Rajasthan High Court - JodhpurGanga Singh And Anr vs State Of Rajasthan on 18 January, 2023Bench:Sandeep Mehta,Kuldeep MathurHIGH COURT OF JUDICATURE FOR RAJASTHAN AT\n                      JODHPUR\n               D.B. Criminal Appeal No. 294/1992\n\nState Of Rajasthan\n                                                                   ----Appellant\n                                   Versus\n1. Bhagwan Singh S/o Shri Ganpat Singh, B/c Rajput. (Passed\naway on 31.12.2014- Appeal abated on 15.09.2022)\n2. Ganga Singh S/o Shri Bhagwan Singh, B/c Rajput, both are\nR/o V. Bagrasar, at present residing at Barli, Tehsil & District\nNagaur.\n                                                                ----Respondents\n                             Connected With\n               D.B. Criminal Appeal No. 141/1992\n1. Ganga Singh S/o Bhagwan Singh\n2. Bhagwan Singh S/o Ganpat Singh (Passed away on\n31.12.2014- Appeal abated on 15.09.2022)\n   Both by caste Rajput R/o Bagrasar, Distt. Nagaur.\n                                                                  ----Appellants\n                                   Versus\nState Of Rajasthan\n                                                                ----Respondent\n\n\nFor Appellant(s)         :     Mr. Sunil Mehta\nFor Respondent(s)        :     Mr. B.R. Bishnoi, AGC\n\n\n\n          HON'BLE MR. JUSTICE SANDEEP MEHTA\n          HON'BLE MR. JUSTICE KULDEEP MATHUR\n\n                                Judgment\n\nDate of pronouncement : 18/01/2023\n\nJudgment reserved on : 29/11/2022\n\nBY THE COURT : PER HON'BLE MEHTA, J.These two appeals arise out of the judgment dated\n\n02.04.1992 rendered by the learned Additional Sessions Judge,\n\nNagaur in Sessions Case No.2/1990, whereby the learned trial(Downloaded on 18/01/2023 at 11:48:44 PM)(2 of 18)               [CRLA-294/1992]\n\n\ncourt acquitted the accused-respondents from the charges under\n\nSection 302 and in the alternative 302/34IPCand instead\n\nconvicted them for the offence underSection 323and325IPC and\n\nsentenced them as below :-Offence for which convicted             Sentence awardedSection 323IPC                         Six      months'      rigorous\n                                        imprisonment alongwith a fine\n                                        of Rs.500/- and in default of\n                                        payment of fine, further to\n                                        undergo one month's simple\n                                        imprisonmentSection 325IPC                         Two       years'      rigorous\n                                        imprisonment alongwith a fine\n                                        of Rs.1,000/- and in default of\n                                        payment of fine, further to\n                                        undergo two months' simple\n                                        imprisonment\n\n\n\n          The State of Rajasthan has preferred D.B. Criminal\n\nAppeal No.294/1992 for assailing the acquittal of the accused from\n\nthe charges underSection 302and302/34IPC, whereas the\n\naccused have filed the appeal underSection 374(2)CrPC for\n\nassailing their conviction and sentences as recorded by the trial\n\ncourt in the above terms.As both the appeals arise from the judgment dated\n\n02.04.1992, the same have been heard and are being decided\n\ntogether by this common judgment.Briefly stated, facts relevant and essential for disposal\n\nof the appeal are noted hereinbelow :-Shri Ganga Singh (P.W.1) lodged a written report\n\n(Ex.P/1) to the SHO, Police Station Nagaur on 06.01.1990 alleging\n\ninter alia that on the previous day, i.e. 05.01.1990, he and his(Downloaded on 18/01/2023 at 11:48:44 PM)(3 of 18)               [CRLA-294/1992]\n\n\nfather Shri Richhpal Singh had gone to Nagaur in their camel cart\n\ncarrying with them dry wood for sale.              They could complete the\n\nsale by evening and thereafter, they started back for their village\n\nBagarasar. Rewant Ram S/o Akharam and Madan Lal S/o Ram Lal\n\nKhati, who had also come to Nagaur for selling wood, joined them.