Mahesh Kumar vs State Of Rajasthan And Ors

Appellant has filed the appeal challenging the order dated 10.05.2019 passed by the Trial Court, whereby, respondents no.2 to 4 were acquitted of the

charges framed against them.

Respondents no. 2 to 4 had faced trial in FIR No. 142 dated 03.10.2008 registered at Police Station Thoi, District Sikar under Section 302/34 Indian

Penal Code, 1860 (hereinafter referred to as 'IPC').

Prosecution story, in brief, is that on 30.09.2008 Sanwarmal nephew of the complainant was present with him.

At about 8.00 a.m. Sanwarmal was standing outside the house. Sewa Ram, Kanaram and Omprakash stopped Sanwarmal in connection with dispute

relating to boundary and gave him kick and fist blows. As a result, Sanwarmal suffered internal injuries and was removed to Shrimadhopur for

treatment. Sanwarmal was referred to Jaipur for treatment. Sanwarmal was got admitted in Durlabhji Hospital, Jaipur where he succumbed to his

injuries on 02.10.2008 at about 4.30 p.m. After completion of investigation and necessary formalities, challan was presented against the respondents

no.2 to 4.

Charges were framed against respondents no.2 to 4 under Section 302/34 IPC.

Respondents no.2 to 4 did not plead guilty to the charges against them and claimed trial.

Trial court ordered the acquittal of the respondents no.2 to 4 vide order dated 10.05.2019. Hence, the present appeal by the complainant.

We have heard learned counsel for the complainant and have gone through the record available on the file carefully.

Learned Trial Court while ordering the acquittal of the respondents no.2 to 4 has taken in consideration the fact that there was delay in lodging the

FIR. Incident had occurred on 30.09.2008, whereas, FIR was lodged on 03.10.2008. There was no cogent explanation with regard to delay in lodging

the FIR especially when the case of the prosecution allegedly rested on eye-witness account.

It has been further noticed by the trial court that as per the prosecution, deceased had remained under treatment in Durlabhji Hospital, Jaipur but no

treatment record of the deceased was proved on record to establish the fact that he had ever remained under treatment after the alleged incident. As

per the medical evidence, deceased had not suffered any external injury, but had suffered internal injuries.

It has been further noticed by the trial court that Megha who was alleged to be an eye-witness had informed about the incident to PW-3 and PW-5,

but she had not been examined as a witness, during trial. As a result, the defence did not get an opportunity to cross-examine the said witness. Thus,

the prosecution had withhold material witness in this case.

The view taken by the trial court while ordering the acquittal of the respondents no.2 to 4 is a possible one.

Hon'ble Supreme Court in Allarakha K. Mansuri vs. State of Gujarat, 2002(1) RCR (Criminal) 74,8 has held that where, in a case, two views are

possible, the one which favours the accused, has to be adopted by the Court.

Similarly, in Mrinal Das & others vs. The State of Tripura, 2011 (9) Supreme Court Cases 479, the Hon'ble Supreme Court, after looking into various

judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:-

It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its

extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-

appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition

on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in

favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent

unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court

should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of

acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to

both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire

evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with

only when there are ""compelling and substantial reasons"", for doing so. If the order is ""clearly unreasonable"", it is a compelling reason for interference.

When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of

ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed

Keeping in view the facts and circumstances of the case, no ground for interference by this court is made out.

Dismissed.