BADAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard learned counsel for the parties. On the basis of the statement of (PW 1) Mst. Jhanjhan recorded on 30th Aug., 1978, the case was registered at Police Station Nadbai. In this statement it has been stated that the plough of Man Singh rammed into the partition boundary which was in between the field of Man Singh and Mewa Ram. On this, Mewa Ram made a protest and a scuffle took place between Man Singh and Mewa Ram. At that point of time, injured Kajori intervened an persuaded Mewa Ram not to have any scuffle. On this, Mewa Ram and his brother Badam (accused-petitioner) attacked Kajori, and the injured (Kajori) sustained injury on the head which was stated to be penetrated wound according to the doctor (PW 4) who examined the injured. In that statement it has been further stated that after some time when his son was taking oxen for water then near,the Kanganwala field Badam gave him a severe beating with lathis, as a result of which he sustained injuries. She further stated that besides her. a number of other villagers had also witnessed the occurrence ; that after sustaining the injuries her son fell down and a crowd gathered there and she got her son removed, to the hospital. After recording the said statement at Primary Health Centre, Nadbai, a case was registered under section 307 IPC. After usual investigation a challan was filed against the accused-appellant. The case was committed to the Court of Sessions and the learned Addl. Sessions Judge No. 2, Bharatpur conducted the trial and that after recording the statements of the prosecution witnesses which were 7 in number the statement of accused-appellant was also recorded under section 313 Crimial P.C. and in that statement, the appellant stated that Kishan Lal was inimical towards, him and other witnesses were under his influence and that he did not give any beating to Kishan Lal. (DW1) Mewa Ram was examined as defence witness. After recording the evidence and hearing the counsel for the parties, the learned Sessions Judge convicted and sentenced the appellant for the offence under section 307 IPC. Hence this appeal.

(2.) The learned counsel for the appellant submitted that as per the statement of the doctor and the contents of the injury report, the injury sustained by Kajori was a penetrated wound which court be caused by a lathi which is blunt weapon in nature. He, therefore, submits that on this point the statements of doctor and the eye-witnesses Kajori and Jhanjhan are not consistent and because of this, the appellant should be given benefit of doubt because as per the statement of Jhanjhan recorded in the F.I.R. the appellant gave beating by lathi which has not been proved to be a pointed weapon because as per the statement of doctor, the injury sustained by Kajori could be caused only by a pointed weapon and not by an ordinary lathi. In view of the principles of law laid down in the case of Halu Vs. State of M.P. (1974 Supreme Court 1936) in the presence of the evidence of the doctor which is inconsistent with other witnesses conviction cannot be based on it as those inconsistencies cannot be ignored and the same is fatal for the prosecution. Under these circumstances it may be stated with certainly that the appellant was not the author of the injury sustained by injured Kajori.

(3.) The learned counsel further contended that as per the facts mentioned in the F.I.R. initially the scuffle took place between Mewa Ram and Man Singh and when Kajori tried to persuade Mewa Ram, then he was given beating. In such a situation Mewa Ram becomes important witness but he has been examined as a defence witness who gave a different story and as per his statement, the appellant was not present at the time of incident and that Kajori injured inflicted lathi blows on his person and thereafter Mewa Ram admitted that he infected lathi blows on the person of Kajori. Although according to the facts mentioned i n the F.I.R. a number of persons should have been there who could have witnesses the occurrence but unfortunately in this case Smt. Jhanjhan (PWI) and (PW2) Kishan Lal have only been examined. It has been proved by defence evidence that Kishan Lal is inimical to the appellant. Mewa Ram has given a statement on oath on this point and his statement cannot be ignored. So it is thus clear that two stories have come on record in this case; one narrated by Mewa Ram and another by Jhanjhan. Under these circumstances it cannot be said with certainty as to under what circumstances, the occurrence took place. It is thus clear that this is a case where genesis of the occurrence has not been proved and in such a situation the accused-persons have been given benefit of doubt and have been acquitted as bail by the various High Courts as well as by the Honourable Supreme Court in various cases. So this is a case where the genesis of the occurrence has not been proved by the prosecution. No explanation is forth coming from the side of the prosecution as to why the other persons who can be said to be the independent witnesses have not been examined by the prosecution.