\n\nHis father and one Ladu Ram were sitting on his cart, whereas he\n\nwas sitting on the cart of Madan Lal. His cart was following the\n\ncart of Madan Lal. They came out of Nagaur and were proceeding\n\non the road towards Bhadana. They reached near the well of\n\nMalis, Ganga Singh S/o Bhagwan Singh and Bhagwan Singh S/o\n\nGanpat Singh Rajputs, residents of Bagrasar, were waiting\n\namongst the bushes. Both of them were armed with lathis. They\n\nlaunched an attack causing extensive injuries to his father, due to\n\nwhich, he received injuries all over his body and his hands and\n\nlegs were fractured.     The incident was witnessed by the first\n\ninformant, Ladu Ram and Madan Lal, but they did not go near or\n\nintervene fearing for their own lives.             Presuming that his father\n\nhad died, the accused went away hurling an insinuation that if\n\nanyone went towards Nagaur, then he too would be killed.                  His\n\nfather was boarded on to the camel cart and taken to Deh\n\nHospital, where the doctor checked his father and administered\n\nsome medicines and advised that the condition of his father was\n\nserious and thus, he should be taken to Nagaur. He sent someone\n\nwith a jeep to fetch Shri Sundar Singh, maternal uncle of his\n\nfather, from the village.      He also sent information to his own\n\nvillage, from where his father's uncle Shri Sukh Singh came. They\n\nboarded Shri Richhpal Singh on the jeep for taking him to Nagaur\n\nand had proceeded about two kms. from Deh, at that point of(Downloaded on 18/01/2023 at 11:48:44 PM)(4 of 18)                [CRLA-294/1992]\n\n\ntime, his father expired. His father's body was lying in the jeep.\n\nIt was alleged that Ganga Singh and Bhagwan Singh had killed his\n\nfather owing to a previous enmity. This report was submitted to\n\nthe SHO, Police Station Nagaur on 06.01.1990 at 1.00 p.m. On\n\nfurther enquiry, the informant told the police officer that the\n\nincident took place on the public way near the Village Badli at\n\nabout 05.30 to 05.45 p.m.           By that time, sun had not set.            A\n\nformal FIR No.7/1990 (Ex.P/18-A) came to be registered on the\n\nbasis of this written report. It is relevant to mention here that the\n\nSHO Birbal Singh did not make endorsement of time of receiving\n\nthe report in the document. This report was received at the Police\n\nStation, Nagaur at 01.00 p.m. as per the endorsement made after\n\nthe Karyawahi Police.     The police Station Nagaur is located at a\n\ndistance of less than 1 km. from the court premises, in spite\n\nthereof, the formal FIR (Ex.P/18) was received in the court of the\n\nMagistrate concerned on 07.01.1990 at 10.30 a.m. Be that as it\n\nmay.   The usual investigation was undertaken.                  Panchayatnama\n\nLash, Surat Haal Lash etc. were prepared. Blood stained soil was\n\ncollected from the place of incident. The clothes of the deceased\n\nwere seized. The site inspection plan (Ex.P/2) was prepared, as\n\nper which, on one side of the crime scene, there is a barbed wire\n\nfencing of the Forest Department and on the other side, field of\n\nPoonaram Mali is located.         However, what is significant to note\n\nhere is that there is no reference in the site plan to existence of\n\nany bushes wherein the accused could have hidden. The dead\n\nbody of Shri Richhpal Singh was subjected to postmortem at the\n\nhands of a medical jurist of the Government Hospital, Nagaur, who(Downloaded on 18/01/2023 at 11:48:44 PM)(5 of 18)               [CRLA-294/1992]\n\n\nissued the postmortem report (Ex.P/9) taking note of the following\n\ninjuries :-1.    Lacerated 1" x 1/2"x bone deep on right tibial\n              Skin in middle 1/3rd region, bone piece is coming.2.      Abrasion 3" x 1/2" on contusion 4" x 2" on right\n              leg in upper half anteriorly.3.      Contusion 3" x 1-1/4" on Postero-lateral aspect of\n              right leg upper region.4.    Irregular abrasion 3" x 2" on contusion 4" x 3" on\n              lower region of right knee and upper region of leg\n              arteriorly.5.    Abrasion 1-1/2" x 3/4" on right patellar region\n              knee.6.    