Judgment:
Raghuvendra S. Rathore, J.
1. The accused-appellant has filed this appeal under Section 374(2) Cr.P.C. against the judgment dated 5.6.85 passed by the learned Additional District and Sessions Judge, Baran in Sessions Case No. 54/83 whereby he has convicted him for the offence under Section 326 IPC, sentence for 3 years R.I. and a fine of Rs. 2,000/- and also for the offence under Section 323 IPC, sentenced for 1 year R.I. and a fine of Rs. 100/-.
2. This case was initiated on a report lodged by Anandi Lal Mali on 7.2.83 at Police Station Mangrol, District Kota (now Baran). It was stated in the report that the informant had gone to his fields to water them by canal water. It is further stated in the report that the informant found that the accused appellant had blocked the flow of water. It is also stated in the report that when the informant reached the field of Latoor Mali, the accused-appellant had asked the informant as to why he had taken water from the canal when he had cleaned the passage of water. The informant replied to him that he would remove the blockade, if caused, while taking the water. Therefore, the accused- appellant Kalu Lal is said to have caused injury to the informant on his shoulder with a 'Fawra'. One Amarchand intervened and thereafter accused Kalu Lal went away to his nearby field.
3. In the report, it was also stated that the mother of the informant, Smt. Kastoori, as threshing grams (Chana) in the field. At about 3.30 pm. when Smt. Kastoori had one to drink water in between the field of Ranglal and Ramnath, the accused-appellant caused injury on her head. On the hue and cry having been raised by the informant and Amarchand, the accused-appellant ran away. On the aforesaid report, the police registered a case for the offence under Section 307 IPC. against the accused appellant for having caused injuries to Anandi Lal and Kastoori. On the conclusion of the investigation, the police filed challan under Section 307 1PC.
4. Thereafter, the case was committed to the Court of Sessions where, on 29.2.S4 charges came to be framed against the accused appellant for the offences under Sections 307, 324 and 323 IPC. The accused-appellant denied the charges. In support of its case, the prosecution produced 11 witnesses during the course of trial. The prosecution had also submitted 13 documents which were duly exhibited. The statement of accused-appellant was then recorded under Section 313 Cr.P.C. In the said statement, the accused denied the fact of having caused any injury to Anandi Lal. On the contrary, he had stated that it was Anandi Lal who caused injury to him. He also stated that no 'Fawra' was seized from him and the entire prosecution story is false.
On the conclusion of the trial, the learned trial Court acquitted the accused-appellant for the offence under Section 307 IPC. But the learned trial Court convicted the accused and sentenced him as aforementioned.
5. The learned Counsel for the appellant has assailed the judgment passed by the learned trial Court on various grounds. He has contended, with all vehemence, that the prosecution version in this case is totally false and concocted. Moreover, according to him, the prosecution has failed to prove its case beyond reasonable doubt and this fact has been partly accepted even by the learned trial Court. The learned Counsel has further contended that the complainant had in this case come with a concocted story due to enmity between the families as both are descendants of a common ancestor and also with an exaggerated version, so much so that even the learned High Court has not found the case to be one of an attempt to murder. Therefore he has submitted that the accused-appellant has not committed any offence and he deserves to be acquitted.
6. On the other hand, the learned Public Prosecutor has supported the judgment dated 5.6.1985. Further, he has submitted that the learned trial Court has thoroughly looked into the material on record and rightly convicted and sentenced the accused-appellant for the offence under Section 326 IPC. He has also submitted that the learned trial Court has not committed any error in arriving at the findings which are based on the prosecution evidence on record.
7. Broadly speaking, the prosecution in this case had come out with the version that an incident took place at about 3:00 p.m. on 7.2.83, when the accused-appellant inflicted an injury by a 'phawra' on the right shoulder of the complainant Anandi Lal. The case of the prosecution further is that having seen the incident, Amarchand intervened and the dispute was pacified. Subsequently, as per the case of the prosecution at about 3:50 p.m., Smt. Kastoori Bai, mother of the complainant Anandi Lal had come to drink water in between the fields of Ranglal and Ramnath. According to the case of the complainant, accused-appellant gave beating to Smt. Kastoori Bai and the said incident was witnessed by Amarchand, Anandi Lal, Sri Kishan and Sita Ram Mali from a far distance.
