State Of Rajasthan vs Jagdish And Ors
2023 Latest Caselaw 5220 Raj/2

[2023:RJ-JP:23658-DB]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR


                     D.B. Criminal Appeal No. 92/1999

 State Of Rajasthan
                                                                        ----Appellant
                                         Versus
 1. Jagdish son of Harjiram, resident of village Sunari, PS Rajgarh,

 District-Alwar (since died)

 2. Kishorilal son of Hargiram, resident of village Sunari, PS

 Rajgarh, District-Alwar,

 3. Danaram son of Shri Narain, resident of village Sunari, PS

 Rajgarh, District-Alwar,

 4. Giriraj son of Shri Narain, resident of village Sunari, PS

 Rajgarh, District-Alwar (since died)

 5. Dholya son of Kishorilal Meena, resident of village Sunari, PS

 Rajgarh, District-Alwar

 6. Ramcharan son of Giriraj Prasad Meena, resident of village

 Sunari, PS Rajgarh, District-Alwar
                                                                     ----Respondents

For Appellant(s) : Mr. Javed Choudhary, Addl.G.A. For Respondent(s) : Mr. Harendra Singh Sinsinwar with Mr. Jaswant Singh Rathore Ms. Rajesh Kandwal

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL

Judgment

RESERVED ON :: 14/09/2023 PRONOUNCED ON :: 22/09/2023

(Per - Hon'ble Pankaj Bhandari, J.)

[2023:RJ-JP:23658-DB] (2 of 9) [CRLA-92/1999]

1. The appellant - State has preferred the instant appeal

aggrieved by the judgment of conviction and order of sentence

dated 16.10.1998 passed by the Additional District & Sessions

Judge, Rajgarh, Alwar, whereby the accused respondents- Jagdish

& Ramcharan have been acquitted for the offence under Sections

302, 447, 148, 147 of the Indian Penal Code (hereinafter referred

to as "IPC") and accused respondents - Kishorilal, Danaram,

Giriraj and Dholya have been acquitted for the offence under

Sections 147, 148, 447, 302/149 of IPC.

2. Succinctly stated the facts of the case are that on

30.07.1993 at about 12:15 am, complainant-Rang Lal (PW-4)

lodged a written report (Exhibit-P1) at Police Station, Rajgarh,

District Alwar. On the said report, the police registered FIR

No.216/1993 on 31.07.1993 (Exhibit-P19). It was mentioned in

the written report that younger brother of the complainant -

Moharu Lal was a School Teacher. At about 1:30 pm on

30.07.1993, he was returning from the school, son of younger

brother - Harkesh came to his farm and told him that Jagdish,

Ramcharan, Kishori, Dholya, Danaram and Giriraj were beating his

father. He also mentioned that Jagdish had given a blow of pharsi

on the head of his father and others were beating with lathis. It

was further mentioned in the report that there was some dispute

with regard to the right of passage. Jagdish denied access to

Moharu Lal, on which, Moharu Lal said that this passage was very

old and being used by the villagers, on which, the dispute started.

The police, after due investigation, filed charge-sheet against

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Jagdish, Kishorilal, Danaram, Giriraj and Dholya for offence under

Sections 147, 148, 302, 447, 149 of IPC. After hearing the charge

arguments, charges were framed against the accused

respondents. At the stage of prosecution evidence, after

statements of 8 witnesses were recorded, an application was filed

by the learned Public Prosecutor under Section 319 Cr.P.C. for

impleading Ramcharan as an accused. The said application was

dismissed by the learned Trial Court, however, in the revision, the

High Court directed to proceed against accused Ramcharan.

Accused - Ramcharan surrendered before the Court on

28.02.1998. Witnesses were re-examined. As many as 22

witnesses were examined and 30 documents were exhibited on

behalf of the prosecution. The explanation of the accused-

respondents was recorded under Section 313 Cr.P.C. wherein they

denied the allegations and stated that they have been falsely

implicated. In defence, 1 witness was examined and 6 documents

were exhibited. The learned Trial Court after hearing the

arguments from both the sides, has acquitted all the accused-

respondents from all the charges.