Contusion 3" x 1-1/4" on autero-lateral aspect of\n              right thigh placed obliquely in lower region.7.    Two contusions 8" x 1" and 6" x 1-1/4" on\n              postero-lateral aspect of right thigh placed transversely\n              in middle.8.    Lacerated 3" x 3/4" x bone deep on left tebial\n              Shin in lower half region.9.    Contusion 2" x 1" and 1-1/2" x 1" on autero-lateral aspect of left leg lower region leg is band here\n              due to # both bones.10.   Abrasion 3/4" x 1/2" on left tibial skin middle\n              region.(Downloaded on 18/01/2023 at 11:48:44 PM)(6 of 18)                  [CRLA-294/1992]11.   Lacerated 1/2" x 1/4"x skin deep on left tibial skin\n          upper region12.   Abrasion 1"x3/4" on lower region of left knee\n          anteriorly.13.   contusion 4" x 1/4" on autero-lateral aspect of left\n          thigh in middle placed transversely.14.   contusion 2" x 1" on left thigh, lower region\n          anteriorly15.   Abrasion 3/4" x 1/2" on upper region of left knee16.   Abrasion 1-1/2" X 1/4" on contusion 3" x 1" at\n          postero-lateral aspect left forearm in middle17.   Abrasion 3/4" x 1/6" on contusion 1-1/4" x 1" on\n          postero-lateral aspect of left forearm in lower region,18.   lacerated     1-1/2"       x    1/2"x      muscle    deep   web\n          between thumb and index finger of left hand19.   Contusion 2" x 1" on postero-lateral of right\n          forearm in lower region20.   Lacerated 1" x 1/4"x skin deep web between\n          thumb and index finger of Right hand.Both the accused were arrested. Acting on the basis of\n\ntheir disclosure statements, lathis were recovered.                 The accused\n\nBhagwan Singh was found having large number of injuries at the\n\ntime of his arrest and thus, he was medically examined and the\n\nmedico-legal report (Ex.D/7) was prepared.                     After concluding\n\ninvestigation, charge-sheet came to be filed against both the\n\naccused for the offences punishable underSection 302IPC and in(Downloaded on 18/01/2023 at 11:48:44 PM)(7 of 18)                   [CRLA-294/1992]\n\n\nthe alternative 302/34IPC. The case was committed to the Court\n\nof Additional Sessions Judge, Nagaur and charges were framed\n\nagainst the accused appellants for the above offences. Both the\n\nappellants pleaded not guilty and claimed trial.                The prosecution\n\nexamined as many as 16 witnesses and exhibited 20 documents\n\nso as to prove its case.        The accused were questioned underSection 313CrPC and were confronted with the circumstances\n\nappearing against them in the prosecution case. The accused\n\nGanga Singh took a pertinent plea that he was not even present at\n\nthe spot and had been falsely implicated in this case. The accused\n\nBhagwan Singh made a pertinent statement that he was watering\n\nhis buffaloes when Richhpal Singh came across with his camel cart\n\nand spooked the buffaloes. He resisted, upon which, Richhpal\n\nSingh gave lathi blows to him and the buffaloes and in this\n\nprocess, he raised his lathi.      He stated that only Poonaram was\n\npresent when the incident took place. 2 witnesses were examined\n\nand 7 documents were exhibited in defence.                     After hearing the\n\narguments advanced by the learned Public Prosecutor and the\n\nlearned defence counsel and appreciating the material evidence\n\navailable on record, the learned trial court found that the conduct\n\nof the witnesses, Ganga Singh (P.W.1), Ladu Ram (P.W.2), Madan\n\nLal (P.W.3) and Rewant Ram (P.W.4) in not taking Richhpal Singh\n\nto Nagaur for treatment even though distance between the place\n\nof incident to Nagaur was only 4 kms. and instead taking him to\n\nDeh in night at about 11 o'clock would indicate that no serious\n\nefforts were made whatsoever to save Richpal Singh and timely\n\ntreatment was not provided to the victim.                      Furthermore, the\n\ndoctor at Deh examined Shri Richhpal Singh at 11 o'clock in the(Downloaded on 18/01/2023 at 11:48:44 PM)(8 of 18)                  [CRLA-294/1992]\n\n\nnight and after providing him conservative medication, he advised\n\nthat the injured should be taken to higher center, i.e. Nagaur for\n\ntreatment and made a referral as such, but in spite thereof, the\n\nfamily members kept waiting till late in the morning and that\n\nworsened the condition of the injured leading to his death even\n\nthough he had no grievous injuries on any vital body organs.