State of Rajasthan vs Moolya S/o Bhama And Ors

Appellant-State has filed this appeal challenging the order dated 06.02.1987 passed by the Trial Court, whereby, respondents were acquitted of the charges framed against them.

Prosecution story, in brief, is that two days prior to the lodging of the FIR (on 05.11.1985) Moolya had abused Rajdai and had restrained her from going to the field. Rajdai returned home and narrated the incident to her mother Kajori. At that time, complainant-Rameshi was also present there. Accused Kalayan was armed with stick and accused Moolya was armed with an axe. Sawani and Gulkandi also attacked Kajori. Moolya gave an axe blow on the head of Kajori and as a result, she fell down and became unconscious. When the complainant intervened, she was also inflicted injuries by the accused.

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

Incident in the present case had occurred on 03.11.1985. Kajori was admitted in the hospital for treatment. It has been stated by PW-4 Dr. P. C. Sethi that after admitting injured Kajori in the hospital, he had sent the information to the police. Patient was unconscious and had died on 04.11.1985.

Postmortem examination of the deceased was conducted on 05.11.1985. FIR was lodged on 05.11.1985 at the instance of complainant-Rameshi.

Learned Trial Court has rightly held that the statement of PW-7 Rameshi was not reliable. PW-7 had alleged that she had also suffered injuries in the incident, but she was got medically examined on 05.11.1985. As per the medico-legal report ExhibitP-18, Rameshi was having a stitched wound on her head. However, the treatment record of PW-7 Rameshi prior to Exhibit-P18 was not proved on record. In-case, PW-7 Rameshi had witnessed the incident, she would have immediately lodged the report and would have also got herself medically examined. In her cross-examination, PW-7 Rameshi deposed that she had reached the spot on hearing alarm raised by Kajori and at that time, she had seen Kajori lying on the ground. She had not told anyone in the village as to who had inflicted injuries to her.

PW-6 Sanwali deposed in her examination-in-chief that she had witnessed the incident alongwith her daughter Rameshi. However, in her cross-examination, she deposed that police had not made any enquiry from her. She had not narrated to anyone as to who had inflicted injuries to Kajori or that she had witnessed the incident. She had not made any statement before the police.

In the facts and circumstances of the present case, learned Trial Court rightly came to the conclusion that the delay in lodging the FIR gained significance.

Hon'ble the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, 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 v. 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:

"8) 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"

The view taken by the Trial Court in the facts and circumstances of the present case is a possible view and calls for no interference.

Dismissed.