M.B. Sharma, J.
1. S.B. Criminal Appeal No. 117/73 and D.B. Criminal Revision arise out of the judgment of the learned Additional Sessions Judge No. 2, Jodhpur, and as such are being disposed of by a common judgment.
2. The case of the prosecution, in brief, is that in the intervening night of 13th, 14th June 1959. Mst. Parwati (P.W. 2) was sleeping on the roof of her house alongwith her two daughters. At about 4 a.m. somebody struck blow with a dagger as a result of which she was awakened and notices that accused Bhanwarlal and one Shrikishan were standing by her side. She also saw that accused Bhanwarlal had a dagger in his hand and seeing her awake, accused Bhanwarlal got down from 'chhajja' and ran away todays the lane The other person Shrikishan also tried to run away but when he was on the roof. Smt. Parwati tried to catch him and Shrikishan inflicted knife injuries on her cheek and right hand and ran away. Smt. Parwati went the hospital but she was asked first to go to the police station and so she went to the police station, Udaimandir Jodhpur. She lodged report Ex. P. 5 at 5.45 a.m. After that, she went to the hospital and she was examined by Dr. Hargovind (P.W.1) at 7 a.m. on 14th June 1959 Doctor Hargovind found the following injuries on her person:
1. Incised wound 4' x 1/2' x bone deep on the central part scap lying across the head.
2. An incised wound 1 1/2' x 1/2' x muscle deep on the right cheek.
(3) Incised wound 1' x /12' x skin deep on lying 1' above injury No. 2.
(4) Incised wound 3/4' x 1/8' x skin deep on the dorsum of right hand.
(5) Incised wound 3/4' x 1/4' x skin deep on the medial margin of right thumb, over the terminal phalanx.
3. All the injuries were caused by sharp weapon. On x-ray a fracture, depressed in the fronto-parietal region was noticed and hence injury No. 1 was grevious. The police, thereafter, took the investigation, and submitted a final report on July 31, 1959. Mst. Parwati was not satisfied with the police investigation and, therefore, she filed a complaint under Sections 307 345(sic), 326, and 324, I.P.C. against the accused-appellant Bhanwarlal' and one Shrikishan Head Constable. The Magistrate took cognizance of an offence against both but the proceedings against Shrikishan were dropped under Section 204A(3), Cr. P.C. (Old) as he could not be served. The case proceeded against the accused Bhanwarlal. The Magistrate convicted and sentenced the accused Bhanwarlal under Sections 326, and 458 I.P.C. vide his judgment dated 10-23-1961. The accused Bhanwarlal went in appeal and the same was accepted and he was acquitted by the learned Sessions Judge, Jodhpur under his judgment dated February 13, 1962. Smt. Parwati then got special Leave against acquittal from this Court and a learned Single Judge of this Court under his judgment dated February 13, 1963, allowed the appeal and set aside the order of acquittal passed by the learned Sessions Judge and sent the case back to the District Magistrate, Jodhpur with a direction that he send it to some other Magistrate for a trial. The Magistrate then committed the accused to the Court of Sessions and learned Additional Sessions Judge No. 2, Jodhpur, on November 25, 1972, framed charge under Section 459 I.P.C. against the accused Bhanwarlal.
4. On behalf of the prosecution, during the course of Sessions trial, as many as six witnesses were examined, thereafter, the accused was examined under Section 342, Cr. P.C. (Old) to explain the circumstances appearing against him in the evidence of the prosecution witnesses. Accused stands on a bare plea of denial. According to the accused, Mansingh and Kaluram witnesses are 'Dharm Bhai' of Smt. Parwati Kaluram is a servent of Man Singh. Ayub Khan was on visiting terms with Smt. Parwati and it was under h is influence that the witnesses were deposing against him. Ayub Khan and Smt. Parwati had filed a suit for damages against him and as a result of enmity, he has been falsely implicated. Accused examined five witnesses in defence. The learned Additional Sessions Judge convicted the accused under Section 459, I.P.C. and sentenced him to undergo six months' rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine, the accused has been ordered to further suffer one month's rigorous imprisonment.
5. The accused has preferred an appeal against his conviction and sentence and Smt. parwati has preferred a revision for enhancement of the sentence.
6. We have heard Mr. B.L. Kachhawa, learned Counsel for the accused appellant Bhanwarlal and the Public Prosecutor, and have also gone through the record of the case. The contention of Mr. Kachhawa, learned Counsel for the accused is that Smt. Parwati (PW.2) is not a witness of sterling worth. In her first report to the police station she had named Shrikishan, Head Constable as an accused and when the police filed a final report against both the accused persons, namely, Bhanwarlal accused-appeallant and Shrikishan, Smt. Parwati filed a complaint against both, and the Magistrate took cognizance of an offence on complaint against both the persons. But when she appeared in the court she gave a categorical statement that Shrikishan was not that person who had inflicted blows on her. He, therefore, contends that in these circumstances, it will not be safe to rely on the statement of Smt. Parwati so far as the accused-appellant is concerned.
