STATE OF RAJASTHAN Vs. BASTI RAM

JUDGEMENT

(1.) THIS appeal has been filed by the State, after obtaining leave to appeal under Section 378(3) Cr.PC, against the judgment dated January 28,1974 passed by the Sessions Judge, Pali, in Sessions Case No. 11 of 1973. In the Sessions case aforesaid, 25 persons including the respondents Basti Ram, Ram Chandra, Bhanwarlal, Panji and Mohan, were prosecuted. All the respondents were charged with offences under Sections 147, 447, 315/ 149, 324/149 323/149 IPC and accused Basti Ram, Ram Chandra and Bhanwar Lal were charged with offences under Section 302 IPC and accused Panji and Mohan were charged with the offence under Section 302/149 IPC. The Sessions Judge, by his judgment aforesaid, acquitted all the accused persons and thereupon the State filed a petition for leave to appeal. Leave to appeal was granted as against the respondents but was refused as against the other accused.

(2.) THE case of the prosecution is that in village Sojat there is well known as Bera Kundaliya'. The water of the said well was used for irrigating the lands of seven brothers viz, Dhanji, Khushal (PW 41)Poona Ram (PW 22) Kesha Ram (PW 17), Bachna Ram (PW 9) Chunilal (PW 8) and Deepa deceased. There was some dispute between Dhanji on the one hand and Deepa deceased on the other with regard to the irrigation from the said well. On 17th Oct, 1972 at about 10 PM when Deepa was irrigating his fields with the water from the aforesaid well the accused persons, 40 to 50 in number, came in a truck which made two trips. They were armed with Lathies Dhariyas and swords and they started attacking deceased Deepa Ram and caused serious injuries on his person. The accused persons also inflicted injuries on hushal (PW 41), Sona Ram (PW 25), Budha Ram (PW 34), Ghewar Ram (PW 23), Bachna Ram (PW 9), Chunilal (PW 8) Mst. Narayani (PW 1) and Mst. Meera (PW 10), and after assaulting the said persons they returned in the truck. An oral report about the incident was lodged by Chunilal (PW 8) at Police Station Sojat City on October 17, 1972, at 10.30 PM. On the basis of the said report, the FIR (Ex. P. 13) was drawn out at the Police station and a case Under Sections 147, 143, 149, 354, 447, 307, 323 IPC was registered by Saligram (PW 30) who proceeded to the scene of occurrence and conducted spot investigation Deepa died on 18th Oct, 1972. at about 3 PM in the Hospital at Sojat and an autopsy on his dead body was conducted by Dr. D.R Bhandari (PW 43) vide post mortem report (Ex P. 19). The injuries of the other persons who were injured viz Bachna Ram, Kushal Sona Ram, Budha Ram, Ghewar Ram, Chunilal, Smt. Narayani and Smt Meera were also examined by Dr. Bhandari After completing the investigation, the Police filed a charge -sheet against 25 accused persons, including the five respondents and the Munsif Magistrate Sojat committed them for trial to Court of Sessions and thereupon the Sessions Judge, Pali, read over the charges referred to above. The accused persons pleaded not guilty and claimed Jo be tried.

(3.) THE Sessions Judge found that out of these witnesses eye witnesses examined by the prosecution all except Chuni Lal (PW 8) and Smt. Meera (PW 10) have been declared hostile and that in so far as Smt. Meera (PW 10) as concerned, she has stated that on account of darkness she was unable to say as to who had participated in the occurrence, and, therefore, the participation of the accused persons in the occurrence is not established from her evidence. With regard to the testimony of Chunilal (PW 8) the Sessions Judge held that in the Committal Court he had not supported the prosecution case and he had been declared hostile. The Sessions Judge also found that Chunilal has stated that he was unable to say as to who had assaulted Deepa deceased, in as much as Deepa had been assaulted before he reached the scene of occurrence and that in view of his statement (Ex D. 1) recorded before the Committal Court, it could not be said that he was in a position to identify the assailants. The Sessions Judge, therefore, held that reliance could not be placed on the testimony of Chunilal (PW 8) The Sessions Judge also held that it had not been established from the evidence on the record that the accused persons had arrived at the scene of occunence in a truck. As regards weapons (Lathies) said to have been recovered at the instance of the accused persons, the Sessions Judge held that, the prosecution had not adduced any evidence that the Lathies were actually used during the course of the occurrence and no blood was found on the same. In view of the findings aforesaid, the Sessions Judge held that the prosecution has failed to establish the case against the, accused persons beyond reasonable doubt and, therefore, Sessions Judge acquitted all the accused persons. Hence this appeal.