Rajasthan High Court - Jaipur
State Of Rajasthan vs Babu on 9 January, 1980
Equivalent citations: 1980WLN(UC)12
JUDGMENT K.D. Sharma, J.
1. This is an appeal filed by the State against the judgment of the learned Assistant Sessions Judge, Bharatpur dated 31-1-1972 by which Babu, Karansingh, Harbhan, Charna, Bihal, Shersingh, Bholi and Gyasi accused were acquitted of the charges under Sections 148, 307, 447 and 307 read with Section 149 IPC.
2. The prosecution case against accused persons including Babu respondent was as follows : Bhagwat son of Gordhan Brahmin resident of Helak filed a complaint against Babu and other aforesaid accused persons, under Sections 307 324 and 447 IPC in the court of the Munsif Magistrate Bharatpur. It was alleged in the complaint that Babu Respondent and other seven aforesaid accused persons formed an unlawful assembly with a common object to cust the complaint from his fields comprised in Khasras Nos. 111 and 112 situated in village Jhadoli and in prosecution of the said common object entered the fields of the complainant having armed themselves with lathies and spades. After gaining entry into the fields, the accused persons started constructing a boundary wall. Bhagwat complainant his daughter-in-law and his grand-son Shriram prevented the accused persons from constructing the boundary wall Thereupon, the accused persons pushed aside the complainant and his daughter-in-law and administered a beating to them with slaps and fist blows Shriram also was given a blow on his head with a spade by Babu Respondent at the instigation of his associates. As a result of the blow, Shriram sustained a serious injury on his head which bled profusely. Shriram was taken to be dead by the accused persons who immediately ran away from there after the occurrence. Shriram was soon removed from the scene of offence to Bharatpur for medical examination and treatment of the injury. Dr D P. Mishra PW 1 examined the injury of Shriram and found one incised wourd 3 5 cm x 1 cm, x bone-deep on the left side of occipital region of scalp. In the opinion of the doctor, the injury was simple in nature and caused by shary edged weapon. The duration of the injury was 24 hours and it was likely to cause death.
3. Upon receiving the complaint filed by Bhagwat, the learned Magistrate Bharatpur examined the complainant on oath, held a preliminary inquiry into the truth of the allegations made therein and upon finding a prima facie case issued process against all the eight accused persons under Section 307, 324 and 447 IPC. The accused persons put in their appearance in the court and faced an inquiry preparatory to the commitment. The learned Magistrate after holding the inquiry and finding a prima facie case exclusively triable by the court of Sessions con mitted all the eight accused persons to the count of Sessions Judge Bharatpur for trial under Sections 148, 307, 447 and 307/149 IPG. It appears that the Sessions Judge, Bharatpur transferred the case to the court of Assistant Sessions Judge, Bharatpur, for trial according to law. The Assistant Sessions Judge tried all the accused persons including Babu Respondent and found them net guilty of the aforesaid charges. He consequently acquitted them of all the charges framed against them. Aggrieved by the order of acquittal the State has come up in appeal to this Court.
4. The appeal was admitted by this Court against Babu Respondent only. It was summarily dismissed against other accused persons.
5. We have carefully perused the record and heared Mr. N.S. Acharya Public Prosecutor for the State & Mr M.M. Singhvi learned Counsel for Babu Respondent
6. It has been strenuously urged before us by the learned Public Prosecutor that the Assistant Sessions Judge rejected the testimonies of several eye witnesses on conjectural grounds and committed a grave error in acquitting Babu Respondent of the offence punishable under Section 307 and 447 IPG. It was further urged by him that there is ample reliable evidence on the record that Babu Respondent struck a serious blow on the head of Shriram minor grand-son of the complainant with a spade without lawful excuse after committing a criminal trepass upon the complainant's and in this manner committed crime punishable under Section 307 & 447 IPC Mr. M M. Singhvi learned Counsel for Babu Respondent, on the other hand contended that there is serious conflict between the medical evidence and testimonies of the eye witnesses in as much as the eye witnesses claimed to have seen Babu Respondent inflicting a blow on the head of Shriram with a spade while Dr. D.P. Mishra gave a definite opinion that the injury found on the head of Shriram could not be caused by a spade as its length was little but it was an injury caused by some light sharp edged weapon. Apart from this Mr. M.M. Singhvi invited cut attention to the statement of Shyam PW 6 wherein it has not been mentioned that any blow was struck on the head of Shriram by Babu Respondent with a spade. Mr M.M. Singhvi further contended that the evidence led by the complainant in support of its case is highly discrepant and unworthy of credence as observed by the learned trial Judge and this Court must give due weight to the findings of fact arrived at by the trial court after careful consideration of the entire evidence on the record.
