution case, in our

opinion is made up and concocted and the accused seems to have

been framed for the crime owing to prior enmity.

Resultantly, we are inclined to reverse the impugned

judgment and acquit the accused by giving him the benefit of

doubt. Consequently, the impugned judgment dated 20.06.1990

(21 of 21) [CRLA-210/1990]

passed by learned District & Sessions Judge, Jodhpur in Sessions

Case No.23/89 is hereby quashed and set aside. The accused

appellant is acquitted of the charge. He is on bail. He need not

surrender. His bail bonds are discharged.

However, keeping in view the provisions of Section 437-A

Cr.P.C., the accused appellant is directed to furnish a personal

bond in the sum of Rs.15,000/- and a surety bond in the like

amount before the learned trial court which shall be effective for a

period of six months to the effect that in the event of filing of a

Special Leave Petition against the present judgment on receipt of

notice thereof, the appellant shall appear before the Supreme

Court.

Record be returned to the trial court forthwith.

                                   (FARJAND ALI),J                                        (SANDEEP MEHTA),J
                                    Sudhir Asopa/-









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