Uchi Alias Gopal and anr. Vs. State of Rajasthan - Court Judgment

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penal code - sections 452, 324 and arms act--section 27--non-explanation of injuries on person of accused--three inferences of--injuries on person of accused not explained--various contradictions in prosecution evidence--appellants also lodged private complaint--held, accused deserve benefit of doubt.;in a case when the injuries on the person of the accused had been caused about the time of occurrence, or in course of altercation are not explained, it is a very important circumstance from which the court can draw the following inferences: (i) that the prosecution has surpressed the genesis and origin of the occurrence and has thus not presented the true version; (ii) that the witnesses who denied the presence of the injuries on the person of the accused are on most material parts and, therefore, their evidence is unreliable; (iii) that in case there is a defence version, which explains the injuries on the person of accused it is rendered probable so as to throw doubt on the prosecution case.'.... the doubt on the truthfulness of the version of the prosecution is caused by various contradictions and non-explanation of the injuries on the person of the appellants. the appellants have also filed a private complaint in the court of law when the police took no note of their complaint. the court have also framed charges against bheru lal as is proved from the documents produced by the defence. i am, therefore of the opinion that the appellants cannot be convicted on the evidence produced by the prosecution and they deserve to be given the benefit of doubt.;appeal allowed - - 4. learned counsel for the appellants contends that the trial court has failed to appreciate the evidence produced on behalf of the defence. the prosecution witnesses have also failed to explain the injuries on the person of appellant munna and one injury on the person of appellant uchi. this, therefore, clearly shows that no reliance should be placed on the statements of so-called eye witnesses produced on behalf of the prosecution. he, therefore, contends that all the evidence, documentary and oral, produced on behalf of the defence clearly prove that the version given in the fir and by the witnesses produced on behalf of the prosecution is totally unreliable. he has pointed out that the learned trial court has failed to appreciate that a new case totally different from the one described in the fir has been developed by the prosecution at the trial. lt is further pointed out that the learned sessions judge has failed to appreciate that pw 3 bheru lal has stated that the sword was brought by appellant munna after the demand of money was made, whereas the other witnesses have deposed that when threat was given and money was demanded, uchi was armed with sword. learned counsel has also pointed out that the learned trial court has failed to appreciate that the place of occurrence is busy market, but not a single witness of the locality has been produced to support the prosecution story. suresh chand sharma, learned public prosecutor has on the other hand supported the judgment of the trial court and has stated that the prosecution witnesses are totally reliable and the appellants have been rightly convicted and sentenced by the trial court. it has been stated by them that at the time when munna was sitting at the shop of sugar cane, shiv ratan s/o bheru lal came and when munna told him that his father was sucking blood of poor people, shiv ratan took 'datali' (which is used in cleaning sugar cane) and struck munna with it. he has also denied that these injuries caused to him and his son as well as the appellants with dantali lying at the sugar cane shop of the appellants. (ii) that the witnesses who denied the presence of the injuries on the person of the accused are on most material parts and, therefore, their evidence is unreliable;inder sen israni, j.1. this is a criminal appeal under section 374(3) cr. p.c. against the judgment dt. 26-7-1978 of learned sessions judge, ajmer convicting and sentencing the accused appellants as under:uchi alias gopalunder section 452 i.p.c. 2 years ri and a fine of rs. 200/- and indefault of payment of fine further 1 month'rigorous imprisonment;under section 324 for 2 years ri and a fine of rs. 200/- incausing simple hurt to default of payment of fine, furtherbheronlai 1 month' ri;under section 324 for 2 years ri and a fine of rs. 200/- and incausing simple hurt to default of payment of fine, 1 months ri;shivratanunder section 27 of one years' ri and a fine of rs. 100/-inarms act default of payment of fine 15 days ri;under section 394 5 years ri and a fine of rs. 300/- indefault of payment of fine, further 2months ri;manna alias brahma prakashunder section 324 2 years' ri and a fine of rs. 200/- inrea d with