8. Though the prosecution in this case, as stated above, came out with detailed facts about the incident as well as the participants and the witnesses, it had become selective, in so far as producing the evidence to support its case before the trial Court. The incident had taken place between the field of Ranglal and Ramnath but Ranglal has not been produced by the prosecution, during the trial. Similarly, one Sri Kishan, who had witnesses the incident and he has been so named in the first information report itself, had not been brought before the trial Court. Other persons like Shivlal, Jagannath and the wife of the Kastoori Bai's son, who's presence had been stated by the prosecution witnesses themselves, had not been produced before the trial Court.
The prosecution has preferred to bring in the witness-box only limited witnesses, who were personally interested against the accused-appellant. So far as Kastoori Bai and Anandi Lal are concerned, they are mother and the son. Cases are pending between the accused-appellant and Anandi Lal. The prosecution witness Amarchand is a member of the party of Anandi Lal. Likewise, Sitaram is also having enmity with the accused-appellant. Therefore, the prosecution have presented the case before the trial Court through the persons of their choice.
9. Even then the above mentioned prosecution witnesses are not trustworthy and reliable; So much so, that even the complainant Anandi Lal has changed his version before the trial Court. The learned trial Court in this respect held as under:
bl ekeys esa izFke ?kVuk ds laca/k esa LFkku ?kVuk ds ckcr fu'p; gh Hkzkafriw.kZ fLFkfr gS] D;ksfd vkuUnhyky us izn'kZ ih-9 esa ckcwyky }kjk ca/kk jksdus vkSj ml cU/kk jksdus ds LFkku ij vkuUnh yky ds tkus vkSj ogka dkyw yky }kjk mlds QkoM+h dh ekjuk crk;k gS A fdUrq og vius l'kiFk dFku esa iw.kZr;k cny tkrk gS vkSj ?kVuk yVwj ds [ksr eas vej pUn ds cU/ks ds ikl gksus dh ckr dgrk gS] tks fdlh izdkj fo'koluh; ugh gS D;ksfd vej pUn ds cU/ks ds ikl dkywyky dk >xM+k D;ks gksrk] og esjh le> esa ugh vk jgk gS vkSj ;g lhek rd LFkku ?kVuk ds ckcr izFke Hkkx ?kVuk ds laca/k esa fLFkfr Hkzkafriw.kZ gksus ds rd ls lger gwaA
10. The learned trial Court after having considered the evidence on record, came to the conclusion that the other witnesses were present at the time of incident but had erred in holding that their absence in the witness-box is not fatal because they were standing at a far place. The distance at which the witnesses were standing from the place of occurrence is not material, what is more crucial is, as to whether such witnesses were able to see the incident or not. Therefore the learned trial Court ought to have drawn an inference against the prosecution for not producing the witnesses which had seen the occurrence and they were specifically named by it, at the initial stage.
11. The learned trial Court itself, after considering the prosecution evidence on record came to the conclusion that so far as the first incident (at 3:00 p.m.) is concerned, the same is doubtful. In this respect the learned trial Court had held as under:
tgka rd izFke ?kVuk dk iz'u gS] eS ij fy[k pqdk gwa fd ml ?kVuk ds laca/k esa LFkku ds ckcr egRoiw.kZ vUrZfojks/k gS A LFkku ds vykok Hkh ml ?kVuk ds ckcr lk{; dk fo'ys'k.k djsa] rks eS fQj nksgjkuk pkgwaxk fd v-lk- 6 lhrkjke us bl Hkkx ?kVuk dk leZFku ugh fd;k gS A v-lk- 6 lhrkjke bl ckcr dqN Hkh ugh dgrk gS vkSj v-lk- 8 vej pUn dsoy ;g dgrk gS fd vkuUnh yky] txUukFk] dkyw vkil esa tksj&tksj; ls ckrs dj jgs FksA bl izdkj dkyw }kjk] vkuUnh yky ds dksbZ pksVs ekjrs ns[kuk ;k vkuUnh yky ds dksbZ pksV yxh ns[kus dh Hkh dksbZ lk{; ugh vkus ls] ;g Hkkx ?kVuk] esjh fouez le> ls] fdlh izdkj lkfcr ugh gS vkSj fLFkfr 'kadkizn gS A bl laca/k esa vkuUnh yky ds c;ku dks Hkh ns[ks rc Hkh dFku vkuUnh yky LokHkkfod izrhr ugh gksrk gS] D;ksfd og dgrk gS fd vkuUnh yky us QkoM+h dh ,d dU/ks ij ekjh o og xkao dh rjQ Hkkx x;k A ml pksV ls vkuUnh yky fxj iM+k csgks'k gks x;k Fkk vU;Fkk tckc esa pksV ekjus ;k mldks jksdus dh fLFkfr esa ugh jgk rFkk da/ks dh pksV ls [kwu vk;k ;k ugh] vkfn dksbZ ckr vkuUnh yky ds c;ku esa ugh vkus ls] ;g dFku vkuUnh yky vLokHkkfod izrhr gksrk gS A
12. It is noteworthy that the very foundation of the prosecution case is the incident which took place between Anandi Lal and the accused-appellant at about 3:00 p.m. on account of the dispute with regard to taking water for agriculture field through the passage which was cleared by the accused. Subsequent incident at 3:50 p.m., where the mother of the complainant was injured, is only in consequence of the dispute between the parties which arose earlier, as per the case of the prosecution itself. Otherwise, there is no reason and basis as to why the accused-appellant would cause beating to Kastoori Bai. The prosecution had come with the categorical version that the subsequent event was an outcome of the first one.