\n\nConsequently, the accused were acquitted from the charge underSection 302IPC and the offence was toned down and conviction of\n\nthe accused was recorded in the above terms by the impugned\n\njudgment dated 02.04.1992, which is assailed in these two\n\nappeals.Learned counsel Shri Sunil Mehta, representing the\n\naccused appellants, vehemently and fervently contended that the\n\nprosecution case is false and fabricated.                As a matter of fact,\n\nRichhpal Singh was all alone at the time of the incident and none\n\nof the witnesses were accompanying him and there was no\n\nsignificant motive for the accused to commit the crime. He urged\n\nthat the explanation offered by accused Bhagwan Singh in his\n\nstatement underSection 313CrPC that he was watering his\n\nbuffaloes when Richhpal Singh spooked them leading to the fight\n\nis the true description of the incident.           In this conflict, Bhagwan\n\nSingh himself received number of injuries.                     The prosecution\n\nwitnesses did not offer any explanation for the injuries suffered by\n\nBhagwan Singh in the same incident. He submitted that even if\n\nfor a moment, it is believed that the incident took place in the\n\nmanner alleged by the material prosecution witnesses including\n\nShri Ganga Singh (P.W.1), first informant and son of the deceased,(Downloaded on 18/01/2023 at 11:48:44 PM)(9 of 18)               [CRLA-294/1992]\n\n\nthe conduct of these 3 so-called eye-witnesses in not making any\n\neffort whatsoever to prevent the quarrel and not intervening to\n\nsave the victim from assault is a strong pointer to the fact that\n\nnone of the witnesses was accompanying Richhpal Singh at the\n\ntime of the assault.    He contended that Deh is at a distance of\n\nmore than 10 km from the place of incident, whereas Nagaur is\n\nlocated at a distance of just 4 km.              If at all the so-called eye-\n\nwitnesses had seen the incident happening with their own eyes\n\nand presuming that they could not muster courage to save the\n\nvictim, in natural course of human conduct, they would be\n\nexpected to approach the police station, Nagaur, which was\n\nlocated close-by at about 4 km and would also have made efforts\n\nto get the injured to the hospital at the earliest.             He urged that\n\nthe fictitious plea of the eye-witnesses that they felt threatened by\n\nthe insinuations of the accused that they should not proceed\n\ntowards Nagaur is nothing but a created theory. The two accused\n\nwere not armed with any dangerous weapons and were only\n\nhaving sticks in their hands as per the testimony of three\n\nprosecution eye-witnesses.         The prosecution witnesses too had\n\naccess to sticks, which usually are fixed on the camel carts and as\n\nsuch, nothing prevented the complainant and the witnesses from\n\nraising these sticks to ward off the attack made by the accused\n\nand thereafter, when the accused had gone away from the place of\n\nincident, the complainant and the witnesses had the opportunity\n\nto compose themselves and to take the injured to the Nagaur\n\nhospital for providing him immediate treatment.                 However, the\n\nwitnesses allegedly took the injured to Deh hospital on the camel\n\ncart, thereby wasting almost 5 to 6 hours (time of the incident(Downloaded on 18/01/2023 at 11:48:44 PM)(10 of 18)              [CRLA-294/1992]\n\n\nwas 05.30 to 06.00 and the time of the injured being examined at\n\nthe Deh hospital by the doctor was 11.00 pm.). He, thus, urged\n\nthat the conduct of the prosecution witnesses makes it clear that\n\nthey were not present at the place of incident. Shri Mehta further\n\npointed out that even after the Doctor at Deh referred the injured\n\nto Nagaur Hospital, the complainant and his companions, namely,\n\nLadu Ram (P.W.2), Madan Lal (P.W.3) and Rewant Ram (P.W.4),\n\ncontinued to waste time and randomly called out for other\n\nrelatives. The jeep of Vijay Singh (P.W.6) who resided just behind\n\nthe hospital, had been arranged very soon after the incident, but\n\ndespite that, the vehicle was sent to fetch the other relatives from\n\ndistant villages instead of taking the deceased to the hospital.