section 34, i.p.c., 114. default of payment of fine, further ri fori.p.c. for causing hurt to 2 months;bheron lalunder section 324 for 2 years ri and a fine of rs;200/- in defaultcausing hurt to shiv ratan of payment of fine further 1 months ri;under section 394. i.p.c. 5 years ri and a fine rs. 300/- in default,further 2 months ri.all the sentences were to run concurrently.2. briefly, the facts of the case are that pw 3 bheru lal lodged an fir at police station, sadar kotwali ajmer on 6-10 1976, where in, it was stated that the appellants criminally trespassed in his shop when he was sitting there at about 5.45 p m. it was alleged that appellant uchi alias gopal demanded a sum of rs. 1000/-. he was armed with naked sword. appellant munna alias braham prakash said that if money is not paid, he will kill him. appellant uchi then gave two blows with sword to bherulal when shivratan s/o bheru lal attempted to intervene, two blows were given to him by uchi with sword. a case was, therefore, registered under sections 307/452 i.p.c. and section 27 arms act. the appellants were arrested and after usual investigation, a charge sheet was submitted against them. learned magistrate committed the case to the court of sessions. the charges under sections 452, 394, 307 i.p.c. and section 27 arms act were framed against uchi. charges under sections 452, 394, 307/34 and 114 i.p.c. were framed against appellant munna. the appellants denied the charges and claimed to be tried. learned sessions judge after recording evidence of the prosecution, examining the accused persons under section 313 cr. p.c. and after hearing arguments of both the sides, found the accused appellants guilty and convicted and sentenced them as indicated above.3. i have heard mr. s.k jain on behalf of the appellants and mr. suresh chand sharma, learned public prosecutor and also perused the record of the trial court.4. learned counsel for the appellants contends that the trial court has failed to appreciate the evidence produced on behalf of the defence. the prosecution witnesses have also failed to explain the injuries on the person of appellant munna and one injury on the person of appellant uchi. this, therefore, clearly shows that no reliance should be placed on the statements of so-called eye witnesses produced on behalf of the prosecution. it has been pointed out that the eye witnesses of the occurrence have been produced on behalf of the defence also, which have been ignored. it is further pointed out that dw 2 shri v.d. bhargava, advocate had sent the information ex. s/9 to the superintendent of police, ajmer regarding the correct version of the occurrence under 'certificate of posting' (ex. s/a/10). d.w. 5 kailash has stated that his shop is opposite to that of bheru lal and was closed on the day of occurrence. he has pointed but that ex sa/11 is the copy of order of learned munsif and judicial magistrate no. 3, ajmer, where by charges against bheru lal and shiv ratan were framed under sections 324 and 324/34, i.p.c. regarding the same occurrence. he, therefore, contends that all the evidence, documentary and oral, produced on behalf of the defence clearly prove that the version given in the fir and by the witnesses produced on behalf of the prosecution is totally unreliable. he has pointed out that the learned trial court has failed to appreciate that a new case totally different from the one described in the fir has been developed by the prosecution at the trial. in the fir, both the appellants were shown to have criminally trespassed in the shop of bheru lal however, at the trial stage bheru lal has stated that munna never entered his shop and when both the appellants came therefor the first time, uchi was not armed with naked sword as mentioned in the fir. bheru lal has stated in his statement that the sword was subsequently brought by munna and given to uchi, which casts serious doubt on the veracity of the prosecution case. it is pointed out that pw 7 shiv ratan says that appellant munna entered the shop, but pw 3 bheru lal denies the same. there is thus, material contradiction in the statements of the eye witnesses produced on behalf of the prosecution. lt is further pointed out that the learned sessions judge has failed to appreciate that pw 3 bheru lal has stated that the sword was brought by appellant munna after the demand of money was made, whereas the other witnesses have deposed that when threat was given and money was demanded, uchi was armed with sword. this according to the learned counsel, amounted to material inconsistency in the story of the prosecution, benefit of which ought to have been given to the appellants. learned counsel has also pointed out that the learned trial court has failed to appreciate that the place of occurrence is busy market, but not a single witness of the locality has been produced to support the prosecution story. even, the