BHUBA & ORS. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) 1. This appeal is directed against the order of conviction dated 5.7.1978 and sentence dated 28.7.1978 passed by the Sessions Judge, Jalore in Sessions Case No.29/77 convicting the accused appellants as under:- <FRM>JUDGEMENT_70_LAWS(RAJ)5_1999_1.html</FRM> The appeal of Khima s/o Tejaji abates as he died during the pendency of the appeal. The appeal by the remaining four accused is, therefore, taken up for decision today. With the assistance of the learned counsel for the accused and the learned PR, we have re-appreciated the oral and documentary evidence on record and scrutinised the judgment of the learned Sessions Judge.

(2.) The prosecution story stated in brief is that on 26.8.1977 at about 6.30 RM. an F.I.R. was lodged by one Joga at the Police Station Nosara, District Jalore that in the afternoon of that day, the accused persons who are named in the F.I.R. assaulted them and in the assault, Hema was seriously injured, as a result of which he died on the spot. On the basis of this information, investigation was taken up by the police. The accused persons were arrested and case was registered against these persons under Secs. 302, 307, 147, 148, 149 and 323 I.P.C. Challan was put up thereafter and trial was conducted. During the trial, the prosecution has examined 16 witnesses to prove its case. Five of the sixteen witnesses are examined as eye witnesses by the prosecution and each of them has turned hostile denying that they saw any assault by the accused persons on the deceased Hema. The testimony, therefore, becomes worthless. RW. 5 and P.W. 15 are the doctors, who conducted the post-mortem and examined the injured person respectively. They proved beyond reasonable doubt that death of Hema was homicidal in nature. The injuries on the other person injured in the assault are also duly proved from the six Panch witnesses who witnessed certain recoveries made at the instance of the accused persons. The testimony of these Panch witnesses is duly corroborated by the testimony of P.W. 16, who is the Station House Officer (S.H.O.) and the Investigating Officer, who while investigating the offence, recovered the weapons at the instance of the accused from their premises. Relying on the recoveries made, the learned Judge has convicted the accused persons, which conviction is assailed in this appeal.

(3.) Admittedly, there is no eye witness account of the incident as each of the eye witnesses has turned hostile. Even if the evidence of recoveries is accepted in toto, what is proved by it at the most is that certain weapons were recovered at the instance of the accused from their possession. In our opinion, this evidence circumstantial in nature is grossly, unsafe to sustain the order of conviction as there is-no evidence on record to connect these weapons to the assault committed on the deceased. Even if it is proved that the weapons seized after recoveries had blood stains, still it cannot be assumed that the blood stains were that of the deceased. The evidence is very weak and is wholly of corroborative nature. By reason of Sec. 27 of the Evidence Act, the statements of the accused that they have used these weapons to assault Hema, is inadmissible. The proof of recovery of these weapons at the instance of the accused at the most, therefore, is proof of the fact that the accused knew where the weapons are lying. There has to be clear positive evidence to link the weapons and its user to the accused and the deceased. Unless it is established that the blood found on the weapons is of the same blood group as that of the deceased, it cannot be said that the weapons were those used for assaulting Hema, the deceased even if this evidence is held sufficient to come to the conclusion that they belonged to the accused and were used by the accused. The vital link of connecting the weapons to the deceased is, therefore, missing in the present case and in such circumstances, we do not find it justified to sustain the order of conviction as recorded by the learned Judge particularly in view of the fact that all the eye witnesses have turned hostile. Their hostility creates a reasonable doubt regarding their exact nature of occurrence and consequently, conviction on such weak evidence of recoveries unconnected with the deceased is unsafe,