\n\nThis circumstance, as per Shri Mehta, is sufficient to conclude that\n\nnone of the witnesses were present at the spot. The injured must\n\nhave been brought to the hospital by some passers by and then\n\nthe family members must have been informed about the incident.\n\nThey must have been told that Shri Richhpal Singh too had caused\n\ninjuries to Bhagwan Singh and thus, the FIR was got lodged so as\n\nto forestall any action from the side of the accused persons. Shri\n\nMehta further submitted that significant injuries caused to accused\n\nShri Bhagwan Singh in the very same incident were not explained\n\nby the prosecution witnesses and therefore, also, their testimony\n\nis fit to be discarded. On these grounds, Shri Mehta implored the\n\ncourt to accept the appeal filed by the accused, acquit them of the\n\ncharges and dismiss the appeal preferred by the State.Per contra, learned Public Prosecutor, vehemently and\n\nfervently opposed the submissions advanced by the appellants'(Downloaded on 18/01/2023 at 11:48:44 PM)(11 of 18)              [CRLA-294/1992]\n\n\ncounsel.     He urged that the prosecution eye-witnesses are\n\nabsolutely truthful and their evidence is trustworthy. The accused\n\nwere bearing previous grudge against the members of the\n\ncomplainant party.       They knew that the complainant and his\n\ncompanions would be passing by the field of Poonaram after\n\nhaving sold wood in Nagaur and were lying in wait.                   Both the\n\naccused were armed with lathis. Taking advantage of the fact that\n\nmembers of the complainant party were unarmed, the accused\n\nlaunched a pre-meditated attack on them and in this process,\n\nnumerous injuries were caused to Shri Richhpal Singh.                    These\n\ninjuries were so grave that the victim had no chance of survival.\n\nThe family members tried to provide timely medical aid to the\n\ninjured, but to no avail. Learned Public Prosecutor fervently urged\n\nthat the defence plea that Shri Richhpal Singh attacked the\n\naccused Bhagwan Singh is totally cooked up and unacceptable on\n\nthe face of the record.        Regarding the injuries suffered by the\n\naccused Bhagwan Singh, the contention of the learned Public\n\nProsecutor was that the presence of the injuries establishes\n\nparticipation of the accused in the incident and does not help the\n\ndefence theory in any manner. He further submitted that as many\n\nas 20 injuries were caused by the accused to Shri Richhpal Singh\n\nwith numerous fractures on the arms and legs and thus, there was\n\nno chance of Shri Richhpal Singh surviving the trauma of these\n\ninjuries.   Thus, the learned Public Prosecutor submitted that the\n\nmedical jurist Dr. D.R. Choudhary (P.W.7) of Government Hospital,\n\nNagaur clearly stated in his evidence that the cumulative effect of\n\nthe injuries caused to Shri Richhpal Singh proved fatal and hence,\n\nas per him, acquittal of the accused from the charge under(Downloaded on 18/01/2023 at 11:48:44 PM)(12 of 18)                    [CRLA-294/1992]Section 302is unjustified and illegal.                  On these submissions,\n\nlearned Public Prosecutor implored the court to accept the State\n\nappeal, reverse acquittal of the accused from the charge underSection 302IPC and to award them suitable punishment and at\n\nthe same time, he sought dismissal of the appeal against\n\nconviction.We have given our thoughtful consideration to the\n\nsubmissions      advanced at bar and have gone through                             the\n\nimpugned       judgment     and     have       minutely           re-appreciated   the\n\nevidence available on record.At the outset, a few important facts of the case need to\n\nbe noted.       