Kanhaiya Lal S/O Govind Lal B/C ... vs State Of Rajasthan
2023 Latest Caselaw 2256 Raj/2

[2023/RJJP/002622]



        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                     D.B. Criminal Appeal No. 153/2019

1.         Kanhaiya      Lal       S/o   Govind       Lal,    R/o   Malanwasa   Ps
           Sarolakala Dist. Jhalawar Raj. At Present In Dist. Jail
           Jhalawar

2.         Hukam       Chand        S/o     Keshrilal,       R/o    Malanwasa   Ps
           Sarolakala Dist. Jhalawar Raj. At Present In Dist. Jail
           Jhalawar

3.         Heera Lal S/o Govind, R/o Malanwasa Ps Sarolakala
           Dist. Jhalawar Raj. At Present In Dist. Jail Jhalawar

4.         Satyawan S/o Govind, R/o Malanwasa Ps Sarolakala
           Dist. Jhalawar Raj. At Present In Dist. Jail Jhalawar

                                                                     ----Appellants

                                         Versus

State Of Rajasthan, Through PP
                                                                    ----Respondent

Connected With

D.B. Criminal Appeal (DB) No. 132/2019

Surajmal S/o Shri Shyoji, R/o Maalanwas Ps Sarolakalan Dist. Jhalawar (At Present Confined In Dist. Jail Jhalawar)

----Appellant

Versus

State Of Rajasthan, Through PP

----Respondent

For Appellant(s) : Mr. Santosh Kumar Jain Dr. Mahesh Sharma with Mr. Manish Kumar Saini and Ms. Harshita Sharma, Mr. Vivek Yadav

For Respondent(s) : Mr. Javed Choudhary, AGA Mr. Anil Khanna, for the complainant

[2023/RJJP/002622] (2 of 9) [CRLAD-153/2019]

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE ASHUTOSH KUMAR

Order

JUDGMENT RESERVED ON : 19/01/2023 DATE OF PRONOUNCEMENT : 21/02/2023 (PER HON. ASHUTOSH KUMAR, J.)

The present appeals have been preferred against the

common judgment and order dated 28.03.2019 passed by learned

Special Judge, NDPS cases, Jhalawar in Sessions Case

No.14/2017, therefore these appeals are being disposed by this

single judgment.

Learned trial Court vide its judgment has convicted and

sentenced the appellant-Kanhaiya Lal for the offences under

Sectons148 and 302 IPC and other appellants Heera Lal, Hukam

Chand, Surajmal and Satyawan for the offences under Sections

148, 302 read with Section 149 IPC as under:

Under Section 148 IPC:- 3 years R.I. and fine of Rs.5,000/- each, in default of payment of fine further 6 months additional R.I. to each accused-appellant; Appellant-Kanhaiya Lal under Section 302 IPC and appellants Heera Lal, Hukam Chand and Satyawan under Sections 302/149 IPC:- Imprisonment for life and fine of Rs.1,00,000/- each, in default of payment of fine further 2 years additional R.I. to each accused- appellant;

In the present case, complainant-Gyan Bai submitted a

written complaint on 14.10.2011 to S.H.O., Sarolakala, District

Jhalawar, stating therein that on 14.10.2011 at 06.30 a.m., her

husband-Panna Lal was going on motorcycle from his house

[2023/RJJP/002622] (3 of 9) [CRLAD-153/2019]

towards temple in the village; near the temple, Heera Lal,

Surajmal, Satyawan, Kanhaiya Lal and Hukam Chand were sitting

armed with weapons. All the accused persons attacked her

husband-Panna Lal with sharp edged weapons and killed him in

her presence.

On this complaint, an FIR No.174/2011 was registered under

Section 143 and 302 IPC. After investigation, charge-sheet was

submitted before the Court of Judicial Magistrate, Khanpur, District

Jhalawar against the accused Kanhaiya Lal and Hukam Chand for

the offence punishable under section 302 read with section 34

IPC.

The case was committed for trial. During trial, after recording

the evidence of some of the prosecution witnesses, upon

application of prosecution under section 319 CrPC, cognizance

against Heera Lal, Surajmal and Satyawan was also taken for the

offences under section 302 IPC.

Accused-Appellant Kanhaiya Lal was charged with the

offences punishable under section 302 and 148 IPC whereas, all

other accused persons were charged with section 148 and 302

read with section 149 IPC.

