CRIMINAL APPEAL 77/1987 on 28 September 1994

1. Kailash S/o Ram Lal2. Ami Lal S/o Ram Lal

3. Ram Lal S/o Kanhi Ram,

All Residents of Rasulpur, Police Station Buhana, DistrictJhunjhunu, Rajasthan.

----Respondent

For Appellant(s): Mr. Vijay Singh Yadav, P.P.For Respondent(s): Mr.Mukesh Kumar HON'BLE MR. JUSTICE AVNEESH JHINGAN HON'BLE MR. JUSTICE PRAVEER BHATNAGARJUDGMENT

08/10/2025-AVNEESH JHINGAN, J:

The State of Rajasthan is in appeal against the judgmentdated 28.09.1994 passed by the Additional District and SessionsJudge, Khetari, District Jhunjhunu in Sessions Case No.77/1987whereby Kailash, Ami Lal and Ram Lal were acquitted.

2. During pendency of the appeal, Ram Lal S/o Kanhi Ram diedand the appeal qua him was abated. The appeal now survives quaKailash and Ami Lal S/o Ram Lal (hereinafter referred to as‘respondents’).

3. The facts as per the prosecution are that on a complaintgiven on 08.08.1987 by Kailash S/o Leeladhar Khati (hereinafterreferred to as ‘complainant’), FIR No.53/1987 under Sections 302,326 read with Section 34 IPC and 448 IPC was registered at Police Station Buhana, District Jhunjhunu. It was stated that on08.08.1987 Ram Lal armed with lathi, Kailash S/o Ram Lal andAmi Lal sons of Ram Lal armed with barchi (sharp edged weapon)came outside the baithak (sitting place outside the house) andstarted beating the complainant, Babu Lal (for brevity ‘deceased’)and Ram Chandra. Kailash gave a barchi blow on the head of thecomplainant, thereafter, all three accused gave beating to RamChandra and deceased. On hue and cry of the ladies, PW-6Chandra Bhan and PW-7 Raghu Veer came and intervened. Thedeceased died on reaching the hospital. The accused earlier inmorning had beaten PW-10 Vinod (son of uncle of thecomplainant) at the shop of Leeladhar Khati.

3.1. After filing of the challan, charges were framed u/s 302 IPC,in the alternate u/s 302 read with Section 34 IPC and 323, 324 &325 IPC, in the alternate 323 & 324 read with Section 34 IPC.

3.2. In the statement u/s 313 Cr.P.C., the accused denied thecharges and stated that the complainant party was the aggressor,had come to the house of PW-8 Ramchandra, inflicted injuries andthe accused only defended themselves. The prosecution examinedtwenty four witnesses and exhibited twenty eight documents. Indefence, four witnesses were examined and seventeen documentswere exhibited. The trial court after considering the factual aspectand appreciating the evidence concluded that the prosecutionfailed to prove the case to the hilt and giving benefit of doubtacquitted the accused. Hence, the present appeal.

4. Learned Public Prosecutor argues that the eye witnessesPW-1 Kailash (complainant), PW-4 Santlal, PW-6 Chandra Bhan,PW-7 Raghu Veer and PW-19 Dadkali supported the case of the prosecution and in deposition narrated the incident in extenso.The contention is that the barchi,jaili (agriculture equipment),lathi and chain were recovered at the instance of accused andrecovery was made in the presence of two witnesses. Thepostmortem report and injury report is relied upon to fortify theargument that the deceased succumbed to the injuries inflicted bythe accused.

5. Learned counsel for the respondents defends the impugnedjudgment, contends that the scope of interference in the appealagainst acquittal is limited. The argument is that there arevariations in the testimony of prosecution witnesses with regard tothe place of incidence, the weapons accused were armed with andin attributing the injuries.

6. Heard learned counsel for the parties and perused the recordwith their able assistance.

7. PW-8 Ramchandra (brother of the deceased) eye witness tothe incident stated that Ram Lal inflicted injuries to the deceasedwith lathi and did not name the respondents. The witness wasdeclared hostile.