On going through the FIR (Ex.P/18-A), and the\n\nevidence of the first informant Shri Ganga Singh (P.W.1), we find\n\nnothing which can even remotely suggest that the accused had\n\nany ostensible reason/motive so as to have launched the assault\n\nupon the deceased Shri Richhpal Singh.                    Deceased Shri Richpal\n\nSingh received the injuries at the place Maliyon Ki Badi while\n\nproceeding back to his village. This location is about 4 kilometers\n\nfrom the city of Nagaur as per the geographical map of Nagaur\n\ndistrict.   Deh is at a distance of about 18 kms. from the place\n\nwhere the assault took place.             As per the evidence of the star\n\nprosecution     eye-witnesses,        Ganga       Singh       (P.W1),     Ladu     Ram\n\n(P.W.2), Madan Lal (P.W.3) and Rewant Ram (P.W.4), after the\n\nassault, they boarded Richhpal Singh on to a camel cart and took\n\nhim to Deh. They did not proceed to Nagaur because they were\n\napprehensive regarding further acts of aggression by the accused.\n\nThe medical officer Dr. Premchand (P.W.12) categorically stated(Downloaded on 18/01/2023 at 11:48:45 PM)(13 of 18)                  [CRLA-294/1992]\n\n\nthat Richhpal Singh was brought to Deh Hospital at 11.00 p.m. in\n\nthe night.   Thus, there was a gap of almost five and half hours\n\nbetween the time of incident and the arrival of the injured at the\n\nhospital.    The   doctor     examined         Shri     Richhpal     Singh   and\n\nimmediately referred him to the Nagaur Hospital.                   The material\n\nprosecution witnesses referred to supra, after reaching the Deh\n\nHospital, claimed to have made efforts to call for other relatives.\n\nFor this purpose, the jeep of the witness Vijay Singh (P.W.6) was\n\nengaged.     The jeep owner Vijay Singh (P.W.6) stated that\n\nRewantram and Ganga Singh approached him at about 11.30 in\n\nthe night and requested him to proceed to Chhapada in his Jonga\n\nJeep for bringing the Sarpanch and Samandar Singh. Rewant Ram\n\naccompanied him to Chhapada. They picked up Samandar Singh\n\nand came back to the Deh Hospital at 02.30 a.m. in the night. A\n\ncareful analysis of the evidence of the so-called eye-witness is\n\nsufficient to convince the court that as a matter of fact, none of\n\nthe so-called eye-witnesses had actually seen the incident.                     It\n\nseems that Richhpal Singh received the injuries at the hands of\n\nsome unknown assailant, whereafter the relatives were informed.\n\nThe complainant party resides at Village Bagarasar and they\n\nthought it fit to take the victim to the Deh Hospital.                There the\n\ndoctor provided initial treatment and then referred the injured to\n\nthe Nagaur Hospital. More relatives were called to Deh Hospital\n\nand a decision was taken to take Richhpal Singh to Nagaur and\n\nfinally he was boarded on to the Jonga Jeep in the morning at\n\nabout 04.30 a.m. and was being taken to the Nagaur Hospital, but\n\nexpired before reaching there.          As the witnesses accompanying\n\nthe deceased Shri Richhpal Singh were four in number, i.e. Ganga(Downloaded on 18/01/2023 at 11:48:45 PM)(14 of 18)                  [CRLA-294/1992]\n\n\nSingh (P.W.1), Ladu Ram (P.W.2), Madan Lal (P.W.3) and Rewant\n\nRam (P.W.4), and as the accused were only two in number, there\n\nwas no rhyme or reason as to why four persons would feel so\n\nthreatened by the accused duo that they would not make any\n\neffort whatsoever to take the injured to the closest and better\n\nmedical facility, i.e. at Nagaur situated at a distance of merely 4\n\nkm.   Furthermore, the police station Nagaur is also located just\n\nnear the hospital and thus, in the natural course of human\n\nconduct, the witnesses, if at all they had seen the incident\n\nhappening with their own eyes, would definitely have taken the\n\ninjured to the Nagaur Hospital and would also have approached\n\nthe police to report the matter.          All the 4 witnesses referred to\n\nsupra, i.e. Ganga Singh (P.W.1), Ladu Ram (P.W.2), Madan Lal\n\n(P.W.3) and Rewant Ram (P.W.4), gave                  a stereotyped story in\n\ntheir examination-in-chief that the time was about 5 o'clock in the\n\nevening. They were proceeding to the Village Bagarasar on their\n\ncamel carts.   