Rajasthan High Court - Jaipur
State vs Ram Sahai on 27 June, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Criminal Appeal No. 260 / 1989
State of Rajasthan
----Appellant
Versus
Ram Sahai son of Ram Narain
----Respondent
_____________________________________________________ For Appellant(s) : Mr. B.N. Sandu, A.A.G. cum P.P. For Respondent(s) : None present _____________________________________________________ HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE VIJAY KUMAR VYAS / Judgment/ 27/06/2017 :
Per : Hon'ble Ahluwalia J.
Ramsahay son of Ramnarain, by caste Meena, resident of Neemlee Khurd, District Sawai Madhopur was tried by the Court of District & Sessions Judge, Bundi (Rajasthan) for offences punishable under Sections 364 and 302/34 of Indian Penal Code.
The said Court vide its impugned judgment dated 24.03.1989 acquitted above said accused from the above offences.
Aggrieved against the same, the State of Rajasthan had preferred leave to appeal.
A Division Bench of this Court on 13.07.1989 granted leave to appeal and, hence, present appeal has been registered.
The case of the prosecution in nut-shell, is that on 07.05.1983 in the evening present appellant - Ramsahay forcibly abducted one Sukhpal son of Kaurilal from Chambal Avadh Express Train at Lakheri Railway Station and, thus, committed offence (2 of 13) [CRLA-260/1989] punishable under Section 364 I.P.C. It is further case of the prosecution that after having abducted Sukhpal on the same night near B Cabin of EC Gate No.136 at Railway Station, Lakheri, accused-respondent, along with two other persons caused injuries to Sukhpal and, thus, committed offence punishable under Section 302 read with Section 34 I.P.C.
The case of prosecution, primarily rests upon the dying declaration made by Sukhpal, which led to the registration of First Information Report. The said oral dying declaration was recorded by Hardayal Singh (PW-16), who was then posted as Head Constable at Police Station Kotwali, District Sawai Madhopur.
Before the trial Court, Hardayal Singh (PW-16) deposed that on 08.05.1983 he was posted as Head Constable at Police Station Kotwali District Sawai Madhopur. On the said night at 02:45 A.M. he received a telephonic information from Medical Officer - Dr. P.L. Bansal disclosing that Sukhpal in injured condition has been admitted and somebody be sent for recording his statement. Station House Officer, Police Station Kotwali deputed Hardayal Singh (PW-16) to record the statement. This witness before departure from the Police Station made an entry to this effect in the Police Daily Diary Register. He along with Constable - Giriraj Prasad reached at hospital and met Dr. P.L. Bansal. Dr. P.L. Bansal (PW-6) introduced injured to the Police Officials and made a request for recording his statement. This witness recorded statement (Exhibit-P/5) of Sukhpal. The said statement, as narrated by Sukhpal was dictated by Hardyal Singh (PW-16) to the Constable accompanying him. Sukhpal appended his thumb impression at Point X. The statement was recorded in presence of Dr. P.L. Bansal (PW-6) and after reading the same, Doctor also appended his signature at Point C & D. After recording the statement at about 03:15 A.M., Head Constable - Hardayal Singh (PW-16) returned to the Police Station Kotwali. The (3 of 13) [CRLA-260/1989] witness presented statement (Exhibit-P/5) to the Station House Officer, who thereupon had registered a formal First Information Report (Exhibit-P/11).