8. PW-4 Santlal, PW-6 Chandra Bhan, PW-7 Raghu Veer, PW-16Maman and PW-19 Dadkali were examined as eye witnesses. PW-4 Santlal deposed that the incident occurred outside the baithak ofPW-8 Ramchandra. In chief, it was stated that all three accusedinflicted injuries to the deceased, later stated that Ram Lal had notinflicted injuries. The presence of PW-6 Chandra Bhan and PW-7Raghu Veer at the time of incident was supported by statement ofPW-4 Santlal. PW-6 Chandra Bhan testified that the deceased wasattacked by all the three accused. It was stated that Kailash was armed with jaili and Ami Lal gave a barchi blow on the head of thedeceased. Where as, PW-6 Chandra Bhan deposed that PW-8Ramchandra & Ami Lal gave barchi blow on head of the deceasedand Kailash was armed with jaili. To similar effect were thestatements of PW-7 Raghu Veer and PW-19 Dadkali but complaintstate Kaliash and Ami Lal were armed with barchi.

9. PW-19 Dadkali was neither named in the complaint nor inthe FIR but was projected as an eye witness by the prosecution.In cross-examination, it was stated that at the time of incident,she was sitting in the baithak along-with deceased and by thetime she came out the accused had gone after inflicting injuries.In the same breathshe stated that deceased was sitting at thedoor of the baithak where injuries were inflicted and she saw theincident. The deposition of PW-19 Dadkali dented the presence ofPW-6 Chandra Bhan and PW-7 Raghu Veer on spot at the time of incident.

10. The Trial Court rightly considered that there were majorvariations in the deposition of the eye witnesses with regard to therole attributed, the weapons accused were armed with and thewitnesses inter se disputed the presence of other witnesses at thetime of incident. It was taken into account that PW-6Chandrabhan, PW-7 Raghuveer and PW-19 Dadkali were relativesof the deceased. Moreover, PW-8 Ramchandra, PW-13 Randhirand PW-14 Madan were declared hostile and PW-16 Maman, PW-19 Dadkali were not named as eye witnesses in the complaint.

11. The place of incident is in doubt. As per the complaint, theaccused attacked outside the baithak of the deceased, whereasPW-16 Maman deposed that the incident took place inside thehouse of Ram Lal, where the complainant party had forcibly entered. To similar effect the defence was taken in Section 313Cr.P.C. statement.

12. It would be apposite to note at this stage that for the sameincident, cross case at instance of Kailash Chand was registered inFIR No.54/1987 for the offences u/s 147, 148, 149, 323 & 324IPC. It was alleged that Babu Lal, Ramchandra, and Kailash S/oLeeladhar Khati forcefully entered the house armed with jaili, farsiand lathi respectively. PW-22 Man Prakash (Investigating Officer)testified that in FIR No.54/1987 PW-8 Ramchandra was arrestedon21.12.1987 and at his instance, a kulhadi used in the incidentwas recovered in the presence of two recovery witnesses. Furtherstated that during investigation it was found that the incident forwhich FIR Nos.53/1987 & 54/1987 were registered, occurred atthe same place. The perusal of the site plan and the testimony ofPW-22 Man Prakash (I.O.) reveals that the incident took place ona common passage.

13. In the Post-Mortem Report (Ex.P.24), cause of death ismultiple injuries to Lungs, Liver and Right Kidney leading tosudden of excessive hemorrhage leading to syncope, circulatoryfailure and respiratory failure. The injuries were ante-mortem innature. It cannot be lost site of that three sharp edged weaponinjuries on the head of the deceased were declared to be simple innature and do not find mention in cause of death of the deceased.

14. The recovery of barchi at the instance of Ami Lal andrecovery of jaili from the house of Ram Lal do not enhancethecase of the prosecution. There were no blood stains or otherevidence connecting the use of recovered weapons in the incident.

The prosecution failed to prove injuries attributed by the accusedand the weapon used.

