State of Rajasthan vs Balia

In this criminal appeal the State of Rajasthan is challenging the validity of the judgment dated 1.6. 1992 passed by the learned Sessions Judge, Jodhpur in Sessions Case No. 168/1991 whereby the learned trial court acquitted the respondent from the charge levelled against him under Section 302 IPC.

As per facts of the case, the complainant PW--12 Suraj Kumar lodged a written report (Ex. P/10) at 9.30 pm on 9.8.1991 at Police Station Udai Mandir, Jodhpur in which it was stated that he is working on the post of Mistri in Alcobox Factory and deceased Kalu Ram S/o. Duda Ram is also working in the same factory. In the evening of 9.8.1991 at about 6.45 pm he went alongwith accused respondent Baliya @ Balwant Singh to the shop of Kripa Ram and thereafter they went to the house of PW --4 Dhoodki Sasan from her the accused Baliya @ Balwant Singh took half bottle liquor and after consuming the liquor in the house of PW--4 Dhoodki Sasan, they went to the shop of PW--3 Trilok Chand and called deceased by raising voice. In reply to the call made by the accused, the deceased replied that within short time, he is coming. After some time, the deceased did not come and went to the house of PW--4 Dhoodki Sasan and accused alongwith complainant went at the house of PW--4 Dhoodki Sasan and saw from window of kitchen that deceased was talking with PW--4 Dhoodki Sasan. At that time, the accused asked the complainant to stay near the poll and in the evening at about 7.30 when Kalu Ram deceased came out from the house of PW--4 Dhoodki Sasan, the accused inflicted injury by knife upon his stomach and chest and ran away from the place of occurrence and also asked complainant to run away from the place of occurrence. Due to injuries, deceased Kalu Ram fell down and complainant Suraj Kumar immediately rushed to the house of deceased and give information to his mother about the incident. As per fact, the complainant took deceased Kalu Ram to the hospital alongwith his mother in taxi. When they reached the doctors of the hospital declared that he died. As per allegation in the FIR, the accused inflicted injury due to enmity in between accused and deceased taken. Upon receiving written report, FIR No. 264 dated 9.8.1991 (Ex. P/10) was registered under Section 302 IPC at Police Station, Udai Mandir, Jodhpur and investigation was commenced.

The SHO, Police Station Udaipur Mandir, Jodhpur conducted the investigation and after post mortem of the body of the deceased KaluRam obtained post mortem report (Ex. P/13) on 10.8.1991 in which 3 injuries were mentioned by the medical jurist. The statement of witnesses were recorded under Section 161 Cr.P.C. and after usual investigation, charge-sheet was filed in the court of Judicial Magistrate No. 1, Jodhpur from where case was committed to the court of Sessions Judge, Jodhpur. The Sessions Judge, Jodhpur framed charge under Section 302 IPC against the respondent and commenced trial.

In the trial statements of 13 prosecution witnesses were recorded and in all 16 documents were exhibited, thereafter, statement of respondent were under Section 313 Cr.P.C. by the learned trial court in which he said that all the allegations levelled by the prosecution witnesses are wrong and no knife was recovered from him. No evidence was produced by the respondent in his defence.

The learned trial court after hearing both the parties, acquitted the respondent from the charge levelled against him under Section 302 IPC vide judgment dated 1.6.1992 while giving finding that prosecution has not proved its case to connect the respondent with the crime.

Learned Public Prosecutor vehemently argued that finding given by the learned trial court is totally perverse because the allegations levelled in the FIR (Ex. P/10) by the complainant were proved by the prosecution by way of leading trustworthy evidence of prosecution witness but the learned trial court committed an error to acquit the respondent from the charge of murder levelled against him. While inviting attention towards the statement of PW--12 Suraj Kumar and PW--15 Sonu it is submitted that both these witnesses corroborated the allegation made in the FIR, therefore, it cannot be said that prosecution has failed to prove its case in the trial, therefore, the judgment impugned deserves to be quashed and respondent is liable to be punished.

Learned Public Prosecutor further submits that a serious error of law has been committed by the trial court in not accepting the recovery of knife upon information given by the respondent under Section 27 of the Evidence Act because recovery is proved by the Investigating Officer in his statement, therefore, the judgment impugned deserves to be quashed and respondent is liable to be punished for offence under Section 302 IPC.

Per contra learned counsel appearing on behalf of the respondent submits that there is no error in the judgment impugned dated 1.6.1992 passed by the learned Sessions Judge, Jodhpur in Sessions Case No. 168/1991 because the learned trial court considered each and every evidence led by the prosecution and held that prosecution has failed to prove its case to connect the accused respondent with the crime. While inviting attention towards the statement of PW--3 Trilok Chand who was said to be eye witness it is submitted that the said independent witness turned hostile. The incident took place in front of the house of PW-4 Dhudaki but the said witness turned hostile and did not support the prosecution case and as per statement of PW--8 Santram the said witness stated that he is not eye witness of the case but only information was given by witness Suraj Kumar, so also, the witness PW--10 Duda Ram, father of the deceased said that he was informed about incident by PW-- 13 Tulsi Ram and upon his information he went to the hospital. The witness PW--11 Smt. Tulsi mother of the deceased stated that Suraj Kumar came to her house and informed that Kalu Ram inflicted injury by knife and upon the said information she went to the place of occurrence. While inviting attention towards the statement of PW--14 Anand Pal and PW--17 Mahendra Singh it is submitted that these are only the witnesses who carried the articles to be sent for FSL and all these witnesses are not supporting prosecution case.

