NAVA Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an application -in -revision filed by Nava, Hamira, Chela and Poonama convicts against the judgment of the Sessions Judge, Balotra, dated 24th January, 1976, confirming the judgment of the Chief Judicial Magistrate, Banner, by which Hamira was convicted under Sec. 326, I.P.C. and the remaining three petitioners, namely, Nava, Chela and Poonama were convicted under Sec. 326/34, I P C and each of them was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 200/ -, in default of payment of fine to further suffer rigorous imprisonment for two months. The prosecution case against the petitioners was as follows: -

(2.) I have carefully gone through the record of the trial court and heard Mr. Bhagwati Prasad appearing on behalf of the petitioner and Mr. K.C. Bhandari, Public Prosecutor, for the State. The first contention put forward before me by Mr. Bhagwati Prasad, learned counsel for the petitioners, is that, both the courts below committed an error in convicting the petitioners on the basis of the evidence led by the prosecution in support of its case. According to the learned counsel, the prosecution version about the occurrence given out in the first information report was given a complete go by at the trial and a wholly new story was introduced in as much as even the place of occurrence was changed. The above contention has no force. Upon perusal of the first information report, it is clear that Mst. Debo claimed to have been sleeping on a cot outside an 'Ora', i.e. room of her husband's residential house immediately prior the incident. At about mid -night her husband's brother Dhanna came to her cot and sat on her breasts. She raised a hue and cry, which attracted Chela son of Sardra to that place Chela asked her to keep quiet. Then Dhanna went away from there and she slept again. After sometime, Hamira and Chela, petitioners, lifted her cot on which she was sleeping and then took her inside the room. Mst. Debo woke up but these persons pressed her mouth with their hands. In the 'Ora' she was beaten by Hamira and Chela with sticks. Hamira gave her two lathi blows, one fell on her left leg and the other fell on the left thigh. Chela also struck a lathi blow on her right leg. Then both of them dragged her out of the 'Ora' and brought her in the open Chowk, where Chela openly asked his companions to cut her nose. Thereafter Virma, Ganga Das Dhanna, Nava and Poonma assembled there. Chela caught her both hands and placed his knees on her chest. She raised an outcry, which attracted Gajja to the place of occurrence, but Gajja was not allowed by the miscreants to come near her. Then Poonma caught, hold of her head, Ganga Das caught held of her legs while Hamira cut her nose with a knife. Then her husband Nava twisted her right hand and gave her fist blows. All the miscreants then dragged her out of the 'Ora' and took her to an open place where her both the ears were cut by Hamira with a knife. Then she was forcibly carried on lathis to the house of her father.

(3.) IN her statement also at the trial she clearly stated that her cot on which she was lying asleep was lifted -up and taken inside the 'Ora' by Hamira and Chela, who thereafter pressed her mouth and beat her with lathis. She further stated that Chela gave her two lathi blows on her left leg and another on her left thigh. Hamira also gave her a lathi blow which fell on her right leg. At the trial also she further stated that she was dragged out of the 'Ora' by Poonma, Hamira, Chela and Nava and brought to an open place which lay at a distance of about 300 paundas from her husband's house According to her version at the trial, her nose and ears were cut by Hamira at that place. She did not omit to state that before her nose and ears were cut by Hamira, Poonma had caught hold of her head and Chela and sat upon her breast, and thereafter she was manhandled and beaten had forcibly carried to her father's house. The only difference between her version given in the first information report and at the trial is that in the first information report she stated that her nose was cut by Hamira in the open Chowk and her ears were cut by him at an open place which lay at some distance from the house of her husband, while in her statement at the trial she stated that her nose and ears were cut by Hamira with a knife at an open place near a 'Bavali' tree which lay at a distance of about 500 Paunds from the Dhani of her husband. She was confronted with and contradicted by relevant portions of the first information report. When confronted, she stated that her nose and ears were not cut at different places but at one place. Mr. Bhagwati Prasad, learned counsel for the petitioners, has laid much emphasis on the referred to above discrepancy between her versions which she gave on different occasions about the occurrence. According to him, the prosecution cannot be permitted to reconstruct an altogether a new story which does not find place in the first information report and in this connection he referred me to Dayaji Ram vs. The State, ILR (1951) I Raj 806, wherein it was observed that if a story given at the trial differs in essential particulars from the one given in the first information report, it is regarded highly suspicious and the accused is entitled to the benefit of doubt on the basis of such discrepancies. Mr. Bhagwati Prasad relied upon an authority of the Supreme Court also reported in Sadhu Singh vs. The State of PEPSU : AIR 1954 SC 271, wherein the following observations were made in para 12 at page 276: -