BHANWAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS criminal appeal is directed against the judgment and order of learned Additional Sessions Judge Baran dated 10.2.1986 thereby convicting the appellant -appellants No. 1 and 2 Bhanwar Singh and Parmanand for offence under Section 326 read with Section 34 IPC and sentencing each of them with rigorous imprisonment for three years with a fine of Rs. 2000/ -, in case of default of payment of fine, to further undergo rigorous imprisonment for six months. Accused -appellant No. 3 Kanhaiya Lal though was convicted for offence Under Section 323 r/w. Section 34 IPC but he was released on probation.

(2.) SHRI A.K. Gupta, learned Counsel for the accused -appellants has argued that accused -appellants Bhanwar Singh and Parmanand could not have been convicted for offence under Section 326 IPC because the evidence that has been produce does not prove such charge against them beyond reasonable doubt. Two witnesses namely; PVV -14 Shivcharan and PW -15 Sajjan Bai, who were the independent eye -witnesses, though produced by the prosecution, but they did not support the prosecution case. That apart, statement of injured PW.13 Rampratap is also full of contradictions, therefore, conviction of accused -appellants cannot be sustained on his sole testimony. Further, it is evident from the statement of PW -13 Rampratap that occurrence took place in the night and not in evening and there was no sufficient light enabling him to identify the accused. Accused -appellants have thus falsely been implicated on the basis of mere doubt arid due to enmity. It was contended that PW -1 Mohan, PW -2 Sushila and PW -3 Kanchan are not eye -witnesses of the occurrence. Their evidence fall within the category of hearsay evidence therefore their testimony cannot be relied on to sustain the conviction. Learned Counsel argued that conviction of accused -appellants Bhanwar Singh and Parmanand for offence Under Section 326 IPC cannot at all be sustained because PW -4 Dr. B.D. Lahoti in injury report Exh. P. 2 prepared by him on visual examination advised x -ray of injured Rampratap in respect of Injuries No. 1 and 2. Although x -ray plastes and x -ray report Exh. P.3 and Exh. P. 4, respectively, were produced but Radiologist who subjected injury examination was not produced and in absence of evidence thereof, it was not proved that x -ray plate was of injured Rampratap although x -ray report was prepared by the Ratiologist. In absence of evidence of Radiologist, offence against accused -appellants Bhanwar Singh and Parmanand merely oh the basis of testimony of Dr. B.D. Lahoti PW.4 could be proved only for offence under Section 324 IPC and not one under Section 326 IPC. In support of his argument, he placed reliance on the judgment of Principle Seat at Jodhpur in Naraindas v. State of Rajasthan and Ors. 2004 (3) RCC 1379 and Ganpatlal v. State RCC 1989 (14) 278.

(3.) SHRI D.D. Sharma, learned Public Prosecutor has opposed the appeal and submitted that there was ample evidence on record which proved the offence Under Section 326 IPC against appellants Bhanwar Singh and Parmanand. Besides, offence Under Section 323 IPC against accused appellant Kanhaiya Lal also -proved. It was argued that injury report was prepared by Dr. B.D. Lahoti PW. 4 which proved nature of injuries and therefore mere on -examination of the Radiologist would not be fatal to the case of prosecution as the medical officer himself was capable of giving the opinion on the basis of x -ray plates. Learned Public Prosecutor argued that even if PW -14 Shivcharan and PW -15 Sajjan Bai have turned hostile then also, statement of injured PW -13 Rampratap is sufficient to prove offence Under Section 326 IPC.