CHHITA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal by special leave is against the judgment of the high court dated 7/04/1978, convicting the appellants for an offence punishable under S. 307 Indian Penal Code and sentencing them to undergo imprisonment for five years. We have heard learned counsel for the appellants and the respondent. The injured witness Public Witness 6 sustained 21 incised wounds. This cannot be disputed. However, 'his subsequent conduct and various statements made by him during investigation and trial render the entire prosecution story suspect. He is the only eye-witness to the incident. He made a statement on 3/06/1976, which is marked as Ex. D-3. In this he gives a version different from one given to the police. As per this statement, he has said that he went along with Prahlad and Jiwan from Delhi in order to recover the girl. in relation to whom the offence took place. At the time of cross-examination he pave an affidavit (Ex. D-4) dated 29/06/1976. which purports to bear his thumb impression according to which he is reported to have said that the police were setting statements by him recorded at their pleasure and were trying to protect the real culprits, namely. Jiwan and Prahlad. He is alleged to have put his thumb impression upon an application of the same date addressed to the Judicial Magistrate offering to give statement before the court. This application is Ex. D-5 which was also produced when he was cross-examined. Exhibit D-6. dieted 1/07/1976 is another affidavit to the same effect. He engaged a lawyer, examined as DW 3. who filed a complaint in the court of Judicial Magistrate against Jiwan and Prahlad on 24/07/1976 which is Ex. D-7. This complaint was ultimately dismissed for default on 4/08/1976.

(2.) Regarding the conduct of this witness the learned Sessions judge observed that the complainant was not a wholly reliable person. However, the learned Sessions Judge sought help from the evidence of Public Witness 1 and Public Witness 2 to extricate Public Witness 6. Public Witness 6 denied all the statements. He said that it was made under duress. The High court has observed that there was an attempt on the part of Public Witness 6 to give a different turn to the story after 3/06/1976. The High court notes that the complainant had impleaded Jiwan and Prahlad in his subsequent statement, but chose to accept his evidence because on further interrogation he repeated his initial story.

(3.) After giving our careful consideration, we find that the prosecution has not come to court with the true story and the conductof Public Witness 6 leaves considerable doubt in our minds as to what really happened. In our opinion the appellants are entitled to the benefit of doubt. We set aside the conviction and sentence and allow this appeal. The appellants need not surrender. Their bail bonds are discharged.