Tatia, J. - (1.) BY THE COURT: These two revision petitions have been preferred by Smt. Kamla Devi w/o Sunil Kumar against the judgment dated 30.7.2009 passed by the learned Addl. Sessions Judge, Sangaria in Sessions Case No. 24/2005 by which all the accused have been acquitted who were charged for committing offences punishable under Sections 147, 148, 447, 302, 307 and 325 IPC and in alternative, Section 325 read with Section 149 and 323, IPC. The petitioner is wife of deceased.
(2.) THE D.B.Cr. Revision Petition No. 27/2010 was preferred on 5.10.2010 wherein the petitioner has challenged acquittal of only three accused, Badri Prasad, Ajay Pal and Angad Kumar and the coordinate Bench of this Court vide Order dated 20.10.2010 observed that whether the revision confined to only three accused and leaving three accused is maintainable when six accused were tried together for all the offences in one criminal trial and on the basis of common evidence, all have been acquitted. THErefore, it appears that second revision being D.B. Criminal Revision Petition No.6877/09(Dr(J)) has been preferred to over come the difficulty which may have come in the way of the petitioner in view of the order dated 20.10.2010. However, since the petitioner has already preferred revisions both in time, therefore, without entering into that controversy whether the first revision seeking reversal of the judgment for three of the accused out of six is maintainable or not, we heard both the petitions on merit of the revision petitions. As per the prosecution case, on 12.7.2004, one Subhash Chandra lodged a report in the Police Station, Sangaria stating therein that because of the old enmity after drawing water from the canal, when the victim Sunil Kumar along with the complainant with Patel and Om Prakash returning back to their houses, at about 10.30 p.m., all of sudden 7-8 persons came on two motor cycles and one jeep with lathis, gandasis, pistols and guns. Badri Prasad and Ajay Pal had gandasis with them. They all surrounded the complainant and the victim, and Badri Prasad and Ajay Pal started beating by gandasis to Sunil on his head. Other accused also started beating and they killed Sunil Kumar. The complainant along with Patel and Om Prakash though intervened but the victim died. The complainant and other also suffered injuries. However, the assailants ran away from the spot. On this report, FIR No. 425/04 was registered and after investigation challan was submitted in the court. The accused were charged with the offences referred above, which they denied and sought trial. In the trial court, total 20 witnesses were produced by the prosecution side and the statements of the accused were recorded under Section 313, Cr.P.C. The trial court found that the deceased Sunil Kumar died because of the injuries suffered by him which are 19 in number and those injuries were ante-mortem, but so far evidence connecting the accused with the crime is concerned, the prosecution failed to produce any sufficient evidence, as the witnesses produced by the prosecution turned hostile. It will be worthwhile to mention here that even the complainant PW-1 Subhash Chandra, who lodged the report Ex.P.1, on the basis of which Ex.P.2 FIR was registered, turned hostile and he who alleged that he was present at the spot, did not support the prosecution case. He was recalled by the court in view of the fact that he submitted affidavit in the High Court wherein he implicated the present accused in the commission of crime. In further evidence of PW-1 Subhash Chandra, he even denied filing of the affidavit Ex.P. 92. There is one more witness Subhash Chandra s/o Shiv Kumar @ Patel, who was coming with complainant PW-1 Subhash Chandra s/o Surja Ram and the victim, he also turned hostile. Same is the position with PW- 9 Bhagwan. The witnesses, in substance, admitted that the memos prepared by the police and their signatures were obtained but those were obtained in the police station. PW- 2 Vinod Kumar did not support the prosecution and stated that his signatures were obtained on blank papers by the police. In addition to above, PW-1 Subhash Chandra who earlier submitted affidavit implicating the accused persons and in the same way, PW-12 Om Prakash who also submitted affidavit Ex.P.61, also denied the contents of the affidavits as well as the police statement Ex.P.46. The trial court also considered the medical evidence and looked into the injuries suffered by the victim which though in number 19, but at the same time, it was alleged that Badri Prasad had gun with him and the trial court observed that in that situation, it is unbelievable that instead of killing the victim by fire-arm, Badri Prasad would have inflicted injuries by gandasi as there was no gun-shot injury on the body of the victim. The trial court found that holding both the gun and gandasi and inflicting injuries by gandasi could not have been possible. The learned counsel for the petitioner Shri Pradeep Shah and Shri M.K. Garg submitted that even if the witnesses who subsequently turned hostile, may not have supported the prosecution case but that only exposes the character of the witnesses who themselves submitted the affidavit in the High Court, even denied their filing of the affidavits, which clearly shows that the witnesses were win over by the accused party as their statements given on oath in affidavits should not have been rejected by the trial court. We considered the submissions of the learned counsel for the petitioner and we are of the view that the trial court has considered the evidence in detail and also considered the affidavits Ex.P.61 and Ex.P.92 and rightly did not accept the affidavit evidence alleged to have been given by the two witnesses against the statements given in the court. The trial court not only considered the evidence of these witnesses who allegedly were the eye-witnesses but also considered the totality of the facts which includes the doubtful recoveries and rightly observed that in Ex.P.19- recovery memo of gandasi, it has been mentioned that there was blood on the edge of the gandasi but gandasi which was sent for FSL report (Ex.P.73) in the packet, the gandasi was found without any blood which casts serious doubt on the evidence. The other recoveries were also found doubtful.
(3.) IN the light of all evidence which has been considered by the trial court, when the trial court examined the motive, then found that the prosecution failed to prove the motive also which indicates towards innocence of the accused. We may observe that because of not proving the motive alone, there could not have been acquittal of the accused but the trial court has not acquitted the accused only because of not proving the motive by the prosecution. The scope under the revisional jurisdiction of the High Court is very limited and yet we look into the evidence, but found that the trial court has not committed any error of fact in acquitting the accused persons and it is not a fit case for entertaining the revision petitions by the High Court against the judgment of acquittal dated 30.7.2009. In view of the above, both the revision petitions are dismissed.;