Magniram And Anr vs State (2023:Rj-Jd:27723)
2023 Latest Caselaw 6735 Raj

[2023:RJ-JD:27723]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 829/2002

1. Magniram S/o Ganesh B/c, Gadari, R/o Arani, P.S. Rashmi, District Chittorgarh (Raj.)

2. Radheyshyam S/o Swai Ram, b/c Jat, R/o Arani, P.S. Rashmi, District Chittorgarh (Raj.)

----Petitioner Versus State

----Respondent

For Petitioner(s) : Mr. Manish Pitaliya For Respondent(s) : Mr. Mahipal Bishnoi, PP assisted by Mr. C.P. Marwan.

HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI

Order

02/09/2023 Reportable

1. The petitioners convicted by Court of Judicial Magistrate

(First Class), Rashmi, District Chittorgarh in Criminal Regular Case

No.36 of 1998 vide judgment dated 07.09.2001 and his conviction

and sentence having been confirmed vide judgment dated

10.09.2002 by the appellate court of Additional Sessions Judge

No.1 Chittorgarh in Criminal Appeal No.56 of 2002 punishable

under Section 341, 323 read with 34 and 394 read with 34 of the

Indian Penal Code, 1860 (for short "the IPC") has filed the present

revision petition before this Court.

2. The facts as available on record are that a First Information

Report (ExP-1) dated 10.01.1998 was registered by Complainant

Ogar Singh (PW-1) at Police Station Rashmi, District Chittorgarh to

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the effect that on 08.01.1998, while returning after purchasing 2

Kgs. of fishes from Hafiz Khan at Arani Pond, complainant and his

companion Bhagwat Singh were intercepted by Ganesh, Magniram

and Radheyshyam near wall of the pond. They demanded the

fishes, but complainant refused to hand it over. On this, Ganesh

Jat snatched the fishes from complainant, all the three accused

beat the complainant and his friend Bhagwat Singh with bamboo

sticks. Rs.5,000/- were also snatched from the pocket of pant of

the complainant. Ganesh Jat also had a knife. Due to beating,

both of them received many injuries. Hafiz Khan and Banshilal

intervened and rescued them. Thereafter both of them returned to

their village, but due to fever caused by beating they could not

lodge FIR on time.

3. Charge-sheet was filed against all the three accused after

completion of the investigation. Accused Ganesh died during the

trial and accordingly the proceedings qua him stand abated.

4. The prosecution produced as many as 12 witnesses in

support of the case. After trial, the trial court convicted Magniram

and Radheyshyam for offence punishable under Section 341, 323

read with 34 and 394 read with 34 of the IPC and sentenced them

to undergo imprisonment for a period of 7 days, 1 month and 6

month respectively for said offences along with fine and default

clause.

5. In appeal, conviction and sentence awarded by the trial court

was upheld.

6. Learned counsel for the petitioners has raised the argument

that the story built by the prosecution on the basis of the

complaint is concocted. In fact no such incident had taken place.

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It is alleged that there are serious defects and anomalies in

deposition of complainant Ogar Singh (PW-1) and both

independent eye-witnesses Banshilal S/o Shivji (PW-8) and Hafiz

Khan (PW-10), who did not support the prosecution version.

7. Witness Bherulal (PW-6) and Bhagwanlal (PW-7) in their

statements recorded in the court denied recovery of alleged looted

cash amount of offence from Magniram in their presence. They

were declared hostile. Similar was position in statements of Ramlal

(PW-) and Pappu (PW-12), who also did not support prosecution

version. They were also declared hostile and cross-examined by

the prosecution.

8. As per the prosecution case, accused Ganesh Jat was

carrying a knife, however, there was nothing either in the

complaint or in the evidence brought on record that the same was

ever used and it has not even been recovered during the trial.

Further, recovery of Rs.2,000/- at the instance of accused

Magniram was also seriously doubtful as both witnesses of said

recovery have been declared hostile and no investigation was

carried out recording the remaining looted cash amount.

9. It is further argued that both the courts below have failed to

appreciate evidence in proper perspective and have wrongly

recorded conviction. Hence, he prayed to set aside the judgment

of conviction and sentences imposed by the courts below. Lastly, it

is prayed that in view of legal infirmities in judgment of the trial

court as also the appellate court, the petitioners are entitled to be

acquitted, he contended.

10. On the other hand, learned Public Prosecutor submitted that

entire prosecution version has been duly supported by the

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witnesses produced. Merely, because some of them were won over

and had to be declared hostile will not demolish case of the

prosecution. There are concurrent finding of facts recorded by the

courts below and it does not call for interference by this Court.

11. Heard learned counsel for the parties and perused the

relevant referred record.

12. The prosecution case rests on testimony of complainant Ogar

Singh (PW-1), Bhagwat Singh (PW-2) a friend of complainant who

was accompanying him, eye-witnesses Bhanshilal S/o Shivji (PW-

8) and Hafiz Khan (PW-10), recovery witnesses of looted cash

amount Bherulal (PW-6) and Bhagwanlal (PW-7) as well as

medical evidence.

13. The complainant Ogar Singh, testified in court corroborating

the facts outlined in the First Information Report as well as

statement given under Section 161 of Criminal Procedure Code.

Bhagwat Singh who was with the complainant at the time of

occurrence while appearing as (PW-2) deposed in sync with

complainant. Both of them were injured as well as victims of the

incident.

14. This incident was said to be occurred near wall of Arani Pond.

The two independent witnesses namely Hafiz Khan (PW-10) and

Banshilal S/o Shivji (PW-8), both being fishing contractors and fish

sellers at Arani Pond were natural witnesses of the occurrence.

