Rajasthan High Court - Jodhpur

State vs Deepak Soni And Ors ... on 18 February, 2025

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  D.B. Criminal Appeal No. 117/2004

State of Rajasthan
                                                                      ----Appellant
                                      Versus
1.    Deepak Soni son of Shri Kundan Singh Soni, resident of 78,
Chhoti Brahmpuri, Udaipur (Raj.)
2.    Durgesh @ Montu son of Shri Shanti Lal Jain, resident of 79,
Yadev Colony, Ambamata, Udaipur (Raj.)
3.     Rajesh @ Raju son of Shri Inder Lal Hada (Teli), resident of
5, Lakhara Chowk, Dhanmanti, Udaipur (Raj.)
4.       Feerojkhan son of Aheshan Khan Musalman, resident of
109, Mahawatwadi, Kikar Gali, Udaipur (Raj.)
                                                                   ----Respondents


For Appellant(s)            :     Mr. C.S. Ojha, Public Prosecutor
For Respondent(s)           :     Mr. Bhagat Dadhich, Advocate



           HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA

Judgment

18/02/2025

This Acquittal Appeal has been filed to challenge the

judgment dated 30th June 2003 passed in Sessions Case No.3 of

2002 (31/2000).

2. By this judgment, Deepak Soni, Durgesh @ Montu, Rajesh @

Raju and Feerojkhan were acquitted of the criminal charges

framed against them under Section 302 read with Section 120B

and Section 449 of the Indian Penal Code.

3. This Acquittal Appeal is premised primarily on the ground

that the testimony of a related witness cannot be discarded and it

was the duty of the trial Judge to carefully examine the evidence

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tendered by the eye-witnesses who clearly spoke about the role

played by Deepak Soni.

4. On the basis of the Fard-Bayan of Subhash Chandra Joshi

given on 19th October 2001, a crime was registered vide FIR

No.230 of 2001. After the investigation, the aforementioned

respondents were sent for trial. In the trial, the prosecution

examined twenty four witnesses out of whom P.W.2 Kailash Joshi,

P.W.3 Kailashchandra Vyas, P.W.4 Smt. Lata, P.W.5

Subhashchandra Joshi, P.W.6 Onkarlal Joshi and P.W.7 Smt.

Vijaylaxmi were the star witnesses for the prosecution.

5. As P.W.14, Dr. Suresh Bhatnagar found the following injuries

on the person of Satish :-

"(1) Incised would 3 x 1 cm. on right side abdomen 2 cm.

below & lat to umbilicus there is corresponding incised would 3 x 1 cm on peritoneum, there is incised wound 3 x .5 cm. on mesentery of intestine, peritoneum cavity is full of blood and blood clot present there is 3 x .5 cm incised would on right left wall of Aorta blood clot present corresponding from part of Aorta.

Note:-Above injury is Antimortem in nature and fresh duration."

6. The prosecution story is that on the evening of 19 th October

2001, the family members of Onkarlal Joshi were watching cricket

match between India and South Africa and they suddenly heard

the cries of Satish. According to the prosecution, P.W.2, P.W.3,

P.W.4, P.W.5, P.W.6 & P.W.7 had seen Deepak Soni assaulting

Satish and fleeing away from the place of occurrence.

7. However, in the trial these witnesses made contradictory

statements and the trial Judge held that they were not the eye-

witnesses. For example, Onkarlal Joshi who is the father of the

deceased Satish stated that someone had assaulted his son with a

knife and his son was taken to the hospital. The trial Judge has

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also recorded that P.W.5 Subhashchandra Joshi made statement in