The argument of the learned counsel for the respondent is that statement of PW--12 Suraj Kumar who is said to be eye witness has been discussed by the learned trial court alongwith the statement of PW--11 Smt. Tulsi Bai and PW--14 Anand Pal and while discussing the entire evidence rightly arrived at with the finding that it is a case in which prosecution has failed to prove its case beyond reasonable doubt, therefore, the finding given by the learned trial court for acquittal of respondent does not require any interference for the reason that trial court has appreciated the entire evidence in right perspective, therefore, this appeal may kindly be dismissed.

After hearing the learned counsel for the parties we have perused the entire evidence. The learned Public Prosecutor has heavily relied upon the statement of PW-1 Mangi Lal before whom the accused Balwant Singh was arrested and knife was recovered. According to the said witness the respondent was arrested on 5.30 pm on 10.8.1991 but in the cross-examination, the said witness said that

Second witness of recovery PW--2 Raju turned hostile and did not prove the arrest and recovery of knife. Meaning thereby, on the basis of statement of these witnesses it cannot be said that prosecution has proved the recovery of knife from the respondent.

The witness PW--3 Trilok Chand who is said to be eye witness turned hostile and did not support the prosecution case. Likewise PW--4 Dhoodki Sasan turned hostile and according to her she was not knowing Suraj Kumar complainant and flatly denied the fact that any incident took place in front of her house on the date of incident.

PW--5 Nar Singh is the witness of Panchanama (Ex. P/6). PW--6 Mega Ram is also witness of preparation of Panchnama of body. Likewise PW--7 Om Prakash is the witness before whom the body was received by him from police and PW--8 Sant Ram turned hostile and did not support the prosecution case. PW--9 Mohan Lal is the witness of preparation of site plan. PW--10 Duda Ram is father of the deceased. He said that Tulsi Ram gave information to him that injury by knife has been inflicted by respondent to his son. Witness Tulsi Ram PW--13 is not corroborating his statement. Further, PW--10 Duga Ram said that my son and accused both were working together and whether they were having any enmity, he don''t know.

The witness PW--11 Smt. Tulsi Bai mother of the deceased stated that at 7.45 Suraj came to her house and informed that respondent Baliya inflicted injury by knife to your son and further said that his son informed her that Kalu has inflicted injury by knife but in the statement recorded under Section 161 Cr.P.C. no such allegation was levelled by the mother Smt. Tulsi Bai which is evident from the answer given in cross-examination where specific question was put to her why in your statement (Ex. P/1) recorded under Section 161 Cr.P.C. the fact of inflicting injury by Kalu is not written, she replied that said fact was narrated by her to the police and why the police has not written in the statement, she don''t know. Meaning thereby, the said witness improved her version in the court.

We have examined the statement of PW--12 Suraj Kumar, author of the FIR. The said witness stated before the court that

The learned trial court while discussing the entire evidence gave finding that as per the prosecution case occurrence took place in front of house of PW--4 Dhoodki Sasan but the said witness turned hostile and specifically said that no such incident took place in front of her house. In the cross-examination, the witness PW--12 Suraj Kumar specifically stated that he has no knowledge about enmity in between the respondent and deceased Kalu Ram. The learned trial court discussed the entire evidence and disbelieved the testimony of PW-12 Suraj Kumar because there is no corroboration from other witness, so also, the witness PW--4 Dhoodki Sasan stated before the court that no incident took place in front of her house and the mother of the deceased Tulsi Bai improved her statement in the court, therefore, we are of the view that learned trial court has rightly arrived with the finding that it is not proper to relied upon sole witness PW--12 Suraj Kumar because his story is not supported by any independent witness even by the lady in front of her house incident was allegedly to be occurred. The witness of recovery did not support the prosecution case.

In our opinion, upon above discussion, no error has been committed by the learned trial court to acquit the respondent from the charge levelled against him under Section 302 IPC. The learned trial court appreciated the entire evidence in right perspective and held that prosecution has failed to prove its case beyond reasonable doubt. After assessing the finding of the learned trial court, we are of the opinion that as per allegation of prosecution occurrence took place on road but, there is no evidence of independent witness to prove its case beyond reasonable doubt, therefore, no error has been committed by the learned trial court for which any interference is called for in the impugned judgment.

In view of the above, the instant cr. appeal filed by the State of Rajasthan is hereby dismissed.