investigating officer did not examine any shopkeeper of the market on the day of occurrence, i.e., 6-7-1976 it was only on 11-10-1976 that he examined pw 8 keshav, pw 11 ram kishan and pw 4 padam chand. these witnesses have deposed on oath that their statements were not recorded by the police. this, therefore, shows that the investigating officer has wrongly shown to have recorded their statements and thus, the investigation has not been conducted fairly. it is contended that the prosecution has produced only the interested witnesses. pw 5 bhanwar lal is the muneem of bheru lal, pw 6 satya prakash is brother-in-law of shiv ratan, who is son of bheru lal. pw 1 prabha chand, pw 2 suresh chand and pw 6 satya prakash are friends and pw 10 shrigopal is on inimical terms to the accused. therefore, their testimony should have been viewed with caution and ought to have been corroborated by the independent witnesses. it is pointed out that pw 2 suresh chand and pw 1 prabha chand as per their own version are interested witnesses as they are shown to be the chance witnesses. they are interested in pw 3 bheru lal is also evident from the fact that they were present on 6-10 1976 at the time of occurrence and also on 7-10 1976 when the site plan was prepared and again on 25-10-1976 when the alleged recovery of the sword was made. however, the learned trial court has not believed the recovery of the sword. therefore, the testimony of these witnesses itself becomes doubtful. even though pw 1 prabha chand and pw 2 suresh chand were examined in the court on 25-8-1977, but they were present in the court on 27-9-1977 also when pw 3 bheru lal was examined. it is, therefore, urged that the trial court has erred in holding the accused appellants guilty and' they deserve to be acquitted.5. mr. suresh chand sharma, learned public prosecutor has on the other hand supported the judgment of the trial court and has stated that the prosecution witnesses are totally reliable and the appellants have been rightly convicted and sentenced by the trial court. he has submitted that in any case, even if the charge under section 394 i.p.c. is not proved, the charges under sections 324 and 452 i.p.c. are amply proved.6. the appellants in their statements recorded under section 313, cr.p.c. have stated that they have been falsely implicated by the prosecution. it has been stated by them that at the time when munna was sitting at the shop of sugar cane, shiv ratan s/o bheru lal came and when munna told him that his father was sucking blood of poor people, shiv ratan took 'datali' (which is used in cleaning sugar cane) and struck munna with it. bheru lal also came there and he also took the datali, which was snatched from his hand and in that process, he received injuries. both the appellants also received injuries in this scuffle.7. coming to the evidence of pw 1 prabha chand who is said to be the eye witness, has stated that he saw both the appellants inside the shop of bherulal while he was passing through there. munna was shouting that if bherulal is not giving rs. 1000/- he should kill him. bherulal told them that he has no money. thereupon, munna told him to strike bherulal with sword. thereafter munna went to take the sword from the small room, which is on rent with the appellants and it situated opposite the shop of bheru lal, to bring the sword. he brought the sword and gave it to uchi who struck him with sword twice. he has also identified the blood stained kurta (ex. 1) and handkerchief, which belonged to bherulal. the trial court has remarked that both these articles were not in sealed packets. the witness has further stated that when he reached the shop of bheru lal, munna had sword in his hand according to him, he forgot to tell the same to the police. he has also stated that when the site map was prepared srigopal suresh chand and satya prakash witnesses were present. he has specifically denied that bherulal, pw 3 was not present, however bherulal in his statement has stated that he was present when the site map was prepared. bherulal has also stated that munna did not come inside the shop. thus his statement creates clear doubt about his alleged presence at the time of quarrel.8. pw 2 suresh chand, who is also said to be an eye-witness, has stated that munna was shouting that if bherulal does not pay money, he should be killed with sword, which munna already had in his hand and he handed over the same to appellant uchi, who struck bherulal with sword. in his cross examination, however, he has stated that bhanwarlal pw 5 had come to call from his shop and when he reached the spot, the police was already present and was making investigation. therefore, his version of being an eye-witness to the whole incident is also doubtful.9. pw 3 bherulal has stated that both the appellants came to his shop and demanded rs. 1000/- from him. when he refused to give, uchi