Rajasthan High Court
Radheyshyam vs Kalulal And Ors on 8 February, 2024
Author: Praveer Bhatnagar
Bench: Praveer Bhatnagar
[2024:RJ-JP:4971] (1 of 9) [CRLR-680/2004]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Revision Petition No. 680/2004
Radheyshyam S/o Parmanand, R/o Village Dhanoda Kalan, Police
Station Sarola Kalan, District Jhalawar.
----Petitioner
Versus
1. Kalulal S/o Prabhulal
2. Jagdish S/o Kishan
3. Deshraj S/o Kishan
4. Amarlal S/o Prabhulal
All R/o Village Dhanoda Kalan, Police Station Sarola Kalan,
District Jhalawar.
5. State of Rajasthan
----Respondents
For Petitioner(s) : Mr. Timan Singh
For Respondent(s) : Mr. Yashwant Kankhadia - PP
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
/02/2024
1. By way of filing present criminal revision petition under
Section 397 read with Section 401 Cr.P.C. the petitioner has
assailed the judgment dated 21.05.2004 passed by learned
Additional Sessions Judge, Fast Track No.3, Jhalawar in Criminal
Case No.111/2003, whereby, the learned trial court acquitted
respondent Kalulal from the offences under Sections 148, 323,
323/149, 324, 324/149, 325, 325/149, 326 & 307 I.P.C. and
respondents Jagdish, Deshraj and Amarlal from the offences under
Sections 148, 323, 323/149, 324, 324/149, 325, 325/149, 326/149
& 307/149 I.P.C.
2. Brief facts of the case are that on 15.03.2003 at about 09:30
PM complainant Radhey Shyam alongwith his brothers Chotulal,
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Hemraj, Mangilal, Ramesh & Bajranglal lodged a report stating
therein that on 14.03.2003 at around 07:00 PM accused Jagdish,
Deshraj & Ramesh in an intoxicated condition had abused the
informant and others; at about 07:00 AM when the informant and
Hemraj were having Tea at Raju Kumar's Tea Stall, Jadish, Deshraj
and Ramesh armed with Sword and Kalu, Balram, Amarlal, &
Parmanand armed with Gandasi and Lathis came there and started
beating us; Kalu inflicted injury by Gandasi on the head and
Deshraj inflicted injury by Lathi on the left hand of Radhey Shyam;
Ramesh inflicted injury by Sword on the head of Hemraj and
accused Deshraj & Jagdish caused injuries by Lathi on the left
hand; when Mangilal, Ramesh & Bajranlal came to rescue the
injured, accused started beating them and caused injuries on their
head, hands, legs and back. On the aforesaid report, an FIR
No.56/2003 was registered and after usual investigation, charge-
sheet was filed against the accused respondents.
3. The learned Sessions Court framed charges against the
accused respondents for the above offences and upon denial of
guilt by them, commenced the trial. During the course of trial, the
prosecution in order to prove the offences, examined as many as
20 witnesses and exhibited 35 documents. The accused, upon
being confronted with the prosecution allegations, in their
statements under Section 313 Cr.P.C., denied the allegations and
claimed to be innocent. Then, after hearing learned counsel for the
parties and upon meticulous appreciation of the evidence, learned
trial court acquitted the accused respondent Kalulal from the
offences under Sections 148, 323, 323/149, 324, 324/149, 325,
325/149, 326 & 307 I.P.C. and respondents Jagdish, Deshraj and
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Amarlal from the offences under Sections 148, 323, 323/149, 324,
324/149, 325, 325/149, 326/149 & 307/149 I.P.C. vide judgment
dated 21.05.2004. Aggrieved by the judgment of acquittal, the
petitioner preferred this revision petition before this court.
4. It is argued by learned counsel for the petitioner that the
learned trial court has failed to appreciate the evidence available
on record and has wrongly acquitted the accused-respondents. It
is argued that the learned trial court has erred in discarding the
testimony of prosecution witnesses on the ground that they were
accused in cross case and some of them were convicted. It is
further argued that the learned trial court without considering the
nature of injuries sustained by the complainant party has
extended the benefit of right to private defence under Sections 96,
97 & 101 I.P.C. to the accused respondents. It is prayed that the
judgment passed by learned court below may be set aside and
revision petition may be allowed.
5. Learned Public Prosecutor supported the judgment passed by
learned court below and opposed the revision petition.
6. Heard learned counsel for the parties and perused the
material available on record.
