PHOOL SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellants have challenged the judgment dated 17. 9. 2003 passed by the Additional District & Sessions Judge (Fast Track) No. 4, Jhalawar Camp Aklera whereby he has convicted and sentenced the appellants for offences under Sections 148, 323/149, 324/149 and 302/149 IPC. For offence under Section 148 IPC, he has sentenced them to one year rigorous imprisonment and imposed a fine of Rs. 200/- each and to further undergo three months rigorous imprisonment in default thereof. For offence under Section 323/149 IPC, he has sentenced them to six months rigorous imprisonment each. For offence under Section 324/149 IPC. he has sentenced them to one year rigorous imprisonment and imposed a fine of Rs. 200/- each and to further undergo a period of three months of rigorous imprisonment in default thereof. Lastly, for offence under Section 302/149 IPC, he has sentenced them to life imprisonment each and imposed a fine of Rs. 500/- each and to further undergo six months of rigorous imprisonment in default thereof. It is pertinent to point out that the prosecution had charge-sheeted nineteen persons. However, vide impugned order dated 17. 9. 2003, the learned Trial Court had acquitted ten persons and has convicted only nine persons accused appellants before us.

(2.) THE brief facts of the case are that on 16. 9. 1999 the police recorded the Parcha Bayan (Ex. P. 1) of the injured, Phool Singh (PW. 1), at Governmental Hospital, Jhalawar. THE complainant alleged that in the morning, he had heard about a quarrel between Prabhulal resident of Uncha Kheda and Mathuri Lal of his village. THErefore, he along with other persons came to village Bhalta. Around 10-11 A. M. while he, Kanhiram (eventually the deceased in the present case), Keshar Singh, Chhaganlal and Ram Singh were sitting in village Bhalta at the Tea Shop of Jagannath Kumhar, at that time from the side of Thana, Prabhulal, Narayan Singh, Kanhiram, Mohanlal, Pyara, Man Singh, Ramlal, Mohanlal son of Kanwarlal, Ghanshyam and Motilal Tanwar came armed with "lathi". "gandasi" and stone in order to attack them. Meanwhile, Narayan inflicted a "gandasi" blow on the head of the complainant. Phool Singh son of Manna inflicted a "gandasi" blow on the head of Kanhiram, who died. THE complainant and his friends started running towards the field but the accused persons chased and assaulted them. THE accused persons also threw stones on the complainant party. Sabu Bai wife of Motilal, wife of Prabhulal and wife of Narayan also took part in throwing the stones. On the basis of this report, a former FIR, FIR No. 106/1999, was registered for offences under Sections 147, 149, 307 & 302/149 IPC and the investigation commended. Subsequently, the police filed a charge-sheet for the aforementioned offences.

(3.) UNDOUBTEDLY according to the prosecution witnesses, on the fateful day there was a local fair in the village Bhalta. Since the scene of the crime is the bus stand of village, there must have been a lot of hustle and bustle. Even Phool Singh (PW. 1) claims in his testimony that a large number of people had gathered when the appellants were assaulting the complainant party. Hence, independent persons must have witnessed the alleged crime. However, strangers are reluctant to testify in the Court of Law and they are not willing to involve themselves in prolong trials. Their coming and going to the Court from their village, would necessarily involve travel expenses, energy and their absence from their normal work life. In the absence of availability of independent witnesses, the prosecution has no other option but to examine the injured persons. No adverse inference can be drawn against the prosecution for non- examination of independent witnesses when injured witnesses are readily available and have been examined by the prosecution. After all, the injured witness is the best witness for establishing the case of the prosecution. His presence cannot be doubted at the scene of the crime. He is also most likely to reveal the truth. For, an injured witness would be reluctant to let go of the actual culprit and to falsely implicate innocent persons. Therefore, the mere fact that only injured witnesses have been examined in the present case would not be fatal to the prosecution.