SBCr.RP NO.1050/04. SBCr.RP NO. 436/04.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

<u>O R D E R</u>

1. S.B. CRIMINAL REVISION PETITION NO.1050/2004.

Indradutt Pandey Vs. Krishan Dutt & Ors.

2. S.B. CRIMINAL REVISION PETITION NO.436/2004.

Krishan Dutt Vs. State of Rajasthan & Ors.

Date of Order :

17/3/2008.

HON'BLE MR.JUSTICE MOHAMMAD RAFIQ

Shri H.K. Sharma for complainant-petitioner. Shri Amit Puri and Shri N.C. Goyal for the accused-respondents. (In SB Cr.Rev.Pet.No.1050/04).

Shri Suresh Goyal for complainant-petitioner. Shri H.K. Sharma for the accused-respondents. (In SB Cr.Rev.Pet.No.436/04).

BY THE COURT:-

Heard learned counsel for the parties.

2. These two revision petitions have been preferred by the complainant against two judgments both dated 9/3/2004 by which learned Additional District Judge (Fast Track) No.3, Bharatpur camp at Bayana acquitted the accused persons from both sides cross-cases. S.B. Criminal Revision Petition in No.1050/2004 filed has been by complainantpetitioner Indradutt Pandey against the judgment by which five accused respondents namely; Krishan Dutt, Govind, Sohan Lal, Brijesh and Smt.Rampati were acquitted of the charges under Sections 147, 323, 323/149, 325 and 325/149 IPC.

3. S.B. Criminal Revision Petition No.436/2004 has been filed by complainant-petitioner Krishan Dutt against acquittal of accused-respondents Chandra Bhushan, Sunildutt and Anil Kumar for offence under Sections 307/149, 324/149, 325/149, 323, 148 & 447 IPC. Cross cases were filed by both the parties against each other in regard to same incident which took place on 14/11/1993. Both the revision petitions were ordered to be clubbed together vide order of this Court dated 19/11/2007. Since they were heard together, they are being disposed of by this common judgment.

4. Shri H.K. Sharma, learned counsel for the petitioner in S.B. Criminal Revision Petition No.1050/2004 argued that learned trial court committed a serious illegality in acquitting the accused respondents without correctly appreciating the evidence. The injuries sustained by injured Chandra Bhushan have been proved by the doctor and also by the witnesses. Even if the eye-witnesses have turned hostile, their evidence cannot be completely discarded and besides, evidence produced by other eye-witnesses should have been taken into consideration. Learned trial court however, misread the evidence.

5. Shri Amit Puri and Shri N.C. Goyal, learned counsel appearing for the accused-respondents have opposed the revision petition and argued that the learned trial court has correctly appreciated the evidence. Even though, fracture of nose of injured Chandra Bhushan was proved but it was not proved by any reliable evidence as to who caused that injury. It was also proved by the evidence of Dr.D.P. Sharma that there has been fracture of 6th, 7th, 8th, 9th and 10th ribs. Sole eye-witness PW-2 Ramcharan has not supported the case of the prosecution. Another injured witness Charanlal was not examined therefore, the learned trial court has rightly drawn adverse inference against such production. It was argued that the complainant could not claim possession of the disputed land because they had sold the land. In fact, accused-respondent Krishan Dutt received 16 injuries and, therefore, he could not be taken as aggressor. The evidence has come on record that some of the family members of the both the sides had pelted stones on each other and it was in that process that any stone might have hit injured Chandra Bhushan.

6. Having heard learned counsel for the petitioner and the accused-respondents and perused the material on record, I find that the learned trial court has discussed the evidence of all the prosecution witnesses and other evidence in great details. The learned trial court found that the independent eye-witnesses have turned hostile and the prosecution has withheld other injured eyewitnesses. Learned trial court held that accused respondent Krishna Dutt himself has sustained 16 injuries out of which, 5 injuries are fractures of his five different ribs. Learned trial court found that PW-3 Indradutt Pandey, the complainantpetitioner has stated that accused respondent Smt.Rampati inflicted lathi blow on his nose whereas PW-5 Chandra Bhushan who is inured has attributed this injury to two persons namely Brijesh and Smt.Rampati. There was however only one injury. Learned trial court also found that in the incident, family members of both the sides have pelted stones on each other and they have not been made accused. PW-3 Indradutt Pandey in his cross examination stated that when he reached the site of incident, accused-respondents had already broken the kaccha boundary (doll of 5x5 feet) and thereafter they were stopped. Learned trial court therefore did not believe his version that they were refrained from demolishing the boundary and on that account, the quarrel took place was not believed by the trial court. The other simple injuries sustained by other three injured namely, Indradutt Pandey, Chandra Bhushan and Charanlal are all by blunt weapon and simple injury of nose was not proved to have been attributed to any specific accused. Learned trial court in substance found that the evidence of prosecution witnesses suffers from contradictions and did not prove the offence alleged against the accused-respondents beyond reasonable doubt. Accused-respondents were therefore extended the benefit of doubt and were acquitted of the charges.