On behalf of the prosecution, oral evidence of PW-1 to PW-47

was recorded and a total of 59 documents: Ex. P-1 to Ex. P-59

were exhibited. Thereafter, the accused-Appellants were examined

under Section 313 Cr.P.C. Four witnesses: DW-1 to DW-4 were

examined on behalf of the defense. Defense has also relied on

four documents Ex. D-1 to Ex. D-4.

[2023/RJJP/002622] (4 of 9) [CRLAD-153/2019]

After hearing both the parties, learned trial Court has passed

the judgment convicting and punishing the accused-appellants as

stated hereinabove.

Learned counsels for the appellants contend that prosecution

has completely failed to prove the charges leveled against the

accused-appellant beyond reasonable doubt; they also aver that

learned trial Court has convicted and sentenced the accused-

appellants merely on the basis of surmises and conjunctures; they

also claim that all the independent eye-witnesses produced during

trial on behalf of the prosecution, have turned hostile and have

not supported the prosecution story. Learned counsels for the

appellants argue that PW-13: Gyan Bai, who is the wife of the

deceased, is an interested witness. Learned counsels for the

appellants argue that the statements of the complainant (and sole

eye witness)-Gyan Bai have been full of contradictions. In their

opinion, learned trial Court has erred in believing and relying on

the untrustworthy and contradictory evidence given by sole

interested eye-witness of this case. Learned counsels for the

appellants contend that, in this case, the motorcycle of the

deceased dashed against some buffalo, due to which the deceased

fell down from motorcycle, got injured and unfortunately died.

Contention of the defense is that the above fact has been proved

by almost all the eye witnesses produced on behalf of the

prosecution, but learned trial Court did not consider this fact to be

true. To nullify the prosecution case, the counsel for the appellants

argued that PW-13 Gyan Bai in her evidence has stated that one

of the accused caused an injury on the back of deceased by sharp

[2023/RJJP/002622] (5 of 9) [CRLAD-153/2019]

edged weapon i.e. Kulhari, but in reality no such sharp edged

injury has been found on the back of deceased. They pray that the

whole story of the prosecution is doubtful, therefore, the appeals

be allowed and the appellants be acquitted from the charges for

which they have been convicted.

On the other hand, learned counsel for the respondents

along with learned counsel for the complainant supported the

judgment passed by the trial Court and submitted that there is no

force in the appeal and the same must be dismissed.

The complainant-Gyan Bai in the FIR: exhibit P-20, has

stated that her husband, Panna Lal, was going by motorcycle to

the temple, where the accused persons were already sitting,

armed with sharp edged weapons. She claims that near the

temple, accused persons attacked her husband with sharp edged

weapons and killed him. Contrary to this, in the complaint made

by Gyan Bai, exhibit D-2, which was made to Judicial Magistrate,

Khanpur, she has stated that when her husband left the house on

motorcycle, accused Hukam Chand, armed with Gandasi, followed

the deceased, on seeing this, under apprehension, the

complainant also followed Hukum Chand. In her complaint she

further states that when she reached the temple, she saw that her

husband Panna Lal was surrounded by the accused persons and all

were causing injuries with sharp edged weapons to Panna Lal.

Upon the perusal of the two documents Ex. P-20 and Ex. D-

2, it is quite evident that there are inconsistencies in the two

versions of events which lead to the initiation of the incident. The

[2023/RJJP/002622] (6 of 9) [CRLAD-153/2019]

author of both these documents is the same complainant Gyan

Bai.

In her Court statement, PW-13: Gyan Bai has stated that

accused Hukam Chand inflicted injury on the back of her husband

by Gandasi, but as per the postmortem report exhibit P-41, no

injury with sharp edged weapon has been found on the back of

the deceased.

The incident of this case is said to have taken place near the

temple situated in the village. As per the site plan:exhibit P-15,

the place of occurrence is a densely populated area surrounded by

many houses. The time of occurrence, is about 6.30 a.m., but no

independent witness has supported the prosecution story. It is

noteworthy that in the FIR:exhibit P-20, the complainant herself

has stated that the occurrence was seen by the residents of the

locality.