The statement (Exhibit-P/5) purportedly the dying declaration on the basis of which a formal First Information Report was registered when translated into English reads as under :-
"The statement of Sukhpal son of Kaurilal, aged fifty years, by caste Meena, resident of Neemlee Khurd, Police Station Sawai Madhopur: Dated 08.05.1983 :-
I had gone to attend the Court at Kota. Tonight I was returning from Avadh Train. The train stopped at Lakheri Station. Three persons, which included Ramsahay and others at about 03:45 A.M. made me alight from the train. Ramsahay was armed with lathi. Out of them, I knew two persons by face but their names were not known to me. One was armed with cycle chain and another with a danda. All three caused me injuries with lathi, danda and chain. I sufferred injuries on my back, head, hands and feet. After train left station, railway employees brought me to the Waiting Room. From Kustala Station, I got made a telephonic call, upon which Jagan, Dharrampal, Ramnarain and Badri came. In the night from Agra Fort Train, they brought me to the hospital at Sawaimadhopur. The above said three persons after causing injuries had decamped from the spot. I was beaten near the Cabin and Gangashankar, Advocate had seen the alleged occurrence. The said occurrence was also witnessed by the passengers of the train, but they are not known to me."
The prosecution in the present case examined as many as sixteen witnesses and proved on record various documents as Exhibit- P/1 to Exhibit-P/19 respectively. On behalf of the defence, the statements of Jaganlal (PW-3), Shyamsunder (PW-4), Surajmal (PW-5) and Majida (PW-11) recorded under Section 161 Cr.P.C. by the Police have been proved on record as Exhibit-D/1 to Exhibit-D/4 respectively.
(4 of 13) [CRLA-260/1989] Dr. P.L. Bansal (PW-6) appearing in the Court as PW-6, deposed that on 08.05.1983 he was posted as Medical Jurist at General Hospital, Sawaimadhopur and at 03:40 A.M. he conducted medical examination of Sukhpal and found following injuries (Exhibit-p/3) on his person :-
"1. Vertical red bruise with linear parallel abrasions as shown in fig. In the report on the back left side extending from the lower end of scapula to lumber region with diffused swelling 10"
x1/2".
2. Red bruise 5"x 1½ on the back left side below scapula medial to the injury No.1 with diffused swelling and surgical emphysema.
3. Red bruise 4½" x 1½" on the back extending from the upper of injury No.2 towards back bone with diffused swelling with surgical emphysema.
4. Two bruises 4" x 1", 4" x 1¼ " on the back left side over lapping of the lower part of the injury No.3 upto back bone with diffused swelling and surgical emphysema.
5. Abrasion with red surrounding surface on the left scapular region upper part 1" x 1/2" x 1/10".
6. Abrasion ½"x ½" on the left scapular region towards back bone.
7. Red bruise parallel to the back bone 3/4" right to the back bone at the back right side extending from the lower part of the right scapular region.- upto upper part of right lumber region. 8" x 1/2" with diffused swelling.
8. Red bruise on the back right side at middle 4" x 1" with diffused swelling.
9. Red bruise 4" x 1" with diffused swelling on the back right side below scapular region over lapping injury No.7.
10. Red bruise on the back at left lumber region 3" x 1" with diffused swelling.
11. Red bruise on the back at right lumber region lower part 3" x 1".
12. Oblique red bruise with abrasions on the right scapular region upper part with diffused swelling 5x½" x ½". The size of abrasion is 1/4" x 1/10 x 1/10".
(5 of 13) [CRLA-260/1989]
13. Multiple irregular abrasion on the front surface and top of the right shoulder 1/5" x 1/5" to 1/4" x 1/5".
14. Abrasions with diffused swelling on the back and middle of the right upper arm 1/2" x ½."
15. Red bruise with diffused swelling on the back and middle of the right fore arm 4" x 1x½
16. Multiple abrasions on the scalp and fore head above the right and left eye brows 1/4" x 1/10" x 1/10" each.
17. Two linear abrasions on the back and middle of the left fore arm 1/2" x 1/5".
All above said injuries were caused by blunt weapon and were simple in nature, except Injuries No.1,2,3,4, 14 & 15 and x-ray was advised, qua injuries Nos.1, 2, 3, 4, 14 and 15 respectively.