asked munna to bring sword from the small room, which is situated about 50 steps from his shop and munna went and brought the same. the sword was handed over to uchi. munna told him that if he does not give money, he should kill him, and uchi struck him with sword. he has stated that shivratan, his son tried to save him and snatched the sword from uchi. thereafter many people came at his shop including pw 1 prabha chand, his muneem pw 5, bhanwar lal and satya narain. he has also recognised his kurta and handkerchief, which belonged to shivratan. he has stated that previous to this incident, there was no quarrel between him and the appellants. he has also stated that none of the appellants tried to snatch money from the cash-box lying at the shop he has further stated that when at the time appellant uchi struck him with sword, he did not make any demand of payment of money. he has denied that during this incident any injuries were caused to the appellants. he has also denied that the quarrel took place near the shop of appellant, which is about 500 steps away from his shop, near allahabad bank. he has also denied that these injuries caused to him and his son as well as the appellants with dantali lying at the sugar cane shop of the appellants. pw 5 bhanwar lal is muneem of pw 3 bherulal. he has stated that when he reached the shop of bherulal, uchi and munna both were standing in-side the shop and sword was in the hand of uchi and bherulal had injuries on his head and hand. shivratan tried to save his father, on account of which he was also injured. he further says that lot of people had collected outside the shop. thereafter, he went to call suya prakash, suresh and prabha chand from ghee mandi, who came and tried to intervene. he has admitted in cross that. ghee mandi is at a distance of 330 steps from the shop of bherulal. he has further stated that police station kotwali is nearer to the shop of bherulal than the place from where he went to call the witnesses. when enquired why he did not go to kotwali immediately rather than to call the witnesses he stated that he went to call them so that they may come and intervene to save the situation.10. from the statement of this witnesses, it is clear that he was not present in the beginning when the quarrel took place and in between went to call the witnesses, which is 300 steps away from the place of occurrence. he is also muneem of bherulal. from his statement he cannot be termed to be witness who has seen the whole incident. it is also strange why he did not immediately go to inform the police at kotwali.which he crossed and went further to bring the witnesses mentioned by him. it was only natural that he should have immediately informed the police, if he wanted to save the situation.11. pw 7 shivratan is son of bherulal. he has stated that uchi demanded money from his father and when he refused to give, munna told uchi to call him, if he does not pay the money. thereupon, uchi who had sword in his hand, struck his father with sword. his father saved himself by bending down and received injuries on left side of his head and also on his hand when uchi struck again with sword. he tried to snatch the sword from uchi, who tried to strike him also. he has stated that big crowd had collected out side his shop at that time including, prabha chand, suresh chand, srigopal and satya prakash. he has stated in cross that both the appellants had come inside the shop.12. pw 8 keshav is the only witness of the locality, who has been declared hostile by the prosecution. his shop is situated at a distance of 10-12 steps from the shop of bherulal. he has stated that he heard the noise & saw the people running towards allahabad bank. from the statement of this witness, the probability of the version given by the appellants that the quarrel took place at their shop of sugar cane near allahabad bank is supported. 13. pw 10 srigopal has stated that in the beginning both the appellants were standing out-side the shop and thereafter both entered the shop and then uchi who had sword with him, struck bherulal with the same. shivratan s/o bherulal tried to snatch the sword from his hand he has stated in cross that he had filed a report against the appellants under section 394 i.p.c., but has expressed his inability to show whether they were acquitted in the same.14. pw 19 dr. a.c. nama who examined bherulal and shivratan, has stated that these injuries could not be caused with dantli. but has also stated that he cannot distinguish between the injuries caused by sword and those caused by any other sharp object. he agreed that dantali is a sharp object. he also stated that injuries caused to shivratan can be caused while snatching any sharp object. he has also stated that injuries no. 2 caused on the person of bherulal can be caused by a sharp weapon. he has stated that dantali is also a semi circular in