7. We have considered the rival contentions. In our opinion, the complainant could not prove his case against Babu Respondent also by leading cogent and convincing evidence. According to Bhagwat complainant the occurrence took place on 8-11-1970 at about 2 P.M. The complaint, however. Was filed by him in the court of the Munsif Magistrate Bharatpur on 10-11-70. There is no satisfactory explanation for the delay caused in making the comPlaint, Bhagwat complainant stated in his deposition that his grand. son Shriram became unconscious after receiving the injury and regained consciousness about 2 or 2/12 hours later. He brought the boy to his house in the village and took him to Bharatpur hospital on the next day in the morning and so he could not file the complaint in the court earlier than 10-11- 1970 The above explanation given by the complainant is far from being satisfactory because he admitted in his cross-examination that a train was available to him at Hilak railway station at about 5 P M. the very day Even if his grand-son had become unconscious he could take him to Bharatpur hospital via train which Started from Hilak to Bharatpur at 5 P M Bhagwat further admitted In his cross examination that the Police Station Kumher lay at a distance of about six miles from Hilak. He could easily lodge a report with the Police at Police station Kumher or Bharatpur if he desired to do so. According to his own admission Shriram injured was medically examined upto 12 in the noon on the next day. The doctor did not find his condition to be serious nor did he imitinjured to the hospital. In these circumstances, Bhagwat could file a complaint in the court of the Munsif Magistrate Bharatpur after the medical (sic)sanaiation of his grand-son Shriram was over at 12 in the noon. (sic)Gonseqien-ly we are of the view that delay in filing the complaint in this case is of material significance and it casts doubt on (he veracity of the complainant's version. However, the entire prosecution case cannot be thrown out on the mere ground of delay in launching the prosecution. Hence we proceed to);consider the case of the prosecution on merits.
8. The cnmplainant examined himself and Shriram PW 3, Harbeer singh PW 4, Devisingh PW 5 and Shyama PW 6 to prove his case. Besides he produced Dr. D P Mishra PW I who had examined the injured Shri ram. Out of these witnesses PW 6 did not say in his deposition at (he trial that Babu Respondent was responsible for inflicting injury on the head of shriram with a spade. He merely stated in the trial court that on the day of incurrence he was ploughing the field of Bhagwat. At about 2 P.M. 7 or 8 Arsons entered the field of Bhagwat complainant. He knew the names of karansingh, Babu Respondent and Bholi out of them. According to his ver-sion these persons were with spades and they had come to construct a bound ary wall in the filed Bhagwat asked them not to raise any boundary wall in field. At first Babu Respondent and his ether companions insisted on on constructing a boundary wall in the field of Bhagwan but later on when mist.Chironji and Bhagwat lay prostrate on the ground with a view to prevent the miscreants from constructing the boundary wall Babu and his companions went away from there. Shyama PW 6 is an independent witness having no Connections with the complainant or enmity with Babu Respondent and his associates His evidence is entitled to great weight specially when he has not been declared hostile by the prosecution and his presence at the time and place of occurrence was mentioned by the other eye-witnesses The trial Judge also laid much emphasis on his evidence and held on its basis that the story out forward by the complainant does not appear to be true We also are of the view that if any (sic)as"a"lt was made on