3. During the pendency of the appeal, accused respondent No.1

- Jagdish and respondent No.4 - Giriraj had expired and

therefore, the appeal was abated against respondent Nos.1 and 4

- Jagdish and Giriraj and same now survives only against accused

respondent Nos.2, 3, 5 & 6.

4. It is contended by the learned Additional Government

Advocate that the learned Trial Court has erred in disbelieving the

[2023:RJ-JP:23658-DB] (4 of 9) [CRLA-92/1999]

statement of eye-witnesses - Harkesh (PW-1), Brahma Devi (PW-

2), Pooran (PW-6) and Dev Karan (PW-7). It is also contended

that Bhoti (PW-3), wife of the deceased, was also an eye-witness.

Their testimony is trustworthy and the same matches with the

medical evidence. It is further contended that the learned Trial

Court has erred in coming to the conclusion that there is a delay in

lodging the FIR. It is argued that the police station was far away

from the village and the place where the incident took place. The

Court also did not consider the fact that the complainant had

informed the police via mobile phone.

5. It is contended that the learned Trial Court has not placed

reliance on the FSL Report wherein, human blood was said to be

detected on the pharsi as well as on the clothes of the deceased.

It is also contended that the Court below has not considered the

evidence of Dr. K.M. Gupta (PW-21), who conducted the

postmortem of the deceased and who stated that the injury

caused to the deceased could be caused by pharsi and thus, he

prayed to allow the present appeal.

6. On the other hand, learned counsel appearing for the

accused respondents has supported the impugned judgment and

order dated 16.10.1998 passed by the learned Trial Court. They

have argued that the witnesses are not reliable witnesses. They

have given different versions before the Court and hence, they are

not trustworthy witnesses.

[2023:RJ-JP:23658-DB] (5 of 9) [CRLA-92/1999]

7. We have considered the contentions raised by counsel for the

parties and have carefully perused the evidence available on

record.

8. Pooran (PW-6) and Dev Karan (PW-7), who are residents of

the village, have deposed before the Court that deceased -

Moharu Lal wanted to take his cattle through the boundary of

Jagdish, on which, Jagdish refused and the dispute started. As per

these witnesses, Jagdish, Kishorilal, Dholya, Moti and 4 other

women were present. Pooran (PW-6) has stated that when Moharu

fell down, he ran from the place of occurrence. In the cross-

examination, this witness has admitted that in Exhibit-D3, portion

C to D and portion A to B were not given by him. The fact that

Jagdish gave a blow on the head of Moharu is also not there in

Exhibit-D3, but as per this witness, he informed the police about

the same. The statement of this witness is a complete

improvement over the statement given by him to the police

(Exhibit-D3). In Exhibit-D3, in portion C to D, this witness has

mentioned that some altercation took place between Jagdish and

deceased and thereafter, this witness and his brother went to their

farm. In the statement, this witness has mentioned that at 3:30

pm, they returned from the farm and found Moharu lying injured

in his field. Dev Karan (PW-7) has also stated that Jagdish was

stopping the deceased from passing through his passage, on

which, the dispute took place. In the cross-examination, this

witness has admitted that in Exhibit-D4, portion A to B and portion

C to D were not given by him. In Exhibit-D4, in portion C to D, this

witness has mentioned that a dispute took place, thereafter, he

[2023:RJ-JP:23658-DB] (6 of 9) [CRLA-92/1999]

along with his brother Pooran (PW-6) went to their field and when

they returned at 3:30 pm, they found Moharu lying injured in the

field. This witness has admitted that he told the police that at

around 2:30 pm, Moharu, his son Harkesh (PW-1) and his

daughter-Brahma Devi (PW-2) went to their field with their

buffaloes.

9. On careful scrutiny of this evidence, it is clear that both

these witnesses initially informed the police that they only heard

the deceased fighting with Jagdish with regard to right of passage

in the field. They have clearly mentioned in their statements that

they left the place and when they returned at 3:30 pm, they found

Moharu lying injured. Thus, these two witnesses cannot be

considered to be eye-witnesses.