Dr. Bansal (PW-6) further deposed that Sukhpal died in the hospital on 08.05.1983 at 07:25 A.M. and in the same day at 09:00 A.M., he conducted an autopsy on the dead-body and upon dissection he had found fracture of the 9 th, 10th and 11th ribs and due to above fractures described left lung of Sukhpal had collapsed. Dr. Bansal further noted that there was presence of surgical emphysema on the left side of chest. The left thoracic cavity was full of blood and there was collection of blood at the left retro peritoneal space. According to Dr. Bansal, all injuries were sufficient to cause death in the ordinary course of nature. Dr. Bansal further stated that statement of the patient was recorded by Constable - Hardayal Singh (PW-16) in his presence at the hospital.
In cross-examination, this witness (PW-6) stated that he is not in a position to remember, whether Sukhpal was brought by the Police or by somebody else. Dr. Bansal further stated that no operation of Sukhpal till his death was conducted.
(6 of 13) [CRLA-260/1989] In cross-examination, Dr. Bansal further stated that the condition of the patient was not fit for conducting operation. Injured was restless. He was having surgical emphysema. His blood pressure was 80 M.M.H.G. His general condition was poor. His pulse was 86 per minute. Dr. Bansal stated that upper blood pressure was 80 and the lower blood pressure was not recordable. Dr. Bansal stated that due to surgical emphysema, lung of the patient had collapsed. The witness further stated that the patient was breathing and his breathing was 40 per minute. Dr. further stated that due to collapse of lung, blood had gathered in the thoracic cavity. Dr. further stated that due to collection of the blood in the thoracic cavity, heart was bound to collapse. Dr. Bansal admitted that for stabilizing the condition of the patient, he had administered one bottle of the blood and had also administered meftine injunction. Lastly, this witness stated that Gangashankar, Advocate is known to him. He had not seen him near the patient, but four-six attendants of the patient were present in the hospital.
Lokesh Kumar (PW-1) stated that on 08.05.1983 he was posted as Station House Officer, Police Station Kotwali Sawaimadhopur. The statement of Sukhpal son of Kaurilal was presented before him and on the basis thereof he had registered a formal First Information Report for offences punishable under Section 307 and 323 I.P.C.
Phool Chand (PW-2) is brother of the deceased. This witness stated that upon receipt of telephonic information, he had gone along with others to the Railway Station. Sukhpal was found lying on the cot at the Waiting Room in the injured condition. Sukhpal was conscious. He was looked after by Kanhaiya Lal Gurjar. Sukhpal narrated entire incident to him and he along with others brought Sukhpal to the hospital.
(7 of 13) [CRLA-260/1989] Similarly, Jagan Lal (PW-3) had accompanied Phoolchand, Bardi, Dharampal and Ramnarain and ten-fifteen other persons to Lakheri Railway Station. This witness stated that Sukhpal on asking narrated entire incident and had named accused-respondent as one of the assailant. This witness stated that deceased -Sukhpal was his uncle (chacha). Lastly, this witness admitted that when Sukhpal had narrated entire occurrence at that time Kanhaiya Lal Gurjar was present along with him.
Shyam Sundar Lal Sharma (PW-4) deposed in the Court that he was posted as Assistant Station Master at Lakheri Railway Station. At that time, one Laxmandas, Switch-man, B-Cabin informed him that one person due to injuries caused is lying in front of B-Cabin. He made efforts to inform Lakheri Railway Station, but telephone line was out of order. He gave a telegram to G.R.P. Police. Later-on, he informed the relatives of the accused and they took him to the hospital at Sawaimadhopur. Lastly, this witness stated that the injured was attended by Kanhaiya Lal Gurjar, Valveman.
Surajmal (PW-5) stated that he knew Sukhpal Meena. This witness was posted at Kustala Railway Station as Cabinman. This witness received an information regarding injuries received by Sukhpal. He had further relayed the information to the relatives of the deceased.