7. The accused- respondents before the trial court took the
specific plea while recording their statements under Section 313
Cr.P.C. that they have been involved due to enmity and
complainant party assaulted Balram, brother of the respondents
and caused his death. It is also stated in the statement recorded
under Section 313 Cr.P.C that in order to frame the defence in the
murder case the complainant party have falsely implicated the
accused persons.
[2024:RJ-JP:4971] (4 of 9) [CRLR-680/2004]
The eye witnesses of the incident PW-3 Chouthmal, PW-9
Raju @ Rajaram, PW-12 Hariram, PW-13 Tejkaran and PW-18
Bajranglal have been declared hostile and they denied the entire
prosecution story that any such incident happened.
On cross-examination by the learned Additional Public
Prosecutor all the above witnesses have categorically denied the
fact that any such incident occurred before them.
PW-5 Radheyshyam complainant himself in his examination-
in-chief has stated that accused Kalulal, Jagdish, Deshraj and
Amarlal assaulted Hemraj and Magilal. It is also deposed by the
witnesses that accused Kalulal caused injury with Axe to injured
Radheyshyam S/o Parmanand. The witness in his cross
examination has admitted the fact that his brother Hemraj was
prosecuted for murder of Shrawan, who is brother-in-law of
accused Jagdish. He has denied the fact that a day before the
incident altercation took place between him and accused Jagdish,
Deshraj and Ramesh. In his examination-in-chief the witness has
categorically stated that Hemraj caused injury to Deshraj with
Sword and Jagdish hit Hemraj with the aid of Gandasi. In the cross-
examination the witness has stated that the above all facts
causing injury by Sword, Axe and Gandasi were stated before the
police under statement recorded under Section 161 Cr.P.C and on
confronting with statement Ex.-D1, the witness has showed
unawareness about the non mentioning of above facts in his
statement recorded under Section 161 Cr.P.C. He has admitted the
fact that he is in jail in the matter of murder of Balram.
The learned trial court disregarded the testimony of PW-5
Radheyshaym as being interested witness. The learned trial court
[2024:RJ-JP:4971] (5 of 9) [CRLR-680/2004]
was also of the view that witness has exaggerated his version and
tried to improve the prosecution story by specifying the injury
caused to Radheyshyam S/o Parmanand, Hemraj and Mangilal.
Learned trial court also recorded the finding that the statement of
PW-5 Radheyshyam itself is in contradiction to the statement of
PW-8 Hemraj.
PW-8 Hemraj in his examination-in-chief has stated that
accused Deshraj, Ramesh, Jagdish and Kalulal came with Sword,
Sticks, Gandasi etc., and Ramesh hit him with Sword at his head.
He has also deposed that afterwards his brother Radheyshyam
was also beaten by accused Deshraj and Deshraj inflicted head
injury with the aid of Gandasi to Radheyshyam. He has further
stated that accused Jagdish was having Gandasi in his hand and
he assaulted him at his left hand and thereafter Radheyshyam
locked him in his house. In his cross-examination he has admitted
the fact that accused Jagdish's brother-in-law was murdered and
he remained in jail in that case. He has also admitted the fact that
his brother Radheyshyam has been convicted and also remained in
jail in a murder case. He has also admitted the fact that
Radheyshyam is still in custody in the matter of causing death to
accused persons' brother Balram. He has denied the fact that
accused Balram was present at the time of occurrence. He has
also denied the fact that in Ex.-D4 presence of Balram was stated
by him. In cross-examination after reading out the portion A to B of
Ex.-D4, he has categorically denied the fact that Balram was
having Gandasi in his hand. He has also stated that in the
statement recorded before police he stated the fact that accused
Ramesh inflicted injury at his head with the aid of Sword but he
[2024:RJ-JP:4971] (6 of 9) [CRLR-680/2004]
was unaware about the fact that why this fact has not been
mentioned in his statement Ex.-D4. He himself in his cross-
examination had denied the earlier version that Radheyshyam hit
Deshraj with the aid of Gandasi.
The learned trial court disbelieved the testimony of PW-5
Radheyshyam as he himself was an accused in a cross case and
also the interested witnesses. The learned trial court has also
arrived to the conclusion that there is contradiction in the
statements of PW-5 Radheyshyam and PW-8 Hemraj.