7 The learned Additional sessions Judge has dismissed certain contradictions in the report Ex. P.5 and statement of Smt. Parwati (P.W. 2) before the Court on the ground that there are no material. He has also not attached any importance to the omission in the F.I.R. (Ex.P.5) about the presence of a lantern at the place of occurrence and identifying the accused in that light. The learned Judge has also not placed much importance on toe litigation which was going on between Smt. Parwati (P.W.2) and Bhanwarlal, rather it has been held by him that there was no reason for the accused to have gone to the house of Smt. Parwati to satisfy his sexual lust as the accused was on bad terms with her and it was perhaps to take revenge against Mst. Parwati that the accused went there As we shall presently show, we are unable to place reliance on the statement of Smt. Parwati (P.W. 2) so far as the identity of accused Bhanwarlal is concerned. Besides the fact that having made clear allegations in the first information report (Ex P. 5) and the complaint lodged that along-with accused Bhanwarlal there was also one Shrikishan, Head Constable, when she appeared in the court she made a categorical statement that Shrikishan was not the co-accused alongwith Bhanwarlal, she has made many improvements in her statements in the Court which to us appear to be material. She stated that Bhanwarlal accused had lodged the report against Ayubkhan and Kalu Ram under Section 420, I.P.C. She was also beaten in police station. She also states that before the present incident, Bhanwarlal had lodged a complaint under Section 107 I P.C. against her and she had filed a suit for compensation against Bhanwarlal which had been decreed and on execution, she had recovered the amount from Bhanwarlal. She also admits in that suit for damages Mansingh and Ayubkhan had appeared as witnesses for her. Thus, she admits that there was long standing enmity in between her and accused Bhanwarlal. She has also stated that the accused and his companion, who, according to her, was Shri Kishan told her that she should allow them to have sexual intercourse with her or also she will be killed. It does not appeal to reason that accused-appellant who undisputably was having strained relations with her will go alongwith another to the house of Smt. Parwati (P.W.2) for sexual intercourse. The learned Additional Sessions Judge has himself observed in his Judgment (at page 66 of the paper Book) that he may accept the contention of the learned Counsel that the accused should not have gone for asking to have sexual intercouase from the lady and there was a long enmity between them but from this, it cannot be said that accused did not go to her house to take revenge. Looking to the statement of Smt. Parwati (P.W. 2) that t e accused had asked her for sexual intercourse, it was not proper for the learned Judge to hold that the accused perhaps went to the house of Smt. Parwati in the intervening night to take revenge against her. We will later on deal with the statement of Mansingh (P.W.3) and Kaluram (P.W.4) from whose evidence, the learned Judge has sought corroboration to the statements of Smt. Parwati (P. W.2). Suffice it to say, for the present that the statements of those witnesses do not inspire confidence Smt. Parwati (P.W.2) in the first information report (Ex.P.50) states that Bhanwarlal at the time of the incident, was wearing black clothes. She does not state that when the occurrence took place it was a moonlit night and that in the moon lit night she could and did identify the accused appellant. She has stated that she cannot say as to whether it was moon lit night or dark night. According to her, there was a lantern burning and in the light of the lantern she identified the accused. It was for the first time that she introduced the lantern in her statement in the Court. A look at Ex.P.5 the FIR will make it clear that there is no mention of lantern, and that in the light of the lantern she identified the accused. Thus, the omission of the existence of a lantern at the time and place of the incident is a serious infirmity in her, statement. The fact that she has introduced lantern in her statement in the court goes to show that she has improved over the case as made in the F.I.R. and has not explained this improvement. There was previous enmity in between her and accused Bhanwarlal, the possibility that she might have named Bhanwarlal in the F.I R. as one of the accused persons as a result of her imagination cannot be ruled out. She did not mention about the presence of lantern in her examination-in-chief in the Court but in the cross-examination voluntered that there was a lantern and in that light she identified the accused. According to her statement in the Court Bhanwarlal was wearing white clothes but in her report Ex.P.5 she clearly stated that Bhanwarlal was wearing black clothes. She was contronted with Ex.P.5 but her explanation is not convincing.
