STATE OF RAJASTHAN Vs. MISARIYA

JUDGEMENT

(1.) This appeal has been filed by the State seeking to challenge the judgment of the learned Sessions Judge, Jalore dated 17.12.1986 acquitting all the respondents of all the charges being under Section 147,148, 302 read with Section 149 IPC.

(2.) The necessary facts are that one Babu Ram P.W.I gave information at Police Station Ahore on 6.5.1986 at 9 A.M. (Ex.D-2) to the effect that there exists enmity between them with Meenas, and in the morning when he was in the house he heard a cry that when his brother Ganesha was passing through in front of the house of Meena, Meenas started beating him, therefore, he straight-way rushed to Guda Balotan, and from there he come to the police station by travelling in a bus. He has maintained that he did not go on the spot, and does not know as to who had given beating, and what is the magnitude of the injuries received. Since this information did not disclose any cognisable offence an entry was made in the Rojnamcha, and S.H.O. Gom Singh alleges to have proceeded with Babulal on the spot, and recorded the statement of the victim Ganesha s/o Gena Bheel (Ex.P-23) wherein it was given out, that when he reached in the street wherein the house of Kapura Meena is situate Misariya came from towards the house of Kapura and caught hold of him. Then, Kapura his son Kuiya, Chukiya, Kama, Narsa, and Galba, all by caste Meenas came armed with Lathis and Kulharis, and started giving beating to him with Lathis, as a result of which he fell down, and even thereafter Chukiya inflicted injuries on the right hand, and ribs, and Kama inflicted injuries on left hand, and Narsa inflicted injuries on the feet, and all of them gave him beating badly, giving out that he should be killed, so lying injured he shrieked but nobody intervened, and after he was seriously injured the accused persons left. He has also stated that while he was given beating no local inhabitant came to his rescue. After some time Kalyan Master Sb. and TarJi Purohit came, to whom also he narrated all these things. He stated that in the beating he received injuries on both the hands above elbow, which started bleeding, right scapula got swollen, and ribs have sustained fractures, he had received severe injuries on both the legs, and he is feeling acute internal pain. He had also given out that it was on account of some dispute on the occasion of Holi that the accused persons have given beating. This statement bears the signature of P.W. 14 Investigating Officer Gom Singh, and also purportedly bears thumb mark of the victim Ganesha. On recording this statement a formal First Information Report Ex.P-33 was recorded against the seven respondents for the offence under Section 147, 148, 149, 323, 324, and 307 IPC. However, in the evening the victim expired, therefore, the offence under Section 302 IPC was also added. Earlier the injured was got medically examined vide report Ex.P- 34, and after death post mortem examination was got conducted on 7.5.1986, report being Ex.P-35. After completing necessary investigation a charge sheet was submitted in the Court of Chief Judicial Magistrate, Jalore, where from the case was committed.

(3.) Learned trial court charged the accused persons under Section 147, 148, 149 and 302 IPC. During trial the prosecution examined 16 witnesses, and tendered in evidence 35 documents, while the accused did not lead any evidence in defence, but then tendered in evidence four documents, being the police statement of Babu Ex.D-1, police statement of Gajra Ex. D-3, police statement of Kala Ex.D-4, and the copy of Rojnamcha Ex.D-2. Learned trial court found that except P.W.I and P.W.6 Babu Ram and Gajra who are the informant cum brother of the deceased and his widow, all other witnesses produced as eye witnesses have not supported the prosecution case, and were declared hostile. Then, learned Judge proceeded to examine the evidence of P.W. 1 and P.W. 6, and found, that P.W.I, as a matter of fact, is not an eye witness and his evidence is not reliable. Likewise, regarding P.W.6 also it was found that she does not appear to be an eye witness, or to have seen the incident, and therefore, she cannot be believed. Then, regarding Ex.P-23 the dying declaration the learned trial court found it to , have not been recorded in accordance with the provisions of Rule 6.22 of the Police Regulations, and in para-19 also found other infirmities, rather circumstances casting serious doubt on the reliability of the theory of recording dying declaration, and thus found it to be not safe to rely upon this dying declaration Ex.P-23. Consequently, it was found that the prosecution has failed to lead any evidence against the accused persons, and he acquitted all of them.