Laxmandas (PW-7) is the witness to the preparation of the site-plan (Exhibit-P/7) by the Police. This witness stated that the Police had seen the place of occurrence near B-Cabin of the Traffic Gate, Railway Station, Lakheri. This witness stated that Chambal Avadh Express Train which was going to Lakheri Station at about 04:00 P.M. on the fateful day was half an hour late. At that time, he had flagged the train. He saw that one old person was being caused injuries by two (8 of 13) [CRLA-260/1989] persons. This witness stated that injured informed him that information be relayed to the Cabinman at Kustala Railway Station to the effect that he has been caused injuries by two persons. Lastly, this witness stated that Kanhaiya Lal brought a cot in the night at 08:00 P.M. Gaindi Lal (PW-8) who was then posted as A.s.I. Kotwali Sawaimadhopur, had effected the arrest of the accused-respondent.
Gangashankar, Advocate (PW-9) stated that on 07.05.1983 his four-five cases were listed before the Revenue Court, Kota. On the said day at around 04:00-05:00 A.M., deceased Sukhpal, Badri Meena and Ramphool Meena came to him. They informed him that they were returning to their home in train. This witness stated that he told them that he will come in Avadh Express Train. This witness stated that since on that day Avadh Express Train was two hours late, he took a local train for reaching at Kota where he learnt that cases have been adjourned. For returning to Kota, he took Avadh Express Train. When Avadh Express Train stopped at Lakheri Station, he saw three persons were dragging a person. Lastly, this witness stated that he had identified Ramsahay as one person, who was dragging Sukhpal.
Kanhaiyalal (PW-10) stated that from about last twenty-two years he was working for the Railways. From last fifteen years he was posted at Lakheri Railway Station. Pannalal Porter had informed him that one man is lying injured. He went to the place where injured was lying. He found that Majida was also present there. The witness stated that later Cabinman informed that injured person was resident of Kustala. The witness stated that he remained with the said injured person and he had not named any one as accused. This witness was declared hostile to the prosecution.
Majida (PW-11) was working as Chowkidar at Railway Station Lakheri. In the Court this witness was declared hostile to the (9 of 13) [CRLA-260/1989] prosecution as he deposed in the Court that he had not seen the alleged occurrence.
Ramavtar (PW-12) who was then posted as In-charge G.R.P. Police Station, Kota had partly investigated the case.
Chandradutt Chaturvedi (PW-13) had effected the arrest of the accused and had also investigated the case.
Devidan (PW-14) and Shivsingh (PW-15) were posted as Constables, G.R.P. Police Station, Kota. They have deposed regarding the arrest of the accused and other facets of the investigation.
As is apparent that the case of the prosecution rests upon the dying declaration made by the deceased to Head Constable- Hardayal Singh (PW-16). The said dying declaration was witnessed by Dr. P.L. Bansal (PW-6).
Besides the above said dying declaration, the prosecution has relied upon the testimony of Gangashankar, Advocate (PW-9), who as per statement (Exhibit-P/5), which was later-on termed as dying declaration had witnessed the alleged occurrence and was named as an eye-witness.
The trial Judge to acquit the appellant has disbelieved both; the dying declaration (Exhibit-P/5) and the deposition of Gangashankar, Advocate (PW-9). The trial Judge noted that the Police received information at 07:00 A.M. in the morning of 08.05.1983 that Sukhpal had died.
Mr. B.N. Sandu, ld. A.A.G. cum P.P. appearing for the State of Rajasthan, has urged before us that since the dying declaration has been attested by Dr. P.L. Bansal (PW-6), the ld. trial Judge committed a grave error to discard the same. It is further urged before us by ld. A.A.G. cum P.P., that Gangashankar, Advocate (PW-9) was an independent witness and, therefore, his testimony could not be brush-
(10 of 13) [CRLA-260/1989] aside by the trial Judge.
We have heard Mr. B.N. Sandu, ld. A.A.G. cum P.P. appearing for the State of Rajasthan and perused the impugned judgment as well as the record of the entire case.
The trial Judge had placed reliance upon the statement (Exhibit-P/9) of Kanhaiya Lal (PW-10) recorded by the Police under Section 161 Cr.P.C. In the statement (Exhibit-P/9) of Kanhaiya Lal (PW-
10) who had attended the injured at Railway Station, it is emphatically recorded that the injured was unconscious.
