- (1.) Heard learned counsel for the appellant and examined the impugned judgment as well as record of the trial court.
(2.) This appeal on behalf of the State of Rajasthan u/s 378 Cr.P.C. is directed against the impugned judgment and order dated 11.9.1980 passed by the Additional Sessions Judge No.1, Alwar, in Sessions Case No.6/80 whereby the learned trial court acquitted all the nine accused respondents from the charges levelled against them. Briefly stated the facts of the case are that PW 1 Babu Singh lodged a report at Police Station Tehla, District Alwar, on 2.11.79 in respect of alleged murder of Prabhu Singh wherein it was alleged that on 1.11.79 at about 6-7 PM two persons of Prabhu Singh came and informed that dead body of Prabhu Singh is lying in the forest of Kutuka. He went at the spot and there it was told by Moti Singh that at about 6-7 PM, they heard some voice about beating, then he, Hakim Singh and Gulab Singh went there and saw that Prabhu Singh was being killed. Accused Mulya, Bobdia, Gangasahay, Ganganath, Surjiya, simbhu and Kajod R/o Kutuki, had sword, Kulhari etc. On the basis of above report, the police registered a case u/s 302, 147, 148 and 149 IPC and commenced investigation. A postmortem was conducted on the dead body and the postmortem report was prepared which was exhibited as Ex. P 2. The accused persons were arrested and as per information of five accused persons, the weapons were recovered. After completion of investigation, the police submitted a charge-sheet against the accused persons, who were committed for trial to the court of Sessions Judge, who transferred the case for trial to the court of Additional Sessions Judge No.1, Alwar. The trial court framed charge against the accused respondents for the offence u/s 147, 148, 302 and 302/34 IPC. The accused persons denied the charge and claimed to be tried. In support of the case, the prosecution examined PW 1 Babu Singh, PW 2 Dr. K.C. Nagpal, PW 3 Moti Singh, PW 4 Gulab Singh, PW 5 Ram Chander, PW 6 Hakim Singh, PW 7 Gokal Singh, PW 8 Kishanlal and PW 9 Ramhet and produced 30 documents - Ex P 1 to Ex. P 30. Thereafter, the statements of accused persons were recorded u/s 313 Cr.P.C. wherein they showed their innocence and that they have been falsely implicated in the case due to enmity. The defence examined the statements of DW 1 Ram Ratan and DW 2 Ramsi. The learned trial court after considering the evidence on record and hearing the parties, acquitted all the accused persons from all the charges on the ground that the prosecution has failed to prove the charges against them beyond all reasonable doubts. Being aggrieved with the same, the present appeal has been filed after grant of leave to appeal by this court.
(3.) The submission of the learned counsel for the State is that this is the case wherein there were four eye witnesses, namely; Moti singh (PW 3), Gulab Singh (PW 4), Hakim Singh (PW 6) and Gokal Singh (PW 7) who consistently stated before the court that accused persons were giving beating upon the person of deceased. Accused Bobadia inflicted a blow by Barchhi on the head of deceased Prabhu Singh. Accused Simbhu inflicted a blow by Barchhi on the neck of deceased. Other accused persons also inflicted injuries on the person of deceased. He further contended that there was no contradiction in the statements of the eye witnesses and the trial court committed an illegality in acquitting the accused respondents. He also referred the statements of prosecution witnesses including the statement of PW 9 Ramhet, Investigating Officer. He also contended that the recovery of weapons were also made, therefore, there was corroboration of statements of eye witnesses but the trial court wrongly acquitted the accused respondents, He, therefore, prayed that the order of the trial court be set aside and the respondents be convicted and sentenced for the charges levelled against them. Since no one is present on behalf of the respondents, therefore, we could not get any assistance on their behalf and we, ourselves, examined the finding of the trial court in the light of submissions of appellant and the record of the trial court minutely. From the impugned judgment of the trial court, it is clear that the trial court has disbelieved on the statements of four eye witnesses, namely; Moti Singh (PW 3), Gulab Singh (PW 4), Hakim Singh (PW 6) and Gokal Singh (PW 7) for the following reasons : (i) The incident took place on 1.11.1979 at about 6-7 PM and so-called eye witnesses were also present at the spot but they did not lodge the report immediately and waited for next day and even on the next day, the FIR was not lodged by the eye witnesses but by Babu singh (PW 1) who is not the eye witness. (ii) When the eye witnesses were present at the spot and during the investigating of the case also, why their statements were not recorded immediately by the investigating agency and no explanation has been given for not recording the same before 6.11.1979. (iii)The incident took place in between 6-7 PM on 1.11.1979 and as per evidence available on record, the sun set time on that day was 5.35 PM, therefore, it was not possible to see the accused persons. (iv) The information furnished by three accused persons u/s 27 of the Evidence Act and the recovery of weapons in pursuance thereof makes it clear that no blood stained was found on the weapons and the same is clear from the recovery memos Ex. P 24 (Accused Kajod), Ex. P 25 (accused Gangasahay) and Ex. P 26 (accused Simbhu). (v) Both the independent witnesses of the recovery of weapons i.e. Motbirs, were not examined by the prosecution during the trial of the case. (vi) The name of Gokal Singh (PW 7), the so-called eye witness, does not find place in the FIR. (vii) There was material contradiction in between the distance of place of incident and the place where the accused persons were sitting i.e. Jal Wala well. (viii) The eye witnesses are interested witnesses. (ix) There was enmity in between deceased party and the accused party. We have examined the aforesaid reasons on the basis of record as well as the submissions of the learned Public Prosecutor.;