Rajasthan High Court - Jaipur
Nathia vs State Of Rajasthan on 30 November, 1998
Equivalent citations: 1999CRILJ1371, 1999WLC(RAJ)UC399
Author: V.G. Palshikar
Bench: V.G. Palshikar, Bhagwati Prasad
JUDGMENT V.G. Palshikar, J.
1. This appeal is directed that against the judgment dt. 1-9-92 passed by the learned Sessions Judge, Udaipur in Criminal Case No. 1791 convicting the appellant-accused of offence under Section 302 of the Indian Penal Code and sentencing him to imprisonment for life.
2. The prosecution story stated briefly is that at about 1.30 p.m. on 24th October, 1990, first information report was lodged in Police Station, Parsola to the effect that one Paduri aged about 55 years has been killed by the accused as he wanted to take up the land belonging to Paduri who was a childless woman. It was alleged in the first information report that one Nathia s/o Chokha Meena has killed Paduri and this information was given to Kesia who lodged the first information report by Kalu s/o Roopa who directed to lodge the information with the Police. On the basis of this report, investigation was taken up and on completion of investigation, the accused was prosecuted as aforesaid and convicted by the impugned judgment. The learned counsel for the appellant has contended that the judgment of conviction is unsustainable in law. According to the learned counsel, only one person was named as eye-witness in the first information report whereas, three persons have been examined as eye-witnesses by the prosecution, even those who claimed to be an eye-witness in their deposition exclude each other as an eye-witness. According to the learned counsel, therefore, there is no eyewitness to the killing and therefore, merely because, there was possibility of a motive for the accused-appellant to have killed Paduri. It cannot be inferred that there is enough evidence to record a judgment of conviction.
3. With the assistance of the learned counsel for the accused-appellant and the learned Public Prosecutor, we have re-examined and reappreciated the evidence on record. PW 1 is the person who lodged the first information report. He had PWs. 2, 4 and 5 heard that the accused killed the deceased allegedly for taking over her properties in the shape of agricultural land. None of PWs. 1, 2, 4 and 5 are eye-witnesses. This witness PW. 2 nowhere in his deposition states that he saw accused giving blow of axe to the deceased. He has on the contrary stated that:
^^ftl le; ;g ?kVuk gqbZ ml le; [ksr ij :ik ekStwn Fkk vkSj ,d ykyk th Hkh Fks A** This witness is obviously not an. eye-witness to the incident.
4. There is no mention in the first information report regarding P.W. 3 Lalu and PW. 6 Roopa being eye-witnesses, yet they said that they saw the incident. PW 3 Lalu says that when he was ploughing the field, he saw accused Nathia coming from one side and giving axe blow on the left side of the neck of Paduri the deceased who felled and died and Nathia ran away. The witness states that when this incident occurred, he was alone in his field. In his cross-examination, he states that, when this incident occurred, there was nobody who saw it.
5. According to PW. 6 Roopa, he saw while he was ploughing his field accused Nathia hitting axe blow on the neck of Paduri and running away. It is pertinent to note that both these PWs. 3 and 6 have not been mentioned in the first information report equally interesting in the manner of deposition of these witnesses in relation to the incident which needs scrutiny. P.W. 2 the alleged eyewitness states thus :
^^eqfYte inqMh ds ;gkW ij x;k Fkk eqfYte us Mksdjh inqMh ds dqYgkMh dk okj fd;k tks mlus vius dEcy esa dqYgkMh fNik j[kh Fkh mlls okj fd;k A eqfYte us inqMh ds nkfguh rjQ xnZu ij okj fd;k vkSj inqMh ekSds ij gh [kre gks xbZ A** Describing this incident, PW. 3 says that:
^^inqMh ds ukfFk;k us xnZu ds nkbZ rjQ dqYgkMh dk okj fd;k ftlls inqMh uhps fxj xbZ A** PW. 6 says that:
eSus gy pykrs gq,s ns[kk fd eqfYte ukfFk;k ftlus dkyh dEcy vks<h gqbZ Fkh us inqMh ds xys es dqYgkMh ekj nh Fkh A dqYgkMh nkfguh rjQ ekjh Fkh A**
6. It will thus be seen that each witness states categorically that accused gave axe blow on the right side of the neck. It corroborates with the deposition of the Doctor that Paduri died due to injury inflicted on the, right side of the neck. According to the learned counsel appreciating this statement on record and the manner in which these witnesses have deposed coupled with the fact. PWs. 3 and 6 are not mentioned as eyewitnesses. It is obvious that the entire case is built ; up by the prosecution and PWs. 3 and 6 have been met to state that they saw accused giving axe blow on the right side of the neck killing Paduri. According to the learned counsel such consistency in the deposition is not possible except where it is a plan. In fact, according to the learned counsel, there is no eye-witness to the incident. The mere fact that accused Nathia was interested in the land of deceased Paduri, it cannot be said that the prosecution has proved killing of Paduri by accused beyond reasonable doubt.
7. We have re-appreciated the evidence 'on record and we find the arguments advanced by the learned counsel substantially correct. The first information report names PW. 2 as the eye-witness whose evidence discloses that he is not an eye-witness. PWs. 3 and 6 have been examined as eye-witnesses. Though they are not mentioned in the first information report, even their deposition is that they saw while they were ploughing their field the accused giving death blow to the deceased and yet they saw that other witness was not present. These according to us are material contradictions which create reasonable doubt regarding presence either of the two witnesses at the scene of occurrence, it creates a doubt in the mind of reasonable man regarding presence of these witnesses. A serious doubt arises, therefore, as to whether there was an eye-witness to the incident, the other evidence on record and the attending circumstances proved by that evidence lands credible support to the claim of the accused that there is no eye-witness, though ,homicidal death of Paduri is proved. There is no connection between the death and the accused established by the prosecution and the accused must get advantage of this situation.
8. According to us, therefore, the prosecution has failed to prove any connection between, the homicidal death of Paduri and the accused. The eye-witnesses as examined by the prosecution are . wholly unreliable as they materially contradict to each other. Two of them are not mentioned in F.I.R. and one is proved not to be an eye-witness. In such circumstances, it is not permissible in law to come to a conclusion of guilt beyond reasonable doubt. We are therefore, unable to uphold the order of conviction as recorded by the learned Sessions Judge.
9. In the result, the appeal succeeds and is allowed. The judgment and order of conviction is set aside. The accused is acquitted of the offence under Section 302 of the Indian Penal Code. He is in jail. He be released forthwith, if not required for any other offence by the Police.