10. The other witnesses in this case are Harkesh (PW-1), son of

deceased; Brahma Devi (PW-2) daughter of deceased and Bhoti

(PW-3) wife of deceased. Harkesh (PW-1), who is a child witness,

has stated that Jagdish gave a blow with pharsi on the back side

of the head of the deceased. Thereafter, all the accused -

Ramcharan, Kishori, Dholya, Giriraj, Dana gave blows with lathis

to the deceased. After Ramcharan was added as an accused,

statement of this witness was again recorded wherein he has

stated that Ramcharan gave a blow with a pharsi on the head of

his father. He has also stated that Moti also gave blow with pharsi

to his father. This witness specified that his father (deceased) had

sustained a total of 4 blows of pharsi on his head, out of which, 2

were given by Ramcharan. When the earlier statement was shown

[2023:RJ-JP:23658-DB] (7 of 9) [CRLA-92/1999]

to the witness, the witness stated that in his earlier court

statement also, he had mentioned that Ramcharan had given a

pharsi blow to his father. Brahma Devi (PW-2) in her earlier

statement before the Court mentioned that Jagdish gave a pharsi

blow to her father on the back of his head and thereafter, all the

accused - Ramcharan, Kishori, Dholya, Giriraj, Dana gave blows

with lathis to the deceased. This witness was again examined and

in her statement, she has stated that Ramcharan gave a blow with

pharsi on the head of the deceased and another blow on his

shoulder and thereafter, Moti also gave a blow with pharsi and

other accused gave blows with lathis and pharsis. In the cross-

examination, this witness has denied the portion given in Exhibit-

D6, wherein it was mentioned that Jagdish gave pharsi blow on

the head of the deceased. She has clearly stated that Ramcharan

gave a blow of pharsi on the shoulder and head of the deceased.

She did not give any explanation with regard to her earlier

statement given before the Court in which she has mentioned that

Jagdish had given a blow on the head of the deceased. Bhoti (PW-

3) has admitted in her cross-examination that she did not went

with her husband and children to graze the buffaloes. This witness

has exaggerated her version and stated that each accused gave

100-100 lathi blows to the deceased, however, in re-examination,

she has mentioned that she was not in her senses and she did not

show her injuries to the police.

11. As far as testimony of these 3 witnesses are concerned,

Harkesh (PW-1) in his initial court statement mentioned that

Jagdish gave a blow with pharsi on the head of the deceased.

[2023:RJ-JP:23658-DB] (8 of 9) [CRLA-92/1999]

Similar was the statement of Brahma Devi (PW-2). When both

these witnesses were re-examined after Ramcharan was added as

an accused, they mentioned that Ramcharan gave blow with

pharsi on the head of the deceased and they did not mention that

the blow was caused by Jagdish. They also deposed that Moti also

gave a blow with pharsi to their father-deceased. Moti is not an

accused in this case and these witnesses have on oath testified

before the Court and in their initial statements, they have

assigned the head injury to Jagdish, however, in their subsequent

statements, they have not levelled any allegation against Jagdish,

but have assigned the head injury to Ramcharan and Moti.

Witnesses, who depose on oath before the Court and give different

versions on different occasions before the Court, are not

trustworthy and reliable witnesses. None of these witnesses can

be considered to be eye-witnesses for the very reason that they

have given different versions before the Court on oath with regard

to the author of the fatal blow. Hence, from the entire evidence, it

can be deduced that Pooran (PW-6) & Dev Karan (PW-7), who are

projected as eye-witnesses and Harkesh (PW-1), Brahma Devi

(PW-2) & Bhoti (PW-3) are not trustworthy and reliable witnesses.

Further, as per the subsequent statements of above 3 witnesses,

Ramcharan inflicted pharsi blow to the deceased whereas no

weapon has been recovered from Ramcharan and the said pharsi

was recovered from Jagdish, against whom, no allegation of

inflicting injury on the deceased has been made.

12. Learned Trial Court has clearly appreciated the evidence and

has not erred in arriving at the finding of accused being not guilty.

[2023:RJ-JP:23658-DB] (9 of 9) [CRLA-92/1999]

From the evidence that have been produced before the Court

below, it is evident that none of the witnesses had witnessed the

incident and the learned Trial Court has thus not committed any

error in acquitting the accused respondents and therefore, we do

not find any force in the present appeal. Thus, the appeal, being

devoid of merits, is, accordingly, dismissed.

                                   (BHUWAN GOYAL),J                                              (PANKAJ BHANDARI),J

                                   SUNIL SOLANKI /PS









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