the police station that three-four persons assaulted Satish and fled

away. The trial Judge has expressed his opinion that till the time

report vide Ex.P4 was given to the police, it was not known to the

prosecution witnesses as to who was the person who had

assaulted Satish. The trial Judge in the impugned judgment

referred to the statement of P.W.7 Smt. Vijaylaxmi and P.W.6

Onkarlal Joshi in the following manner :-

"Regarding the evidence available on record regarding the stabbing of Satish by accused Deepak Soni, Vijay Lakshmi has stated that when she was going to the hospital in the car with Subhash, Satish had told her that Deepak had stabbed him. If this fact was true, then certainly the said fact would have been included in the First Information Report and in the statements of P.W. 5 Subhash. In any case, the said statement is different from the statement given to the police, Exhibit D1. Similarly, P.W. 6 Onkarlal, who is the father of deceased Satish, has stated that Deepak had stabbed his son in the stomach and Satish had shouted and told that Deepak had stabbed him and Deepak had taken out the knife from the stomach and ran away. All the above statements by this witness are found to be of a completely different nature from his statement Exhibit D4 given to the police and the non-inclusion of the above facts in the police statement raises doubts on the veracity of this witness. It is also worth mentioning here that this witness has accepted the fact that he used to plead cases in the Excise Department and has legal knowledge, despite this, this witness did not register any First Information Report and did not give any information about the incident despite the police coming to his house two or three times and this witness accepted in his statements that he has been wearing spectacles for 35 years and at the time of the incident he was not wearing spectacles. It is also worth mentioning here that this witness could not identify the person standing in the court from a distance of 10 feet despite wearing spectacles, in such a situation, identifying accused Deepak without spectacles at night comes under suspicion. P.W.3 Kailash Vyas' statement on this point has been that Satish was stabbed twice and Satish had said that Deepak had stabbed him, but in the police statement of this witness, Exhibit D2, there is no mention of Deepak stabbing him. Among other witnesses, P.W.4 Lata has appeared, she has stated that she saw only 3-4 people running away. Similarly, P.W.2 Kailash Joshi has stated that he saw all the accused running away, this witness has not stated that accused Deepak attacked with a knife. The complainant has accepted the fact that in the past also, 6-7 attacks were made by some unknown persons in

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which Satish was stabbed, due to which the possibility cannot be ruled out that in this incident, the attack could have been made by unknown persons with previous enmity. It is also relevant to write here that if accused Deepak enters with the intention of causing the death of deceased Satish, then he will try to hide his presence, and not on the contrary, the person coming there will call out to the deceased and attract the attention of other people present there. In this case, all the prosecution witnesses have stated that the visitor had called out Satish-Satish, and because the voice was of some known friend of Satish, no one paid attention to the entry of the visitor. The appearance of the visitor has also not been given. The visitor directly entered Satish's room, which also shows that he had complete knowledge of the rooms of this house etc. and Satish's room and the possibility of his frequent visits to that house cannot be ruled out, which makes the fact that the visitor was the accused Deepak Soni doubtful."

8. The trial Judge has also referred to the evidence tendered by

P.W.14 who stated in the Court that the injuries which were found

on the person of the Satish could not have been caused by the

recovered crime weapon.

9. In our opinion, in the aforementioned facts and

circumstances, the trial Judge was cautious enough to examine

the testimony of the prosecution witnesses who were closely

related to Satish. On a scrutiny of the evidence tendered by the

prosecution witnesses in the trial, we find that the trial Judge

applied the correct test and adopted cautious approach to

examine their testimony and rightly came to a conclusion that the

prosecution was unable to establish beyond reasonable doubt who

were the persons who caused injuries to Satish. In this context,

we would indicate the decision in "Masalti v. State of U.P." AIR

(1965) SC 202, wherein Supreme Court observed as under :-

"14. Mr. Sawhney has then argued that where witnesses giving evidence in a murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prone to involve falsely mem- bers of the rival faction out of enmity and partisan feeling. There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are

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partisan or interested, it has to be very careful in weighing such evidence. 51 S.C.-IO Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is prob- able, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

9. In view thereof and after having examined the judgment

under challenge, we do not find any ground to interfere in this

matter and, accordingly, D.B. Criminal Appeal No.117 of 2004 is

dismissed.

(CHANDRA SHEKHAR SHARMA),J (SHREE CHANDRASHEKHAR),J

38-Bharti/-