Shriram by Babu with a spade in the presence of Shyama PW6 the later being an independent and disinterested witness would have surely deposed to this fact. The witnesses to the Occurrence are Shriram injured PW 3, Harbeersingh PW 4, Devisingh PW 5 and Bhagwat complainant PW 2 Upon careful review of the evidence of these witnesses we agree with the trial Judge that their testimonies are highly bereft of credence for the reasons mentioned by the trial Judge in his judgment with which we fully agree & which we do not like to reproduce for fear of repetition Bhagwat complainant stated in his deposition that Babu ard his companions dragged him and threw aside and beat him with slaps and fist blows when he prevented them from constructing the boundary wall in his field. Curiously enough, Bhagwat had no injury on his body. If he was really dragged, pushed aside and beaten by as many as 8 persons including Babu Respondent he would have surely sustained a good number of injuries on his) person & would have got himself medically examined by the doctor. (sic)Abtrxe if injuries on his body throws a lot of douct on the veracity of his version, in his cross-(sic)xamination he could not say who out of the 8 accused caught hold of which part of his (sic)bod and who gave him slaps, Shriram PW 3 is the injured. His evidence is that a blow was inflicted on his head by Babu Respondent with a spade as a result of which he became unconscious. According to his version the blow was struck on his head when he made himself lie down on the bour-dary wall with a view to prevent the accused persons from further constructing the wall In his Cross-examination he gave a goby to his above statement and stated that it he was not on the Dol when the blow was inflicted on his head with a spade. He was confronted with portion A to B of his previous statement Ex D 2 wherein he stated that at the time of receiving the blow with the spade he was standing on the Dol When confronted with his above former statement he admitted to have wrongly made such a statement before the committing court. He was further questioned why he stated wrong fact in his statement Ex.D.2 portion A to B but he could not give any reply aid kept silent. He was again confronted with his previous statement Ex D.2 wherein he emitted to state that the beat-it g was admirsitered to his grand-father Bhagwat and his mother Mist. chiranjai. No reliance can be placed on the testimony of this witnesse who has no respect for truth.
9. The third eye witness is Harbeersingh. He claimed to have been ploughing the land of Bhagwat complainant on the day of occurrence. He also stated in his examination-in-chief that when Bhagwat complainant and his daughter-in-law had laid prostrate on the Dol, Babu and other accused persons administered beating to them and Bholi and Karansingh instigated Babu respondent to beat them with spade if they did not go away from there. Thereupon Babu inflicted a blow on the head of Shriram with a spade. Harbeersingh was confornted with his former statement ExD3 which he gave before the committing court and wherein he omitted to state that Bholi and Karansingh were the (sic)persor.s who instigated Babu to inflict a blow with his spade on the person of Shriram. When confronted with his above former statement he merely stated that he did not remember whether he stated in his previous statement that Bholi and Karansingh had instigated Babu to strike a blow on the head of Shriram- As stated earlier the evidence of Harbeer Singh does not find support from the testimony of Shyama PW6 although Harbaersingh admitted that Shyama was ploughing the field of the complainant along with him at the relevant time. Had there been any assault on Shriram with a spade by Babu Respondent Shyama PW6 also would have seen it.