Apart from PW-13 Gyan Bai, two witnesses PW-18 Urmila Bai

and PW-39 Madi Bai have been produced by the prosecution. PW-

18 Urmila Bai is wife of younger brother of the deceased and PW-

39 Madi Bai is mother of the deceased therefore, these two

witnesses are also interested witnesses being the near relatives of

the deceased. Though PW-18 in her examination-in-chief has

stated that accused persons have killed the deceased but in her

cross-examination she has admitted that she did not witness

anyone committing the offence. Likewise, PW-39: Madi Bai,

mother of the deceased has stated in her examination-in-chief

that when she reached at the place of incident, she saw accused

persons running away from the place of occurrence after the

[2023/RJJP/002622] (7 of 9) [CRLAD-153/2019]

incident. In her cross-examination she has admitted that her

vision and the power of hearing has been impaired for the past ten

to twelve years. She also accepts that she has problems in

walking too. The houses of these two witnesses have also not

been shown in the site plan. Which goes on to show that their

houses are not in the vicinity of the place of occurrence. This

shows that naturally, they could not be eye-witnesses of the

incident and certainly could not reach the place of occurrence soon

after the alleged incident, so as to see the so called accused

persons running away from the place of occurrence.

The prosecution has examined many villagers as eye-

witnesses but none of them has supported the prosecution version

and all of them have turned hostile. Most of the witnesses have

stated that the deceased, Panna Lal was going on motorcycle near

temple, he dashed against a buffalo and fell down on the road, on

which pieces of broken glass were lying, by which the injuries

were caused to the deceased. Therefore, it is clear that the

independent witnesses produced by the prosecution have not

supported the prosecution version.

Factum of enmity has been admitted by the complainant in

this case which has been specifically mentioned in exhibit P-20 as

well as exhibit D-2. In both these documents, the complainant has

specifically mentioned that there is dispute of land between the

accused persons and the deceased. This fact has also been

admitted by the complainant Gyan Bai when she was examined as

PW-13 in this case. It is also an admitted fact that accused

[2023/RJJP/002622] (8 of 9) [CRLAD-153/2019]

persons and the complainant party belong to the same family

having some property dispute.

In the exhibit P-20 (FIR) no eye witness has been named but

in the exhibit D-2 (complaint), the complainant: Gyan Bai has

named: Chittarlal, Mattu harijan, Santra bai and Urmila Bai as eye

witness. Chittarlal, Mattu harijan and Santra bai have not been

made the eye-witness in this case and Urmila Bai is PW-18 who is

wife of brother of the deceased, thus an interested witness.

Admittedly, she has also not seen the incident.

During investigation a blood stained kulhadi is said to have

been recovered from the possession of accused Kanhaiya Lal

through seizure memo Ex.P.-30 the Kulhadi was sent to FSL for

examination, where human blood of inconclusive group was found

on the kulhadi so recovered. In Ex.P.-30 the Kulhadi has been

recovered from an open place which is accessible to anyone,

witnesses of this recovery PW-34 Kailash and PW-41 Dev Karan

who are Police Constables have also admitted in their statements

that the place from where the Kulhadi was recovered is open place

and accessible to any person. Therefore the said recovery is also

of no avail to the prosecution.

From the above discussion, it is clear that both the parties,

who belong to the same family, have enmities due to dispute of

land. Although, the alleged incident occurred at a public place,

surrounded by so many houses, yet, no independent witness has

supported the prosecution story. PW-13: complainant Gyan Bai, is

an interested witness, her testimony has not been corroborated by

any independent evidence. The prosecution story put forth by the

[2023/RJJP/002622] (9 of 9) [CRLAD-153/2019]

complainant (as discussed herein above) is self-contradictory,

which is evident by perusing Ex. P-20 and Ex. D-2. All these

discrepancies make the whole prosecution story doubtful.

Therefore, in the opinion of this Court, the prosecution has

failed to prove the charges levelled against the accused persons

beyond the shadows of reasonable doubt and both these appeals

deserve to be allowed. The judgment and order dated 28.03.2019

is set aside and the appellants are acquitted of the charges leveled

against them. Appellant namely Kanhaiya Lal is in jail, he be set at

liberty forthwith, if not required in any other case. Bail bonds of

the other appellants are cancelled.

The appellants are directed to furnish a personal bond of Rs.

Rs.50,000/- (Rupees Fifty thousand only) and one surety in the

like amount in accordance with section 437A Cr.P.C., before the

trial Court within a period of two weeks from the date of release to

the effect that in the event of filing of Special leave petition

against this judgment or on grant of leave, the appellant on

receipt of notice thereof, shall appear before the Hon'ble Apex

court. The bail bonds will remain effective for a period of 6

months.

                                   (ASHUTOSH KUMAR),J                                          (PANKAJ BHANDARI),J

                                   AARZOO ARORA /19-20









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