RAJU Vs. KHIKHWA @ ANT RAM & OTHERS

JUDGEMENT

(1.) Being aggrieved by the judgment and order dated 11-02-2003 passed by the Vth Additional Sessions Judge, Bilaspur, C.G. whereby and where under the learned trial Court acquitted respondents 1 to 8 for the charges framed under Sections 147, 148, 307 read with Sec. 149, Sec. 302 read with Sec. 149 of the Indian Penal Code, 1860 (in short 'the IPC') by affording benefit of doubt, petitioner/applicant Raju, son of deceased Dhansai and brother of Rajkumar and Ganesh (deceased in the said incident) and also brother of injured eye-witness Janakibai (PW-5) had filed the instant criminal revision under Sec. 397 read with Sec. 401 of the Code of Criminal Procedure, 1973 (in short 'the Code') against the private respondents 1 to 8.

(2.) The instant revision is filed on the ground that conclusion drawn by the trial Court is unwarranted by the evidence available on record, unreasonable, erroneous and also perverse, hence, liable to be set aside. As the witnesses corroborated each other and the trial Court erred in not considering the statement of the witnesses, the view taken by the trial Court is perverse, infirm and palpably erroneous view. Though the case was instituted for the murder of three persons, the trial Court gave judgment on the ground of technicalities, minor discrepancies in the statement of the witnesses which caused real and substantial injustice. The Court below gave undue importance to minor discrepancies, though they were not in relation to actual incident. The trial Court erred in disbelieving the evidence of eye-witness as also the injured eye-witness whose presence cannot be doubted. As the victim and accused persons are well-known, there is no any scope for misidentification or wrong identification. Any difference between the medical evidence and the occular evidence would not affect the prosecution's case adversely. Hence, it is prayed that as the prosecution proved its case against all the private respondents that they have assembled, formed unlawful assembly armed with deadly weapon and caused murder of Rajkumar, Ganesh and Dhansai and also attempted to take life of Janakibai (PW-5), the revision may be allowed and the judgment of acquittal passed' by the learned trial Court may be set aside; further prayed that judgment of conviction and order of sentence accordingly may be passed against the private respondents.

(3.) Brief facts of the case are that on 10-06-2001, at about 02.30 a.m. Raju (PW-3), son of the deceased Dhansai and brother of deceased Ganesh And Rajkumar and also brother of injured eye-witness Janakibai (PW-5) reached to police station Masturi and lodged the First Information Report against respondents 1 to 4. Police registered the First Information Report (Ex.-P/2) against the above four private respondents under Sections 302, 307, 34 of the Penal Code and Crime No.93/2001 was registered. In the said First Information Report, Raju (PW-3) stated that at about 10 along with his father and Janakibai (PW-5) he was going to her elder sister's house and when they reached to the Village Panchayat Bhawan, he saw that respondents Bholi, Khikhwa, Rakesh and Basant were assaulting Ganesh and Rajkumar and also uttering obscene words with threat to kill them. Respondents Khikhwa and Bholi were assaulting by battle axe and respondents Rakesh and Basant were inflicting by club. When his father Dhansai and Janakibai (PW-5) attempted to intervene, they were also beaten by above four respondents. With this, his father Dhansai and elder brother Ganesh succumbed to the injuries at the spot itself and another brother Rajkumar sustained injuries over head, fell down and became unconscious. Janakibai (PW-5) also received injuries over her leg. He saw the incident from some distance. Thereafter, he went to her another sister Ganga and thereafter informed the incident to Sarpanch and Panch; the said persons reached to the spot and noticed dead body of Dhansai and Ganesh, they also noticed Rajkumar in injured condition lying on the ground and also saw the injuries of Janakibai (PW-5). Thereafter, he reached to Police Station Masturi and stated the above facts. Inquest over dead body of Ganesh was prepared vide Ex.-P/17. Regarding deceased Dhansai, police conducted inquest vide Ex.-P/18. Police, during investigation, sent Janakibai (PW-5) and injured Rajkumar for medical examination. Doctor Krishna Mittal (PW-10) examined Janakibai (PW-5) and noticed one lacerated wound of 2 x 2 cms. present over right lower leg, swelling present; he had also noticed that movement of said leg restricted and advised X-ray and opined that injuries may be cause by hard and blunt object. He gave his report Ex.-P/11, though any such X-ray report was not adduced by the prosecution in the charge sheet. Vide Ex.-P/16 injured Rajkumar was also sent for medical examination. Injured Rajkumar died in the hospital during the treatment. Doctor Hemant Dixit (PW-11) conducted the autopsy of deceased Ganesh Ram vide Ex.-P/12 and found following injuries :-