They had reached about 2 km. further ahead of\n\nBadli, where there was a wire fencing of the Forest Department.\n\nThe accused appellants were lying in wait hiding amongst the\n\nbushes. They were armed with bamboo sticks. Both inflicted lathi\n\nblows to Shri Richhpal Singh and Shri Ganga Singh.                      Richhpal\n\nSingh fell down from the cart, after which, both the accused\n\nrained innumerable lathi blows on the person of Shri Richhpal\n\nSingh. The witnesses cried out and pleaded for mercy. However,\n\nthe witnesses did not intervene because the accused had\n\nthreatened that they too would be beaten.                      They were empty-\n\nhanded. After the assault, the accused proceeded towards Nagaur\n\nmaking an insinuation that if the witnesses came to Nagaur, they(Downloaded on 18/01/2023 at 11:48:45 PM)(15 of 18)              [CRLA-294/1992]\n\n\ntoo would be killed. That is why the witnesses boarded Shri\n\nRichhpal Singh on the camel cart and took him to Deh.                  Prima\n\nfacie, this story is unbelievable. Pertinent cross-examination was\n\nmade from Ganga Singh regarding the motive for the incident, to\n\nwhich, he replied that the field of the accused is located nearby to\n\ntheir field and the cattle of the accused trespass into their fields\n\nand that is why, previous animosity was prevailing for the last two\n\nto three years.      The witness admitted that there was no\n\nimmediate cause for the assault. The witness also admitted that\n\nthe accused had been residing in Badliwas for the last four to five\n\nyears and did not come to their fields.The defence gave a pertinent suggestion to the material\n\neye-witnesses that Bhagwan Singh alone was watering his\n\nbuffaloes from the open tank built in front of field of Poonaram\n\nand at that point of time, there was an altercation between\n\nRichhpal Singh and Bhagwan Singh and that Bhagwan Singh\n\ninflicted lathi blows to Richhpal Singh and that the incident was\n\nwitnessed by Poona Mali. The witnesses denied this suggestion.We are compelled to reiterate that the explanation\n\ngiven by the witnesses for not making any effort whatsoever to\n\nsave Shri Richhpal Singh from the assault is absolutely flimsy and\n\nunacceptable looking at the fact that the accused were only two\n\nand the witnesses were four in number. The injured passed away\n\nin the morning at about 04.30 a.m.               Shri Ganga Singh and his\n\ncompanions claimed to have reached Nagaur Hospital with the\n\ndead body of Richhpal Singh in the early hours of morning, yet the\n\nFIR came to be lodged at 01.00 p.m., even though the police(Downloaded on 18/01/2023 at 11:48:45 PM)(16 of 18)              [CRLA-294/1992]\n\n\nstation is located adjacent to the hospital. We are further of the\n\nview that the very factum of registration of the FIR at 01.00 p.m.\n\non 06.01.1990 is doubtful because the copy of the FIR reached\n\nthe Court of the Magistrate concerned on 07.01.1990 at 10.30\n\na.m. as per the endorsement made thereupon.                      As the court\n\npremises are located nearby the Police Station Nagaur, there was\n\nno rhyme or reason for this gross delay in forwarding the FIR to\n\nthe court.The most significant statement from amongst the\n\nprosecution witnesses is that of Poonaram Mali (P.W.11).                   The\n\nwitness stated that the incident took place in the evening at about\n\n05.30 p.m. Richhpal Singh was watering his camel from the open\n\nwater tank outside his field.           Bhagwan Singh also brought his\n\nbuffaloes to the water tank. Richhpal Singh told Bhagwan Singh\n\nto stop his cattle, but the buffaloes could not be restrained, on\n\nwhich, Richhpal Singh have a lathi blow to Bhagwan Singh, who\n\nwas all alone.     