15. On the other hand, in defense the accused were successful increating doubt with regard to the place of incident and that theaggressor were the complainant. The statement of I.O. and PW-16Maman when read along-with the evidence produced in defenceshowed that the incident took place at the house of theRamchandra where the complainant party forcibly entered andinflicted injuries. The injuries sustained by all the three accusedwere proved by the MLR & deposition of DW-2 Dr. Bhagwan SinghSomra.

16. Viz-a-viz the prior incident that occurred at the shop ofLeeladhar Khati, where PW-10 Vinod was beaten by the accusedwith chain remains unsubstantiated. Except the injured, all othereye witnesses PW-13 Randhir, PW-14 Madan and PW-17 Hariramwere declared hostile. PW-15 Sanwal deposed that PW-10 Vinodwas beaten by the accused with chain but he had not seen theinjuries on body of Vinod. In cross-examination, PW-15 Sanwalstated that he was not aware that the shop where the incidenttook place was open or close and he was not aware that anyoneelse was present at the time of incident. It was admitted that hewas related to the brother of the deceased. During the deposition,the witnesses showed ignorance as to whether the chain used inthe incident was of cycle or motorcycle whereas, in the statementbefore the police it was stated that the cycle chain was used. Thedeposition was not found reliable.

17. In back drop of previous dispute between parties and crosscases filed for incident that occurred on 8/8/07, the sole testimony of PW-10 Vinod was rightly not relied upon by the trial Court toform sole basis for convicting the accused u/s 323, 324 and 325IPC.

18. There are major variations inter se the deposition of theprosecution witnesses with regard to the weapons accused werearmed with; injuries attributed to each of the accused; and theplace of incident. Further the statement of prosecution witnessesdetailing the injuries are not inconsonance with the medicalevidence. There were cross versions of the incident and theinjuries sustained by the accused, side remained unexplained. Thetrial Court rightly concluded that the prosecution failed to provethat the injuries and the fatal injury to the deceased were inflictedby the accused with the use of the recovered weapons.

19. The scope of interference in the appeal against the judgmentof the acquittal is enunciated by the Supreme Court in case ofBabu Sahebagouda Rudragoudar Vs. State of Karnataka reported in [(2024) 8 SCC 149] and held:- “40. Further, in H.D. Sundara v. State ofKarnataka, (2023) 9 SCC 581 this Courtsummarised the principles governing theexercise of appellate jurisdiction whiledealing with an appeal against acquittalunder Section 378CrPC as follows:

“8. …

8.1. The acquittal of the accusedfurther strengthens the presumptionof innocence; 8.2. The appellate court, whilehearing an appeal against acquittal,is entitled to reappreciate the oraland documentary evidence; 8.3. The appellate court, whiledeciding an appeal against acquittal,after reappreciating the evidence, is

required to consider whether theview taken by the trial court is apossible view which could have beentaken on the basis of the evidenceon record; 8.4. If the view taken is a possibleview, the appellate court cannotoverturn the order of acquittal onthe ground that another view wasalso possible; and 8.5. The appellate court caninterfere with the order of acquittalonly if it comes to a finding that theonly conclusion which can berecorded on the basis of theevidence on record was that theguilt of the accused was provedbeyond a reasonable doubt and noother conclusion was possible.”

41. Thus, it is beyond the pale of doubt thatthe scope of interference by an appellatecourt for reversing the judgment of acquittalrecorded by the trial court in favour of theaccused has to be exercised within the fourcorners of the following principles:

41.1. That the judgment of acquittal suffersfrom patent perversity; 41.2. That the same is based on amisreading/omission to consider materialevidence on record; and 41.3. That no two reasonable views arepossible and only the view consistent withthe guilt of the accused is possible from theevidence available on record.”

20. The view taken by the trial Court is plausible view andsuffers from no factual or legal error much less perversity callingfor interference in the appeal. No case is made out forinterference.

21. The appeal is dismissed. The judgment dated 28.09.1994

passed by the trial court is affirmed.

(PRAVEER BHATNAGAR),JMonika/Keshav/3

(AVNEESH JHINGAN),J

Whether Reportable:Yes