The trial Judge to discard the dying declaration in Paras 32 and 33 of the impugned judgment has given following reasons :-
"bl ekeys ds fu.kZ; gsrq e`rd lq[kiky dk e`R;qdkfyd dFku cgqr gh vf/kd egRoiw.kZ gSaA bl izdkj ds dFku dks fo"oluh; ekus tkus ds fy;s ;g vko";d gS fd ,slk dFku e`rd }kjk e`R;q ls iwoZ LosPNkiwoZd rFkk lR;rk iw.kZ fd;k x;k gksA ;g Hkh vko";d gS fd e`rd ekufld n`f'V ls ,slh fLFkfr esa gks fd og ,slk dFku dg ldsA bl ekeys esa bl lac/a k esa lcls egRoiw.kZ lk{kh dUgS;kyky ¼ih-M-10½ gS] ftldh mifLFkfr cjkcj et:c lq[kiky ds lkFk rFkkdfFkr okds ls lq[kiky dks mlds fj"rsnkjksa }kjk jsy esa ys tkus rd crkbZ xbZ gSA dUgS;k yky lk{kh ds c;ku ds voyksdu ls Li'V gS fd mlus vius c;ku izn"kZ ih -9 dk fgLlk , ls ch ,oa lh ls Mh ugha fy[kok;k tkuk crk;k gSA mDr vkneh ds mlds ikl igqapus ls jsy xkM+h esa j[kus rd csgks"kh gkyr esa gksuk crk;k gS rFkk 10&20 vkneh lokbZek/kksiqj ls vkuk Hkh crk;k gSA (Emphasis Supplied).blh lk{kh ds dFku dh iqf'V gsrq ih-M- 7 y{e.knkl ,oa ih-M- 11 ethnk ds c;ku ds voyksdu ls Hkh Li'V gS fd mDr nksuksa lk{khx.k Hkh et:c ds okds ls lacaf/kr jgsA ih-M- 7 y{e.k nkl ds vuqlkj ?kk;y cq<~<s us dqjryk LVs"ku ij lwjt dsfcu esu dks [kcj djus dh ckr dgh gS] fdUrq ;g ugh crk;k gS fd mlus vfHk;qDr ds }kjk ekjus dk dFku mls fn;k gksA bl izdkj bl laaca/k esa izLrqr dh xbZ lk{; ls ;g rks Li'V gS fd tks et:ch gkyr esa O;fDr yk[ksjh jsYos LVs"ku ij iM+k Fkk] og pksVsa yxus ds rqjUr ckn cksyus dh fLFkfr esa Fkk] fdUrq bl ekeys ds fu.kZ; gsrq egRoiw.kZ ;g jgrk gS fd mDr O;fDr ds tks pksVsa vkbZ gS mudh xaHkjrk dks ns[krs gq, og lqcg rhu ctdj iUnzg fefuV rd cksyus dh fLFkfr esa Fkk vFkok ugha] ;g vR;Ur gh egRoiw.kZ gSA bl laca/k esa ih-M- 16 gjn;ky flag ds dFkukuqlkj ijpk c;ku lq[kiky ds dgs vuqlkj cksy dj vius lkFk ds flikgh ls fy[kok;k vkSj izn"kZ ih 5 ijpk c;ku ij vius gLrk{kj djus ds ckn lq[kiky dh fu"kkuh djokbZ rFkk MkDVj caly ¼ih-M- 6½ dh ekStwnxh esa muds gLrk{kj Hkh bl ij lh ls Mh djok;sA lk{kh us c;ku ysus ls igys lq[kiky ds ikl 4&5 O;fDr ekStwn gksuk crk;k gSA ih-M- 6 MkW- Ikh-,y- caly us fnukad 08-05-1983 dks esfMdy T;wfjLV] jktdh; vLirky] lokbZ ek/kksiqj dh gSfl;r ls dk;Z djuk rFkk et:c ds c;ku ih-M- 16 gjn;ky flag eq[; vkj{kh }kjk viuh ekStwnxh esa fy;k tkuk rFkk mlds c;ku nsus dh fLFkfr esa gksuk crk;k gSA ftjg esa bl lk{kh us c;ku fd;k gS fd ?kk;y cspsu Fkk] mldh lk/kkj.k fLFkfr detksj FkhA QsQMs ds pksVs yxs gksus ds dkj.k Fkksjksfld dsfOVh esa jDr ,df=r gqvk tk jgk Fkk vkSj mlds bdV~Bs gq;s jDr dh ek=k c<+us ls ?kk;y dh fLFkfr fcxM+rh tk jgh FkhA lk{kh us ;g Hkh Li'V fd;k gS fd e`rd ejus rd csgks"k ugha gqvk rFkk ejht ds ikl 4&6 yksxksa dh mifLFkfr gksuk bl lk{kh us crk;k gSA (Emphasis supplied).