13. The present case may be looked further, the prosecution case is that the dispute arose on account of watering the field and it is alleged that the accused-appellant had inflicted injury to the complainant Anandi Lal and subsequently to Kastoori Bai. It is pertinent to mention here that the complainant Anandi Lal had sustained only one injury and that too by blunt object. The injury sustained by Smt. Kastoori Bai is by a sharp edged weapon. Above all, the most important aspect of the case is that the accused-appellant had sustained the injury by a sharp edged weapon. The prosecution witnesses do not deny the fact about the injury sustained by the accused-appellant but they have failed to give any explanation for the same. Dr. Shaikh Abdul Rehman had proved the injury sustained by the accused-appellant (Ex. D/3) which is by sharp edged weapon. The trial Court has also given the finding about the injury sustained by the accused but has held that the same was received by him in relation to the first incident i.e. at 3:00 p.m. Therefore, when the accused-appellant sustained injury by a sharp edged weapon and it was held by the trial Court that the same was received at the time of first incident of 3:00 p.m., wherein the complainant Anandi Lal is said to have received injury at the hands of the accused by a blunt object, in such a situation, prima-facie it appears that the non- explanation of the injury of the accused by the prosecution particularly when the said injury was sustained at the time of first incident, goes to show that the complainant Anandi Lal has suppressed the material facts and the manner in which the incident had taken place. As stated above, even the trial Court has held that the statement of the complainant Anandi Lal is not natural.
14. Even in respect of the injury sustained by Smt. Kastoori Bai, the prosecution had failed to prove on record, as to how and where the same was inflicted. The injuries sustained by the complainant Anandi Lal at the hands of accused-appellant, as per the case of the prosecution, is by blunt object but the injuries sustained by Kastoori Bai and accused-appellant, are by a sharp edged weapon. It may be mentioned here that the prosecution witnesses Sita Ram (PW. 6) has categorically stated that both the parties i.e. Anandi Lal and accused-appellant came to scuffle. Another prosecution witness, Amarchand (PW. 8) has stated that the accused-appellant had pushed the lady and then caused the injury. Another situation which raises a doubt in the prosecution case is that when the accused-appellant is said to have caused a lacerated wound by blunt object to the complainant Anandi Lal than how did he cause injury to Kastoori Bai by a sharp edged weapon. Further, the prosecution came with the case that Kastoori Bai came to the scene of occurrence much later but no proximate cause for the dispute between her and the accused-appellant had been shown.
15. Having considered the initial version of the prosecution case; the evidence produced by it during the course of trial; the categorical finding arrived at by the learned trial Court that the case of the prosecution is doubtful in respect of the first incident; the subsequent incident is connected with the first one, otherwise there was no cause of dispute between the accused- appellant and Kastoori Bai or any reason to inflict injury to her as alleged by the prosecution, I am of the considered view that the prosecution in the instant case has suppressed the genesis of the occurrence and the manner in which the incident took place.
16. For the reasons given herein above, particularly the findings of the learned trial Court in respect of the first incident at 3:00 p.m., in my considered opinion the prosecution has failed to prove its case beyond reasonable doubt. The evidence on record brought by the prosecution is doubtful and* the benefit deserves to be given to the accused-appellant. Moreso, when the accused has himself sustained injuries in the incident and the prosecution has chosen to keep silence, muchless to explain them, further caste a shadow of doubt on the prosecution story.
17. Consequently, the appeal filed by the accused-appellant deserves to be allowed and it is hereby allowed. The impugned judgment passed by the learned trial Court on 5.6.1985 is quashed and set-aside. The accused-appellant is discharged of all the charges levelled against him. He is on bail, his bail bonds stand discharged.