Learned Public Prosecutor declared the witness\n\nhostile and confronted him with his previous police statement\n\n(Ex.P/12), wherein the witness had denied being present at the\n\nplace of incident. Nonetheless, we are of the view that the\n\nstatement of Poonaram (P.W.11) is reliable and is corroborated\n\nfrom attending circumstances available on record, most important\n\nbeing the fact that Bhagwan Singh was found having injuries when\n\nhe was arrested.Bhagwan Singh claimed to have received injuries in the\n\nvery same incident and his medical examination was conducted by\n\nDr. D.R. Choudhary on police requisition and medico-legal report(Downloaded on 18/01/2023 at 11:48:45 PM)(17 of 18)              [CRLA-294/1992]\n\n\n(Ex.D/7) was issued taking note of 3 injuries on the body of Shri\n\nBhagwan Singh.The conclusion that the FIR is a post investigation\n\ndocument is further affirmed from the circumstance that the FIR\n\nnumber is not mentioned in the postmortem report (Ex.P/9),\n\nwhich was prepared at 03.30 p.m. on 06.01.1990. Thus, there is\n\na grave doubt on the claim of the prosecution witnesses and the\n\nSHO Shri Birbal that the FIR was registered at the time mentioned\n\nin the report (Ex.P/1), i.e. 01.00 p.m.                 The accused Bhagwan\n\nSingh in the statement underSection 313CrPC made an honest\n\ndisclosure and stated that he came to the same tank for watering\n\nhis buffaloes while Richhpal Singh was watering his camel, at\n\nwhich point of time, a fight flared up and during the course\n\nthereof, he inflicted few lathi blows to Richhpal Singh and at the\n\nsame time, Richhpal Singh also gave him lathi blows. This fact is\n\ncorroborated from the medico-legal report (Ex.D/7) of Shri\n\nBhagwan Singh and so also the statement of Poonaram (P.W.11).\n\nThe statements of the material prosecution witnesses Ganga\n\nSingh (P.W.1), Ladu Ram (P.W.2), Madan Lal (P.W.3) and Rewant\n\nRam (P.W.4), wherein they claimed to have witnessed the incident\n\nis belied by the attending circumstances, which we have discussed\n\nin detail. The trial court, after appreciating the evidence available\n\non record convicted both the accused persons for the offences\n\npunishable underSection 323and325IPC. However, we are of\n\nthe firm opinion that the prosecution has failed to prove\n\ninvolvement of the accused Ganga Singh in the incident by\n\nplausible reliable evidence.         Qua the accused Bhagwan Singh,(Downloaded on 18/01/2023 at 11:48:45 PM)(18 of 18)              [CRLA-294/1992]\n\n\n                                   since he himself admitted participation in the incident, the findings\n\n                                   recorded by the trial court could be of some relevance, but as the\n\n                                   appeal of Bhagwan Singh has abated, we need not make any\n\n                                   evaluation of these findings.As a consequence, we are of the opinion that the\n\n                                   accused appellant Ganga Singh deserves to be acquitted by giving\n\n                                   him the benefit of doubt.              The impugned judgment dated\n\n                                   02.04.1992 rendered by the learned Additional Sessions Judge,\n\n                                   Nagaur in Sessions Case No.2/1990 is set aside. The appeal filed\n\n                                   by Ganga Singh is, thus, allowed.                 He is acquitted from the\n\n                                   charges. He is on bail. He need not surrender and his bail bonds\n\n                                   are discharged.   The appeal filed by the State of Rajasthan is\n\n                                   dismissed as being devoid of merit.However, keeping in view the provisions ofSection\n\n                                   437-ACrPC, appellant Ganga Singh shall furnish a personal bond\n\n                                   in the sum of Rs.40,000/- and a surety bond in the like amount\n\n                                   before the learned trial court, which shall be effective for a period\n\n                                   of six months to the effect that in the event of filing of a Special\n\n                                   Leave Petition against the present judgment, on receipt of notice\n\n                                   thereof, the appellant shall appear before the Supreme Court.(KULDEEP MATHUR),J                                     (SANDEEP MEHTA),J\n\n                                    Pramod/-(Downloaded on 18/01/2023 at 11:48:45 PM)Powered by TCPDF (www.tcpdf.org)