Rajasthan High Court - Jaipur
Kailash Chand vs Sitaram And Others on 20 July, 2022
Author: Farjand Ali
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 172/1991
Kailash Chand Swami S/o Sh. Kalu Das Swami, R/o Bagru Kalan,
Distt. Jaipur
----Appellant
Versus
1. Sitaram S/o Sh. Chogan
2. Sharwan S/o Sh. Suwalal
3. Chogan S/o Sh. Nathu
4. Hemraj S/o Sh. Jodha
5. Radhey Shyam S/o Chogan
All residents of Bagru kalan, Distt. Jaipur
----Respondents
For Appellant(s) : Ms. Aradhana Swami
For Respondent(s) : Mr. Babulal Nasuna, PP
Mr. Sudhir Pareek
HON'BLE MR. JUSTICE FARJAND ALI
Order
20/07/2022
The instant appeal has been filed against the judgment dated 03.12.1990 passed by learned Additional Munsiff & Judicial Magistrate No. 2, Jaipur, District Jaipur in Criminal Regular Case No. 418/1987; Kailash Chand Swami v. Sitaram & Ors. for the offence under Sections 147, 323, 341, 324 & 504 IPC whereby the learned Magistrate has acquitted the accused-respondents from the charges levelled against them. An appeal under Section 378(4) Cr.P.C. came to be submitted challenging the validity and correctness of the judgment under challenge. Vide order dated 19.03.1991 passed by this Court, the leave to appeal was granted and the accused-respondents were summoned through bailable (Downloaded on 25/12/2022 at 02:48:46 AM) (2 of 7) [CRLA-172/1991] warrant(s) and the criminal appeal had been directed to be registered separately. The accused-respondents had put in appearance vide order dated 12.08.1991 through their counsel.
Heard learned counsel for the complainant-appellant, learned Public Prosecutor and learned counsel for the accused- respondents. Perused the entire material made available on record.
Bereft of elaborate details, the briefly stated facts of the case are that the complainant-appellant moved a criminal complaint on 05.02.1987 in the Court of learned Judicial Magistrate to initiate proceedings against the accused-respondents for the offence under Sections 147, 323, 341, 324 & 504 IPC alleging inter alia that on 15.11.1986, the complainant was working with his father in their field, the accused-respondents too were present at the adjoining field. The incident took place at about 8 A.M. in the morning. The accused- Chogan abused the father of the complainant by using filthy language and raised objection for making the boundary wall and started demolishing their wall. Upon protest from demolishing the boundary wall, the accused- Chogan exhorted the other co-accused persons namely Sitaram, Sharwan, Hemraj and Radhey Shyam. The accused- Sharwan also started abusing the complainant and also bit the right cheek of the complainant-appellant. The accused- Hemraj and Radhey Shyam too inflicted blows to the complainant; accused- Hemraj tried to pull the complainant. The entire incident was witnessed and interfered by one Narayan and Bhanwar Lal. It is pleaded in the complaint that the matter was reported to the police but no action was taken by them, hence, the criminal complaint came to be submitted. After examining the complainant under Section 200 (Downloaded on 25/12/2022 at 02:48:46 AM) (3 of 7) [CRLA-172/1991] Cr.P.C., the complainant was heard and vide order dated 08.09.1987, the learned Trial Court took cognizance of the offence under Section 147 & 323 IPC only and issued process against the accused-respondents. On 23.08.1988, the substance of accusation was stated to the accused for which they denied and claimed trial.
During the course of the trial, PW-1; Kailash Chand, PW-2; Bhanwarlal, PW-3; Kaludas and PW-4; Narayan Prasad were examined. Thereafter, an explanation had been sought from the accused-respondents regarding the evidence brought on record against them. The accused-respondents claimed the evidence of the prosecution to be false, however, no evidence in defence has been produced.
Ms. Aradhana Swami, learned counsel for the appellant vehemently submitted that the learned Trial Judge has miserably failed to appreciate the correct legal and factual aspect of the matter and thus, reached on an erroneous conclusion of acquittal. It is contended that the judgment of learned Trial Court has shown complete disregard to the cardinal principles of criminal jurisprudence. She, further, strenuously urged that a compromise was filed jointly by the parties on 03.04.1989 in the learned Trial Court and a perusal of the same reflects that the accused- respondents were guilty of the offences and they sought pardon from the complainant-appellant.
Learned counsel further submits that in view of the compromise, learned Trial Court should make sincere endeavours so as to restore amicable relationship between the parties. The reconciliation effort would lessen the bitterness and animus between the parties otherwise the wound will continue to bleed. It (Downloaded on 25/12/2022 at 02:48:46 AM) (4 of 7) [CRLA-172/1991] is vehemently submitted that the effort of amicable settlement between the parties must have been made by learned Trial Court so as to bridge harmonious relationship in between them. She lastly contends that the judgment of acquittal, is not in consonance with the sound and established principles of law, therefore, the same deserves to be quashed and set aside and the accused-respondents are liable to be convicted and sentenced suitably.
Per contra, learned Public Prosecutor submits that the learned Judicial Magistrate has not committed any error and therefore, the finding does not require to be interfered with.