10. The other eye witness is Devisingh PW 5 Deisingh gave an altogether different version by statirg that when Bhagwat requested the accused persons with folded hards not to construct a boundary wall in his field there was an exchange of abuses and Karamsingh, Harbhan and Babu respondent hurled abuses on the complainant. Curiously enough the complainant did not Say in his deposition that abuses were exchanged between him and the accused persons and that Karansingh, Harbhan and Babu abused him in a foul manner. Devisingh further stated that Shersingh hit Mt, Chiranji and threw her down from the Dol whereupon she was standing. This has not been stated by the complainant and his grand-son Shriram or any other eye witnesses. In his examination-in-chief' Devisingh staled that Babu instigated other accused persons to beat the (sic)complin* it and his drughter in-law and grand-son, if they did not cease to intervene, When confronted with his state-ment which he gave before the Munsif Magistrate he admitted that he did not stat before the Munsif Magistrate that Babu had instigated the other accused persons to beat the complainant and his party. Hp was again con-fronted with and contradicted by his firmer statement Ex D 4 wherein he did not state that all the a cured persons were constructing b (sic)undary wall and that Bhagwat complainant lay prostrate with a view to prevent them form raising the boundary wall and that Harbhan, Karansingh and Babu abused the complainant in a fcul manner When confronted with his former statement Ex.D.4 the witness gave a reply that he stated all the aforesaid facts before the committing curt but he did not know why they were not written. He was again contradicted by his former statement Ex D 4 portion c to D in which he gave fantastic version that Babu, Harbhan, Karansingh, niha1, Bhcli, Charna, Shersiogh and (sic)G /a*i accused on the one tide and bhagwat, Chirarji, Shankar, Kamal, Harbhan ard Shriram on the other were quarrelling with each other in the field of Bhagwat. When confronted with the above portion of his statement Ex D.4 this.witness gave a reply that the accused persons were fighting with Chirarji and Bhagwat & that Harbeer shyama and Shankar were standing there in the field Having regard to the aforesaid (sic)discrepames appearing between the evidence of this witness at the trial and his former statement before the committing court we are of the view that his evidence was rightly held unworthy of credence by the trial Judge, in this manner, the evidence of the complainant and his witnesses does not Inspire confidence so as far as it is related to the part played by Babu (sic)Respon* dent also.
11. There is another infirmity in the prosecution case The infirmity is that according to the version given out by the complainant & his witnesses the injury was caused to the head of Shriram by Babu respondent with a Spade but Dr. DP Mishra who examined the injury on 9-11 70 at 12. JO P.M gave a (sic)corflictirg evidence that the head injury sustained by Shriram was caused by some light sharpe edged weapon aid that it could not have been caused with a spade as its length was little and the edge of spade is long. This corflict between the evidence of the eyewitnesses and the testimony of the doctor with regard to the weapon with which the injury could be caused on the head of Shriram also throws considerable doubt on the version given out by the complainant and his witnesses about the occurrence specially when it has been admitted by the complaianant that the litigation was pending between him and the accu-ed persons includirg Babu Respondent in a Revenue Court relating to the land in dispute Consequently we are of the view that the fact that Babu respondent was responsible for causing an injury on the head of Shriram with a spade could not be established beyond reasonable doubt. Babu was, therefore, rightly acquitted of the charge under Section 307 IPC
12. As regards the (sic)off nee under Section 447 IPC it may be observed that there is no reliable proof on the record that the land in dispute belonged to or was possessed by Bhagwat at the relevant time, Bhagwat complainant stated in his deposition at the trial that land covered by khasra No 111 and 112 was given to him for cultivation by one Girdhar father of Bholi (sic)acci s.d in Samvat year 2011-2012. He, however, could not produce any lease-deed or receipt of land revenue, pertaining to these Khasras Nos. in question Pie further admitted that he did not file any suit for correction of entries in the Revenue record of Sam vat year 012 (o 2020 although he admitted that some of the entries were made in the name 0f Girdhar DW 3. Doliram Patwari clearly (sic)adn,r"fd that in Samvat year 2020 to 2023 he found Bholi accused rultivatirg the disputed Khasra Nos. 111 and 112. He, however, stated that in Samvat year 2024 the name of Bhagwat complainant was entered as tenant of the Khasras Nos 111 and 112 and the names of Bholi and others were mentioned as Khatedars. The Patwari further admitted that in Samvat 2020 Bholi ard others asked him to remove he name of Bhagwat as sub-tenant, but he refused to do so. In this manner there is a dispute relating to possession of the khasras numbers between the complainant and the accused peisons and in the absence of positive evidence it cannot be safely held that Babu Respondent and his companions committed criminal trespass upon these Khasras numbers at the time alleged by the complainant. Hence Babu Respondent could not be safely convicted under Section 447 IPC also.
13. The result of the above discussion is that the appeal filed by the State against the acquittal of Babu Respondent fails and is here dismissed. Babu Respondent is on bail. His bail bonds are discharged.