15. According to the complainant and the prosecution, these two

independent eye-witnesses had reached the scene of crime for

help, yet they both did not support the prosecution version and

thus, they were confronted with their previous statement by the

Prosecutor.

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16. Hafiz Khan (PW-10) turned hostile and in his statement, he

stated that he is not aware if there was any incident of assault

with Ogar Singh and Bhagwat Singh; he is not aware that accused

assaulted Ogar Singh and Bhagwat Singh; he is not aware of

Magniram snatching Rs.5,000/- from the pocket of Ogar singh. No

allegations were made against the petitioners by him. Thus,

presence of petitioners at crime site becomes highly doubtful.

17. The other eye-witnesses Banshilal S/o Shivji (PW-8) also

turned hostile. He deposed before the court that he and Hafiz

Khan had a contract for fishing at Arani Pond; both of them were

doing business together; he does not know Ogar Singh and

Bhagwat Singh. He also stated that he does not recognize accused

Magniram, Ganesh Jat and Radheyshyam. He has clearly denied

statements given under Section 161 of the Criminal Procedure

Code to Police during the investigation. Thus, there are serious

defects and anomalies in the deposition of the complainant and

alleged independent eye-witnesses. Both independent

eye-witnesses did not support the prosecution version.

18. Bherulal (PW-6) and Bhagwanlal (PW-7) in their statements

recorded in the court, denied recovery of any cash amount of

offence from Magniram in their presence. They were also declared

hostile. Even in his cross-examination, Bherulal deposed that he

did not go to the house of Magniram; his signature was got

obtained by the Police at the bus stand; He does not know how to

read and only knows how to sign. Thus, recovery of alleged looted

cash money was also seriously doubtful.

19. Similar was the position in the statements of both witnesses

of site plan Ramlal (PW-9) and Pappu (PW-12), they also did not

[2023:RJ-JD:27723] (6 of 8) [CRLR-829/2002]

support the prosecution version and have been declared hostile

and cross-examined by the prosecution. Therefore, the

prosecution was completely unsuccessful in proving the crime

scene.

20. As far as the delay in lodging of the FIR is concerned, mere

delay in lodging the FIR is not fatal, if the delay is satisfactorily

explained. The reason given for the delay in filing report in this

case was that complainant had fallen ill with a fever after the

incident. Therefore, he filed the report after recovering. In the

opinion of this Court, said explanation cannot be considered

satisfactory because when the complainant was injured also, he

was bound to have consulted a doctor and at that time he could

also have got treatment for his so called fever. Bhagwat Singh who

was also with the complainant at the time of occurrence, could

also have filed the FIR which he did not do, even though he was

also an injured and a victim of the alleged incident.

21. The First Information Report was lodged belatedly two days

after the incident. Thus, giving sufficient time to weave the story

which did not even show genesis of the occurrence. Therefore,

lodging of complaint with two days delay in this case is fatal to the

case of prosecution as delay is not properly and satisfactorily

explained.

22. As per the version given by the complainant, the case sought

to be made out is under Section 341, 323 read with 34 and 394

read with 34 of the IPC. One of the accused, as per the version of

the complainant, was carrying a knife with him, however there is

nothing on record either in the form of statements of witnesses or

even in medical report that knife was ever used or recovered.

[2023:RJ-JD:27723] (7 of 8) [CRLR-829/2002]

23. It is well settled that trustworthiness of case of prosecution

is to be determined on the basis of material on record and on

appreciation of ocular as well as documentary evidence adduced

by the prosecution. The medical evidence as to the injuries,

though a very useful guiding factor, yet it is not conclusive and

has to be considered along with other cogent evidence. In the

present case, the medical evidence in respect of injuries is not in

consonance with ocular evidence deposed on behalf of

prosecution. I, therefore, find that evidence of Dr. K.P. Khandal

(PW.4) was not in conformity with the oral evidence available on

the record.

24. The statement of complainant Ogar Singh and his friend

Bhagwat Singh are not found credible and trustworthy for want of

corroboration by both the independent eye-witnesses and

recovery of alleged looted cash amount. The ocular testimony of

the witnesses has greater evidentiary value viz a viz medical

evidence. I am of affirmed view that the evidence of Ogar Singh

and Bhagwat Singh is not safe to place reliance upon, therefore

the medical opinion cannot be spelled as a conclusive one.

25. In view of the concealment of genesis of occurrence by

complainant and the fact that FIR was registered belatedly, I am

of the considered opinion that implicit reliance cannot be placed

on complainant as well as Bhagwat Singh and conviction of the

petitioners cannot be based solely on their testimony.

26. All the version of the prosecution namely, seeing the incident

by independent eye-witnesses, recovery of alleged looted cash

amount from possession of Magniram and not proving of scene of

incident, demolish the case of the prosecution.

[2023:RJ-JD:27723] (8 of 8) [CRLR-829/2002]

27. From the aforesaid material on record, presence of the

petitioners at the scene of crime and recovery of cash amount

from Magniram become highly doubtful and guilt of the petitioners

having not been proved beyond reasonable doubt. Thus, granting

benefit of doubt, conviction and sentence cannot be upheld.

Therefore, both the petitioners are entitled to be acquitted of the

offences charged with.

28. In view of this, conviction of both the petitioners cannot be

sustained. As such, I am of the view that it is a fit case, wherein

this Court should interfere into the impugned orders as passed by

the learned trial court as well as learned appellate court.

29. Accordingly, the Revision Petition is allowed while setting

aside both the impugned judgments of conviction and order on

sentence passed by the learned appellate court as well as learned

trial court. Bail bonds submitted by the petitioners stand

cancelled.

30. Revision Petition is disposed of accordingly.

(RAJENDRA PRAKASH SONI),J 1-nitin/-

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