sharp. he has stated that blood must have oozed out on account of injury no. 2 caused to bherulal.15. now, coming to the evidence of defence. dw 1 is dr. surya deva, who has deposed that he was posed as medical jurist in the jln hospital on 19-10-1976 and had examined the appellants. he has stated that there were 7 injuries on the person of munna and one injury on the person of uchi he has also stated that the injuries were about 10-15 days old. this witness has not been cross-examined by the prosecution. ex. d/7 is the injury report of munna, ex. d/9 is the injury report of uchi and ex. d/9 is the private complaint of the same incident, which was filed by the appellants against bheru lal. ex. d/ll is the charge sheet against bheru lal framed by the court under section 323 i.p.c. and 324 i.p.c. read with section 34 i.p.c. d/w 3 b.d. bhargava, advocate has stated that he had sent complaint on behalf of the appellants to the superintendent of police regarding the same incident, on 6-10-76, the copy of which is ex/9 and ex./10 is the postal receipt of the came.16. from the evidence discussed above, it will be seen that no witnesses of the locality have been produced on behalf of the prosecution, even though it is stated a crowd had collected out side the shop at the time when the incident took place. the trial court has disbelieved the recovery of sword also. the blood stained kurta and handkerchief were not produced in sealed cover in the court. so, these articles cannot be connected with the incident. no blood marks were found on cloth sheet spread over shop. the injuries on the persons of accused appellants have not been explained by the prosecution witnesses. the charge on uchi as framed by the trial court is that on 6-10-76 at about 445 p.m. he went to the shop of bheru lal shiv ratan, situated in naya bazar, ajmer with intention to cause hurt to bheru lal and shiv ratan armed with sword and entered their shop and thus committed offence under section 452 i.p.c. in ex. p. 5, fir, bheru lal has stated that when the appellants entered the shop and demanded money, uchi had naked sword in his hand, where as in his statement, bherulal has dearly stated that munna went to bring the sword from the room situated at the distance of about 50 steps from their shop. it is also pertinent to note that in ex. p 5 fir, bheru lal has given the names of suresh sharma, prabha chand, bhanwar lal and satya prakash to be the eye witnesses of the incident, who came to same him. however, in ex. d/5, which is report of rojnamcha lodged by bheru lal, does not contain any names of the eye witnesses as stated in ex. p 5. on these grounds a shadow of doubt is cast on the case of the prosecution.17. in the case of sevi and anr. v. state of tamil nadu and anr. 1981 cr. lr (sc) 222, their lordships of the supreme court held that if the eye witnesses are partisan no reliance can be placed on their evidence. it was further observed that if the injuries caused on the person of accused are not explained by the prosecution, the conviction in such a case is not justifiable.18. in the case of laxmi singh & other v. state of bihar 1976 cr. lj 1736, their lordships of the supreme court observed that in a case when the injuries on the person of the accused had been caused about the time of occurrence, or in course of altercation, are not explained, it is a very important circumstance from which the court can draw the following inferences:(i) that the prosecution has suppressed the genesis and origin of the occurrence and has thus not presented the true version;(ii) that the witnesses who denied the presence of the injuries on the person of the accused are on most material parts and, therefore, their evidence is unreliable;(iii) that in case there is a defence version, which explains the injuries on the person of accused it is rendered probable so as to throw doubt on the prosecution case.their lordships of the supreme court while observing this, have relied upon the cases reported in air 1968 sc 1281 and air 1975 sc 1674. in the instant case also the doubt on the truthfulness of the version of the prosecution is caused by various contradictions and non-explanation of the injuries on the person of the appellants. the appellants have also filed a private complaint in the court of law when the police took no note of their complaint. the court has also framed charges against bheru lal as is proved from the documents produced by the defence. i am, therefore, of the opinion that the appellants cannot be convicted on the evidence produced by the prosecution case and they deserve to be given the benefit of doubt.19. in the result, this appeal is allowed. the conviction and sentences passed against the appellants by the trial court are set-aside and they are acquitted of the charges levelled against them. the appellants are on bail and need not surrender to their bail bonds.