bl izdkj bl ekeys esa tks e`rd dk e`R;qdkfyd dFku izn"kZ ih-5 ys[kc) fd;k x;k gS] mlds ckcr izLrqr dh xbZ lk{; ls Li'V gS fd lk{kh ih-M- 2 Qwypan e`rd dk lxk HkkbZ] ih-M- 3 txu yky] e`rd dk lxk Hkrhtk rFkk ih-M- 9 xaxk"kadj e`rd dk odhy gksus ds vykok e`rd ds lkFk vfHk;qDr jke lgk; }kjk ekjihV djus dh iqf'V ih-M- 10 dUgS;kyky ds dFku ls ugha gksus rFkk et:c ds ikl "kq: ls c;ku ys[kc) fd;s tkus rd mlds fj"rsnkjksa dh cjkcj ekStwnxh jgus rFkk dkQh foyEc ls fjiksVZ fy;s tkus ds vykok et:c dh fxjrh gqbZ gkyr gksus dh fLFkfr dks ns[krs gq, esjh jk; es aizLrqr dh xbZ lk{; ls ;g laHkkouk Hkh utj vkrh gS fd mDr e`rd lq[kiky ij vfHk;qDr ds lkFk eqdnesckth vkfn (11 of 13) [CRLA-260/1989] ds vk/kkj ij ncko fn;k tkdj mlls dqN dgyk;k x;k gks vkSj bl lEHkkouk dks ns[krs gq, esjh jk; esa mi;ZqDr leLr rF;ksa dh jks"kuh esa mi;qZDr e`R;qdkfcyd dFku fo"oluh; ugha ekuk tk ldrkA."
We have perused the medical evidence.
The left lung of the deceased had collapsed. There was presence of blood in the thoracic cavity, therefore, medical condition of injured justify the admission made by Kanhaiya Lal (PW-10) in cross- examination that injured, when placed in the train had become unconscious.
The following lines in the cross-examination of Kanhaiya Lal (PW-10) are important :-
"mls xkM+h esa j[kk ml le; rd og csgks'kh gkyr esa FkkA eSa tc mlds ikl igaqpk rc Hkh csgks'kh gkyr esa FkkA."
The medical condition, as noted by Doctor make prosecution case doubtful regarding the capacity of the deceased to speak and make the statement.
We may notice here that Dr. P.L. Bansal (PW-6) before the post mortem had noted external injuries. From perusal of external injuries one could not imagine that the lung of the deceased had collapsed. Therefore, Dr. P.L. Bansal (PW-6) was prevailed upon to attest the dying declaration. However, the post mortem belie the deposition of Dr. Bansal that deceased could speak. A searching cross- examination has been carried. Dr. has stated that the deceased could speak with difficulty and his blood breathing was 40 per minute.