PW-10 Radheyshyam S/o Parmanand one of the injured, in his
examination-in-chief has stated that accused Kalulal hit with the
aid of Gandasi at his head. Deshraj inflicted injury with Stick at his
left arm. He has further deposed that accused Ramesh inflicted
injury with the aid of Swaord at Hemraj. He has further deposed
that Jagdish and Deshraj were having Sticks with them. He also
stated that accused Raju, Chouthmal, Balu, Dalu, Khatana were
there and they also tried to intervene. He has also stated that
witnesses Ramesh and Bajranglal were also beaten. In his cross-
examination he has stated that he is unaware about the fact that
whether Balram is alive or dead. He has admitted the fact that
Radheyshyam brother of Hemraj, Mangilal, Ramesh and
Banjranglal are in jail but is unaware about the reason for their
custody. He further stated that at the time of incident 50 persons
were present. In his cross examination, he stated that in FIR Ex.-
P7, the fact is wrongly mentioned that Jagdish and Deshraj were
having Sword with them. He has also admitted that in FIR Ex.-P7
and statement Ex.-D5 name of Dalu is not mentioned.
[2024:RJ-JP:4971] (7 of 9) [CRLR-680/2004]
The learned trial court disbelieved the testimony of the said
witness on the ground that he evaded the answer despite
knowingly the fact that Balram has been murdered. He has also
exaggerated his version with regard to presence of witnesses Balu,
Dalu and Khatana at place of occurrence. In the FIR Ex.-P7 he has
denied the story that Jagdish and Deshraj were having Sword with
them.
The learned trial court also recorded the fact that this witness
is also interested witness as his name appeared in the cross case
lodged by the accused persons and later on police has dropped his
name. The involvement of accused Ramesh in the alleged incident
was not found and police did not file any charge-sheet against
accused Ramesh. All the material witnesses viz. PW-5
Radheyshyam, PW-8 Hemraj and PW-10 Radheyshyam S/o
Parnamanand have stated different stories and learned trial court
has rightly disbelieved their testimony.
The testimony of PW-6 Mangilal has also been disbelieved as
there were contradictions in the evidence of PW-6 from the
evidence of PW-5 Radheyshyam, PW-8 Hemraj and PW-10
Radheyshyam S/o Parmanand. In his examination-in-chief he has
stated that accused persons were having Sword, Gandasi and
Sticks with them and Deshraj hit at him with the aid of Sword and
Jagdish inflicted injury with the help of Gandasi to injured Hemraj.
He has also stated that accused Kalu inflicted injury at the head of
Radheyshyam with the aid of Gandasi. He has also stated that
accused Parmanand and Amarlal caused injuries with the help of
Stick at his hand. In his cross-examination he has admitted the
fact that Radheyshyam and Hemraj are in jail in the matter of
[2024:RJ-JP:4971] (8 of 9) [CRLR-680/2004]
Shrawan's murder. He has also stated that during the incident they
all took shelter in the hotel of Raju Kumhar. He has denied that
Ramesh and Bajrang were present at the place of occurrence. He
has also denied the fact that in his police statement he did not
mention the fact that Deshraj was having Sword, Kalu was having
Gandasi and other accused were having Sticks with them. The
learned trial court also disbelieved the testimony of PW-6 Mangilal
as his evidence is in contradiction to eye witnesses PW-5
Radheyshyam, PW-8 Hemraj & PW-10 Radheyshyam S/o
Parmanand. The learned trial court also specifically arrived to the
conclusion that the injuries caused to PW-10 Radheyshyam S/o
Parmanand were though found to be dangerous in nature but
prosecution failed to establish the fact that the injuries caused to
Radheyshyam were inflicted by a particular accused. PW-10
Radheyshyam has attributed the injury caused to him to accused
Kalulal whereas in contradiction to the statement of PW-10
Radheyshyam and PW-8 Hemraj has attributed this injury to
accused Hemraj. The learned trial court also recorded the finding
that PW-5 Radheyshyam & PW-6 Mangilal are accused of cross
case and were found involved in the murder case of deceased
Balram.
The prosecution also failed to examine the investigating
officer. The learned trial court also recorded the finding that non
examination of Chotulal is also fatal to the prosecution. The
learned trial court also recorded the specific finding that the trial
of the cross case Sessions being Case No.113/2003 has also been
conducted with this case and after examining the witnesses in the
Sessions Case it found that complainant party of this case was
[2024:RJ-JP:4971] (9 of 9) [CRLR-680/2004]
aggressor to the incident. The learned trial court also recorded
that injuries caused to the complainant party may be a result of
right to private defence available to the accused party. Learned
trial court also recorded the finding that non-examination of
Chotulal @ Parmanand who is another injured is also fatal to the
prosecution.
8. In view of the above, I do not find any perversity in the
findings arrived at by the learned trial court in acquitting the
accused under aforesaid offences.
9. Accordingly the instant Criminal Revision Petition is hereby
disallowed.
(PRAVEER BHATNAGAR),J
DHARMENDRA RAKHECHA
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