Learned counsel for the accused-respondents argued that the finding reached out by the learned Trial Court is based upon sound legal principles. Learned Trial Judge has appreciated the entire evidences and the judgment is well reasoned, therefore, the same required no interference after thirty five years.
I have carefully examined and considered the rival submissions made by learned counsel for the parties. It is well established law that when a High Court is entertaining an appeal against the judgment of acquittal, it is in fact exercising its revisional jurisdiction and doing re-appreciation of the evidence adduced by the parties in respect of their claims and therefore, the High Court should not interfere in the finding reached by the learned Trial Court unless direct or material irregularity or omission of evidence is noticed and it is felt that the conclusion arrived at by learned Trial Judge would not be arrived at by any reasonable person and therefore, the decision is to be characterized as perverse. Merely because two views are possible, (Downloaded on 25/12/2022 at 02:48:46 AM) (5 of 7) [CRLA-172/1991] the Court of Appeal would not take a stand to upset the judgment of the Trial Court.
The facts of the case revolves around an alleged incident that occurred on 15.11.1986 for which the criminal complaint was made on 05.02.1987. The inordinate delay in moving the complaint has not been explained satisfactorily. Even if the evidence is re-appreciated, it would reveal that there is major discrepancy in testimonies of the prosecution witnesses. PW-1; Kailash Chand Swami states that when they were doing work at their agricultural field, the accused- Chogan came and abused them and called his sons. The accused- Sitaram too bit on his cheek, accused- Hemraj compressed his neck and accused- Radhey Shyam made fist blow. His testimony is not corroborated by PW-2; Bhanwar Lal in stricto sensu. He admits in cross- examination that no beating was made by accused- Chogan whilst PW-1; Kailash Chand asserts that he was beaten by accused- Chogan. He further admits that the accused- Sharwan was standing there only and he was not among the fighters. On the contrary, the victim- Kailash Chand states that Sharwan too was involved in beating. PW-2; Bhanwar Lal also admits that the accused- Radhey Shyam was not participating in fighting; On the other hand, PW-1; Kailash Chand states that Radhey Shyam too was involved. As stated, the incident occurred on account of demolition of a boundary wall while no one saw the broken boundary wall. There is direct conflict in between the statements of the prosecution witnesses. PW-3; Kaludas who is father of the complainant-appellant categorically admits in cross-examination that he did not saw anyone beating the victim- Kailash Chand. There is no reason why the evidence of PW-3; Kaludas be (Downloaded on 25/12/2022 at 02:48:46 AM) (6 of 7) [CRLA-172/1991] discarded or disbelieved. Nothing on record so as to establish the fact that who actually was dismantling the boundary wall. There is major contradiction in between the statements of PW-1 and PW-3 in respect of beating to PW-3; Kaludas. PW-4; Narayan Prasad who has been produced by the complainant as an eye witness has deposed an altogether different story. He states that the accused- Chogan was beating PW-1; Kailash Chand. On the contrary, the victim- Kailash Chand and the other witnesses are not corroborating this fact. When serious contradiction and incongruency come on record as to who gave beating to whom, in that situation placing reliance upon such evidence to convict the accused persons cannot be said to be a safe decision. From the contradictory evidence brought on record, the presence of witnesses at the place of incident comes under serious doubt and therefore, no reliance can be placed upon their testimony. As far as the issue raised by learned counsel for the complainant- appellant regarding existence of compromise purportedly executed in between the parties concerned, it is notable that even the complainant-appellant did not make any effort to tender the compromise into evidence. The compromise written on a plain paper has not been exhibited in the trial. There seems no prayer of the complainant party for making effort for mediation, therefore, learned Trial Judge has not erred in not taking into consideration the said document which is not the part of the record. The another angle of the case would be that the fact of inflicting injuries has not been corroborated by medical evidence. The MLC/Injury Report has not been tendered into evidence and the Doctor who examined the victim, has not been examined in the trial. Thus, the statement of the victim is not getting (Downloaded on 25/12/2022 at 02:48:46 AM) (7 of 7) [CRLA-172/1991] corroboration from independent source(s). Learned Trial Judge has also appreciated and noticed the fact that there were major contradictions in between the report submitted by the complainant to the police and the criminal complaint submitted in the Court and no explanation whatsoever has been furnished in this regard by the victim- Kailash Chand. After a careful scanning of the material available on record and due appreciation of evidence, learned Trial Court had reached on the conclusion that the prosecution had failed to prove the case against the accused- respondents beyond reasonable doubt and after anxious consideration, this Court too do not see any reason to interfere in the fact finding made by learned Trial Court after prudent appreciation.
After considering the totality of facts and circumstances of the case as well as the submissions made by learned counsel for the parties, this Court is of the firm view that the learned Trial Court has not committed any error and the finding deserves to be affirmed. The appeal is devoid of any merit and therefore, deserves to be dismissed.
Accordingly, the instant appeal filed on behalf of the complainant-appellant is dismissed. The bail bonds executed by the accused-respondents for their appearance before this court are cancelled. Record be remitted back to the learned Trial Court.
(FARJAND ALI),J SAHIL SONI/02 (Downloaded on 25/12/2022 at 02:48:46 AM) Powered by TCPDF (www.tcpdf.org)