V. S. DAVE, J. - (1.) - The facts leading to these appeals & revision demonstrate as to how the criminal courts are used for working the vengeance and personal vendetta. The State as well as the complainant Bhagwat Prasad approached this Court praying that 23 accused respondents in these cases-be convicted and sentenced for offences under Sec. 147, 452, 302/149 IPC etc. and the acquittal recorded in their favour by the trial Court vide judgment dated 5-4-89 be set aside, while four accused appellants in SB Criminal Appeal No. 304/89 Hansraj Tara Chand, Hari Ram and Mool Chand challenged their conviction for offence under Sec. 323 IPC. After being convicted under section 323 I. P. C. they had been given benefit of probation under the provisions of Probation of Offenders Act.
(2.) ON 1st July 1985 Bhagwat Prasad (PW1) lodged a report at Police Station Kherthal district Alwar at 1 !. 30 P. M. where in it was alleged by him that at about 8. 30 p. m. all the 23 accused formed an unlawful assembly and trespassed in his house. He and other members of his family were taking meal at that time. Accused started abusing and Mool Chand gave a lathi blow on his head. Hansraj gave a blow on the head of Hari Ram. Udairam was inflicted injury by Tara Chand, Mahadevi by Tara Chand and all the accused caused injuries by lathi, kicks and fist. Litigation was going on between the parties since long and there was enmity. He stated that the fight was still going on and he having found out an opportunity, had escaped to lodged the report. Panna Mali and other has arrived at the spot. ON receipt of this report, a case under Sec-tions 147, 148, 149, 323 and 452 IPC was registered. ONe Smt Santosh w/o Sohan Lal aged 30 years was admitted in General Hospital, Alwar on the night intervening between 1. 07. 1985 as a case of pregnancy with blunt injury on abdomen. She was shifted to Janana Hospital on 2 7-85 where on the evening between 4/5. 07. 1985 she aborted dead female foetus of about 28 weeks. Her condition worsened and she expired on the morning of 6. 07. 1985 and the case was altered on one under Sec. 302 IPC. Police, after investigation, submitted a charge-sheet against as many as 23 accused, all named in the FIR. Hansraj and Tara Chand were read over charges for offences under Sec. 302 IPC simp licitor along with other offences while rest of the accused were charged for offence under Sec. 302/149 inter alia other offences. Prosecution examined 18 witnesses in support of its case. Accused denied the prosecution story and submitted that it was the complainant party who came to beat him and inflicted injuries on the person of some of the accused who had thrown stones in exercise of right of private defence. The learned trial Judge found the prosecution story to be highly doubtful and acquitted all the accused-appellants for all the offences except four, who have been convicted for offence under Section 323 IPC and were given the benefit of provisions of Probation of Offenders Act. It is this judgment which is under challenge. As all the three cases arises out of the same judgment, they are being disposed of by this one judgment. Bhagwat Prasad (PW 1) is a Teacher, who had gone to lodge the report and stated therein that while he had come to lodge the report the fight was still going on and he had managed to escape some how or the other and have corns running to lodge the report. He maintains the same in his statement except making an amendment that 5-6 persons has entered the house and they were Tara Chand, Mool Chand, Hans Raj, Hari Ram and Lakhpat. This witness has not mentioned a word either in the FIR or in his statement in the court about the injury having been inflicted to Mst. Santosh, the deceased by any of the accused. Even there is no mention of her sustaining the injuries in the incident. He then states that he got the report lodged after reaching Police Station Kherthal by one person whose name he does not know. This witness is a rank lier as after the incident had been over, he went to the office of his counsel Shri Duli Chand Mishra (DWl ). According to him, he got the report written in the Police Station. He does not want to tell the name of even the person in whose tractor he had gone to the police station. He then stated that he was immediately sent to Kherthal Hospital. He has been confronted with various portions of his report to which also he has denied. According to him, all the accused were armed with lathis. He however, admitted that Kanhaiyalal accused had instituted a suit against him and members of the complainant party which had been decreed. He further denied that they have been restrained from going on this place of occurrence. According to him, ADJ had gone to the spot. He then stated that it is wrong that there is any judgment against his party. The judgment is in their favour and then again stated that suit has been decreed by the Munsif but they have filed an appeal against it. The witness is not consistent on any part of his statement and was put entire case of right of private defence in his cross-examination to which he denied. He was asked that complainant party was obstructing the right of way of the accused-persons, which was objected to and complainant party inflicted injuries on accused Kishan, Fateh Singh, Hariram and Mool Chand. He admitted that there was a cross case against them of the same incident, which is still pending and further that Santosh was having 7 to 8 months pregnancy.
(3.) BABU Lal (PW 2) arrived at the house of complainant Bhagwat Prasad after he heard cries and there he saw that Tara Chand, Hariram, Hansraj and Mool Chand had been inflicting injuries. Tara Chand was caught by Santosh to whom Hansraj had given lathi blow in the stomach. Tara Chand gave a kick in her stomach. There after, she was taken to Hospital where she died. House of this witness is about 1 or 2 furlong away and according to him when he rea-ched there, Bhagwat was not there. He then stated that accused were thro-wing stones from out side and then admitted that Hariram and Bhagwat had told him about the injuries caused to Santosh, which he mentioned in his police statement. This witness too is not worthy of any reliance. Firstly, he could not have even heard the cries, if he had been staying at 1 or 2 furlong away as he was at his own residence and secondly, the number of injuries sustained by the accused and particularly deceased could not have taken as much time as the witness had shown for arriving there. Besides this, according to his own police statements he had given the statement as the story was narrated by Hariram and Bhagwat, Hatiram (PW 3) is an injured eye witness, who was sleeping in his own Nohra where his elder brother came at about 8 or 8. 30 P. M. and Santosh deceased was cleaning the untensils. At that time, accused Hansraj, Tara Chand Mool Chand and Hariram came where an enclosure (Lashai) has been made. They starting pelting stones and demolishing the compound on which they were told not to do so, on this Hansraj caught him. Santosh came out, who was called by Mool Chand and Tara Chand. Hariram and Hansraj caused injuries by lathies Babu Lal and Udairam also arrived, who too were beaten. This witness has admitted that case is going on about this enclosure being made in which they have lost the case in lower court but they obtained stay in appeal. When the stay was obtained, he does not know. This enclosure is near the plateform. When these persons came, he had asked them not to demolish it. According his police statement, the incident has taken place on his Chabutrara to which he denied in the court. The witness has admitted that he has not mentioned regard ing Santosh being caught by Hansraj in his police statement and further that he had not given any statement to police prior to death of Santosh. He too was put the case of right of private defence in cross-examination to which he refused. House of Udairam (PW 4) is about 10 houses away from the house where the incidenth ad taken place, who also arrived on hearing the cries. Accor-ding to him Hansraj and Hariram were baating another Hariram complainant. Santosh also arrived on the spot and Moolchand caught her. Tara Chand gave a kick and Hansraj a lathi blow. He also was given an injury by Rohtash. Accor-ding to him rest of the accused were standing out side. They were armed or not he was unable to say. The witness was confronted on various parts of his police statement to which he denied and then stated that since the incident had taken place 5 years before he has forgotton everything which statement is false because the incident took place in July, 1987 and the statement were recorded in June, 1988 which is less than one year. He then came with an explanation that he had become unconscious so he knows nothing. He even denies the pendency of the cross-cases. . ;