8. Mansingh (P.W.3) as already stated earlier, does not appear to be an independent witness as Smt. Parwati (P.W. 2) has admitted in her statement that Mansingh & Ayubkhan had appeared witnesses for her in a suit for damages filed by her. According to the statement of Mansingh (P.W.3) during those days, he was running a tea Hotel and at 4.30 a.m. he had seen Bhanwarlal going in the lane and at that time he was going from his house towards his shop. Bhanwarlal at that time was wearing a Dhoti and Baniyan and he was having a 'Chaku' or 'Jambia' in his hand. Some other man was following him. When he opened his tea shop, he heard alarm of Smt. Parwati that Shrikishan and Bhanwarlal have beaten her. He went and saw that she was having injuries which were bleeding. She took her to the police station and then to the hospital. He admits the Smt. Parwati is his 'Dharm Bahin'. He admits to have given his statement Ex. D. 5 before the police but he is unable to say as to why it did not contain the names of Shrikishan and Bhanwarlal. He states that he gave this statement to the police but according to him that police did not correctly record it Having admitted that Ex. D. 5 statement was given by him in the police station during the investigation of the case, the omission of the name of the accused Bhanwarlal in it cannot be dismissed lightly Thus, his statement in the court that Smt. Parwati was crying that Bhanwarlal alongwith Shri Kishan had beaten her, cannot be relied upon There appears to be a group of Mansingh, Kaluram and Ayubkhan, and Mansingh admits that Kaluram is his servant and Ayubkhan also used to visit the shop. He alongwith Kaluram has appeared as a witness Kaluram (P.W. 4) even denies that he is a servant of Mansingh (P.W. 13). He does not state that he was going to the shop at that time and admits that he used to open his shop 7.30 a. m. according to him, he had gone to ease himself and then he saw that accused was coming towards his house followed by another man. Bhanwarlal had a knife in his hand He admits that Ayubkhan and Mansingh are good friends and he Mansingh carry on business at the same shop, though he is not the servant of Mansingh. He is also not able to say as to whether it was a moon lit night or dark night. He does not say as to how from that distance while easing he could identify the accused. He too admits that he had appeared as a witness for Smt. Parwati against Bhanwarlal. The learned Additional Sessions Judge has himself observed that even if the statement of Udaram (P.W. 5) is not relied upon there is a still evidence of Smt. Parwati corroborated by other evidence. Thus the learned Judge does not appear to have placed much reliance on the statement of Udaram (P.W. 5). That apart, Udaram (P. W. 5) was working at the Flour Mill of Ayubkhan, who has already stated above, was close to Smt. Parwati (P.W. 2). He admits that he sleeps at his house but that day he slept at the house of Ayubkhan. He states that from the roof of the house of Ayubkhan, which house is adjacent to the house of Smt. Parwati, he saw that the accused was giving blows with a dagger to Smt. Parwati. According to his statement, the other companion of Bhanwarlal was wearing black clothes where as Bhanwarlal was wearing white clothes. Admittedly, his house is near Jaswant College which is at a far distance from the place of occurrence. Though he has stated that he used to sleep at his house but because he worked at the flour mill in the night and slept there at 4 A.M., but this statement does not appear to be correct. He is in his statement Ex. D 6, dated 12.9.1959, recorded b fore the City Magistrate stated that after working at the flour mill in the evening he slept at the flour mill. He admitted to have given that statement. His presence thus becomes doubtful. He is unable to say whether it was a moon-lit night or dark night. He has not stated as to how from distance of 10 to 12 steps he was able to identify the accused at that odd hours. He also introduced a lantern which was not even stated by Smt. Parwati in Ex.P. 5 First Report lodged by her. In the Court he has stated that the other companion of Bhanwarlal also gave beating to Smt. Parwati with something with which he was armed, but in his statement Ex.D.6 with which he was confronted, he made a statement that he did not see the other companion of the Bhanwarlal beating Smt Parwati. We are unable to place reliance on his statement.
9. The learned Additional Sessions Judge has also placed reliance on the statement of Wali Mohammed (P.W.6). He states that his bullocks were taking water in the morning and he was going in his 'Thela' to lime kilns and he saw that accused Bhanwarlal came from the house of Smt. Parwati by jumping the wall. Sometime, there after, another man also jumped from the house of Smt. Parwati. Bhanwarlal had a naked dagger in his hand He admits that there is another shorter way to go to the lime kilns from Fateh Sagar. According to him, that way was damaged and so he was going through this way. He states that Smt. Parwati met him after about 4 to 5 days after the accurrence and told him to depose for her. His name is not mentioned in the FIR and it goes to show that Smt. Parwati bad not seen him on the day of the occurrence. How could he know that he was a witness and ask him to depose. His conduct that even seeing that a person had jumped from the roof of a house, he did not chase him, did not raise an alarm and made no efforts to apprehend him, is against normal human conduct. We are, therefore, unable to place reliance on his statement.
10. As already stated earlier, the accused in his statement under Section 342 Cr.P.C. (Old) has denied that he went to the roof of Smt. Parwati and caused injuries to her. Having disbelieved the case of the prosecution, so far as the identity of the accused is concerned, it is not necessary for us to discuss the defence evidence.
11. We are of the opinion that conviction of the accused under Section 459 I.P.C. cannot be upheld The appeal is allowed, the conviction and sentence of the accused under Section 459 I.P C are set aside. The accused is acquitted of the offence under Section 459 I.P.C. He is on bail and need not surrender to his bail bonds. The bail bonds shall stand discharged.
12. The appeal of the accused has been allowed and his conviction has been set aside. The revision filed by Smt. Parwati for enhancement of the sentence is hereby dismissed.