We may further notice here that the lower blood pressure of the deceased was not recordable. Injuries were caused to the deceased
- Sukhpal in the chest as per Shyam Sundar Lal Sharma (PW-4) at around 06:30-06:45 P.M. Due to fractures 9th, 10th and 11th ribs, which were found during post mortem, we are of the firm view that the collapse of the lung will be instantaneous. We have our serious doubts (12 of 13) [CRLA-260/1989] whether with the injuries received, as noted in the post mortem deceased will be in a position to speak or not.
In the context of above, we approve the reasonings propounded by the ld. trial Court in Para 31 of the impugned judgment and the said Para reads as under :-
"e`rd lq[kiky ds e`R;qdkfyd dFku ds laca/k esa nyhy nh xbZ gS fd mDr dFku lqcg lok rhu cts fy;k x;k rks mDr et:c lq[kiky ds lkFk mlds HkkbZca/k ekStwn Fks vkSj tks pkj O;fDr lq[kiky ds ikl tkuk crk;s x;s gS] muesa ls dsoy ek= txu gh izLrqr gqvk gS vkSj Qwypan lk{kh dks mlds vykok izLrqr fd;k x;k gSA cn`h ,oa jkeQwy ds izLrqr ugha gksus rFkk lk{kh dUgS;kyky ¼ih-M-10½ ds dFku ds }kjk et:c lq[kiky }kjk mlls dqN ugha dgus ls Li'V gS fd lq[kiky cksyus ;ksX; ugha Fkk] vU;Fkk jkelgk; dk uke crkrk] fdUrq og csgks"kh gkyr esa FkkA lq[kiky i<+k fy[kk O;fDr gksrs gq, Hkh ijpk c;ku izn"kZ ih 5 ij mlds gLrk{kj ugha djok dj mldh fu"kkuh vaxq'B djok;s tkus ls Li'V gS fd lkjh dk;Zokgh e`rd ds ifjokj tuksa ,oa lacaf/k;ksa ds ncko ds }kjk feytqy dj dh xbZ gS vkSj okLro esa et:c lq[kiky cksyus ;ksX; fcYdqy ugha Fkk vkSj blfy;s mls rFkkdfFkr e`R;qdkfyd dFku izn"kZ ih 5 dks fo"oluh; ugha ekuk tkuk pkfg;sA ".
So far as testimony of Gangashankar, Advocate (PW-9) is concerned, the same cannot be believed. Gangashankar, Advocate (PW-
9) having witnessed the alleged occurrence took no steps to take injured to the hospital. Injuries were caused before 06:30 or 06:45 P.M. Sukhpal remained at the Railway Platform. Gangashankar, Advocate (PW-9) had not attended him. He left him at the spot and went to his Village.
The testimony of Shyam Sundar Lal Sharma (PW-4), Laxman Das (PW-7), Kanhaiya Lal (PW-10) and Majida (PW-11) belie the presence of any eye-witness.
In the present case, occurrence had taken place in the evening of 07.05.1983, the statement of Gangashankar, Advocate (PW-
9) was recorded on 29.05.1983 i.e. after twenty-two days of the alleged occurrence. Thus, Gangashankar, Advocate (PW-9) was introduced as an eye-witness at a highly belated stage.
We are conscious that we are in appeal against acquittal, the parameters to cause interference in appeal against acquittal are entirely different then the appeal against conviction.
(13 of 13) [CRLA-260/1989] The trial Judge having appreciated the evidence has formulated one view, which according to us is possible on the facts and circumstances of the case.
The view formulated by the trial Judge cannot be termed perverse rather it is one view which can be drawn taking into account the medical evidence and testimony of the witnesses. Thus, we find no justifiable reasons to disturb the view formulated by the trial Judge merely because as per submission made by the learned Public Prosecutor appearing for the State of Rajasthan another view is possible.
Consequently, we find no merit in the present appeal and the same is, hereby, dismissed.
(VIJAY KUMAR VYAS)J. (KANWALJIT SINGH AHLUWALIA)J. ashok