7. I do not find any error in the judgment passed by the learned trial court. SB Criminal Revision Petition No.1050/2004 is therefore dismissed.

8. Shri Suresh Goyal, learned counsel for the complainant-petitioner in SB Criminal Revision Petition No.436/2004 has argued that learned trial court erred in law in acquitting the accusedrespondents. Even though it was proved from evidence of both the cases that incident had taken place in agriculture field belonging to petitioner Krishna Dutt because family members of accused respondents were aggressors. It was argued that learned trial court erred in law in disbelieving the evidence of the prosecution and has given undue importance to the minor contradictions in the statements of the witnesses. Learned trial court has wrongly held that the witnesses were exaggerating their version because they were related to the injured. It was argued that presence of the prosecution witnesses on the scene of occurrence was admitted by the accused respondents in the FIR lodged at their instance against the complainant in the present case. There could be therefore no doubt for their being eyewitnesses. Learned trial court wrongly held that material evidence was not corroborated by the medical evidence. In his cross examination of the injuries on the person of PW-1 Kumari Shashi by the doctor could not be fatal to the case of prosecution because the injuries were superficial from one visual examination. Similarly, Govind Pandey, PW-2 though also sustained injuries but there was no occasion for his medical examination. It was not necessary for the prosecution to explain injury on the person of every witness. The accused respondents had the common intention to cause murder of injured Krishna Dutt therefore, they are liable to be convicted under Section 307/149 IPC.

9. Learned counsel for the accused respondents has opposed the revision petition and argued that the learned trial court has given cogent and valid reason for not believing the evidence of the prosecution. Learned trial court found that witnesses were making exaggerated statements of causing injuries even of witnesses PW-1 Kumari Shashi and PW-2 Govind Pandey who were not medically examined. It was argued that the mere proof of the injury sustained by the injured including Krishna Dutt by itself does not prove case of the respondents. It has been proved beyond all reasonable doubt that respondents caused such injuries.

10. Having heard learned counsel for the parties and perused the impugned judgment and also the material on record, I find that the learned trial court noticed a definite trend of exaggerations and over implications on the part of the prosecution witnesses. PW-1 Kumari Shashi stated that accused respondents also caused simple blows on her back but at the same time, she stated that she did not offer herself for medical examination. PW-2 Govind Pandey has also stated that he too was subjected to beating. But, why he was not medically examined is not clear. Learned trial court found that the statement of PW-8 Mukesh suffered from contradictions. It is also stated that by the time, PW-1 Kumari Shashi arrived at the scene of occurrence, incident of beating was already over. PW-4 Sohanlal also did not support the prosecution case and hence, he was declared hostile. Learned trial court found that both the parties were related to each other and in fact had the common ancestors. The prosecution witnesses did not explain as to the injuries sustained by injured on the side of the complainant Charanlal, Chandra Bhushan and Indra Dutt. In the FIR lodged in cross case, an altogether different story was narrated by PW-12 Sohanlal. It was not consistent with the statements of the prosecution witnesses of this case. One of the prosecution witnesses injured Hari Charan was not examined during trial. PW-8 Mukesh, uncle (phupha of injured Kumari Shashi) has also shown his presence on the scene of occurrence by stating that he having sold the milk, was coming back to his village. He was merely a chance of witness whose statement did not inspire confidence. Learned trial court therefore found in the face of this that the alleged offences against accused respondents were not proved beyond reasonable doubt and thus benefit of doubt was extended to the accused-respondents. Learned trial court has analyzed the evidence straightway and has passed a detailed and comprehensive judgment. In my view, the trial court did not commit any error of law in acquitting the accused respondents by giving them the benefit of doubt.

11. I therefore do not find any merit in SB Criminal Revision Petition No.436/2004 as well.

In the result, both the revision petitions are dismissed.

(MOHAMMAD RAFIQ), J.

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