- (1.) This State appeal has been filed by the State of Rajasthan against the judgment and order dated 22.8.1989 passed by the learned Chief Judicial Magistrate, Barmer in Cr. Case No. 31/83 by which he acquitted the accused respondents of all the charges framed against them i.e. for the offence under Sections 147, 148, 323, 323/149, 324, 324/149 and 452 IPC.
(2.) The facts giving rise to this appeal, in short, are as follows: On 11.6.1981, P.W.8 Dilwar lodged an oral report with the Police Station Shiv District Barmer stating that his house was near the house of accused respondent Sodha and he went to the house of accused respondent Sodha where other accused persons were also sitting and they told P.W.8 Dilwar that they had come there with an intention to do CID and upon this, P.W.8 Dilwar came to his house. It is further stated in the report that when P.W.8 Dilwar was sitting in the chowk along with his wife PW4 Mst. Mariyam, all accused respondents having lathies and kulharies in their hands came there and abused P.W.8 Dilwar. Thereafter, the accused respondent Sodha gave kulhari blow on the head of P.W.8 Dilwar, as a result of which he fell down and thereafter, accused respondent Davad inflicted kulhari blow on the left eye of P.W.8 Dilwar and rest accused persons also beat him. On this report, police registered the case and chalked out FIR Ex.P/3 and started investigation. During investigation, P.W.8 Dilwar was got medically examined and his medical examination report is Ex. P/6, which shows that he received seven injuries and out of these seven injuries, injury no. 1 was incised wound caused by sharp edged weapon and injuries were simple in nature. After usual investigation, the police submitted challan against the accused respondents for the offence under Sections 147, 148, 149, 323, 324, 447 and 307 IPC in the Court of Magistrate, from where the case was transferred to the Court of Session. However, the learned Sessions Judge, Balotra sent the case back to the learned Chief Judicial Magistrate, Barmer after discharging the accused respondents for the offence under Section 307 IPC vide order dated 17.1.1983. On 14.2.1983, the learned Chief Judicial Magistrate framed charges against the accused respondents Sodha and Davad for the offence under Sections 148, 324, 323/149 and 453 and against rest accused respondents for the offence under Sections 147, 323 and 324 read with 149 and 452 IPC. The charges were read over and explained to the accused respondents, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as nine witnesses and got exhibited some documents. Thereafter, statements of the accused respondents under Section 313 Cr.P.C. were recorded. In defence, two witnesses were produced by the accused respondents. After conclusion of trial, the learned Chief Judicial Magistrate, Barmer vide his judgment and order dated 22.8.1989 acquitted the accused respondents of all the charges framed against them holding inter-alia that there are material contradictions between the statements of the prosecution witnesses and they do not tally with the medical evidence. Aggrieved from the said judgment and order dated 22.8.1989 passed by the learned Chief Judicial Magistrate, Barmer, this appeal has been filed by the State of Rajasthan.
(3.) In this appeal, it has been argued by the learned Public Prosecutor that it is wrong to say that statement of P.W.8 Dilwar is not corroborated by medical evidence, but on the contrary his statement gets corroboration not only from medical evidence but also from evidence of eye witnesses, Hence, the impugned judgment of the learned CJM suffers from basic infirmities and the same is liable to be set aside.;