ARORA, J. - (1.) THIS appeal is directed against the judgement dated October 26,1976, passed by the Additional Sessions Judge, Udaipur, by which the learned Additional Sessions Judge acquitted the accused-respondent Rama.
(2.) ACCUSED Rama was tried by the learned Additional Sessions Judge, Udaipur, for the offences under Sections 307, 326 and 452 I. P. C. The case of the prosecution is that Smt. Deetli (PW 2), who had come in the Natra of PW 1 Roopa about five to seven years before the date of the incident, was earlier married to accused Rama. Smt. Deetli left her earlier husband-accused Rama and came to the Natra of the injured Roopa (PW 1) and as per the customs, prevalent in the Aadiwasis, Roopa paid 'chhutapa' amount to the accused. Somedays after the Holi festival, accused Rama met Roopa and asked him that he had not paid the 'chhutapa' amount and, therefore, he will see him as well as Smt. Deetli. In the intervening night between 17th and 18. 09. 1974, when Roopa, alongwith his wife Smt. Deetli, was sleeping in the 'padsal' of his house, at about 10. 00 to 11. 00 p. m. , the accused came there and inflicted injury on his hands. After receiving the injury, he got up and cried and hearing the cries, Smt. Deetli (PW 2), also, woke-up. As soon as they got up, they saw the accused Rama standing armed with a sword and aimed the second blow on his neck, which was intercepted by him by raising his hand and the accused could not inflict another injury and ran away. At that time, it was dark-night but he could identify the accused as he was married to the sister of his wife. The prosecution, in support of its case, examined ten witnesses. PW 1 Roopa and PW 2 Smt. Deetli are the two eye-witnesses to the occurrence. PW 3 Bheema and PW 4 Bala reached at the place of the occurrence after hearing the cries of PW 1 Roopa and PW 2 Smt. Deetli immediately after the occurrence. PW 5 Thawra has been produced by the prosecution to prove the motive of the crime. PW 6 Roopsi is a Motbir witness to the recovery of the blood on the wall and the recovery of the sheath of the sword and a small stick. PW 7 Raghuveer Singh, Station House Officer, has been produced with respect to the recovery of the sword from the house of the accused. PW 8 Dr. Surendra Kumar Mathur has been produced to prove the injuries on the person of the injured Roopa while PW 10 Dr. S. S. Buxi, who was Medical Jurist, has been produced, who had sent the requisition for x-ray of the injuries of Roopa, the injured. PW 9 Kalyan Singh was the Station House Officer, who conducted the investigation. The case of the prosecution rests mainly on the evidence of the eye-witnesses, namely, PW 1 Roopa and PW 2 Smt. Deetli, which is sought to be corroborated by the evidence of PW 3 Bheema and PW 4 Bala, who came to the place of the occurrence immediately after the incident. PW 1 Roopa has stated that Smt. Deetli is his wife, who came in Natra to him. Accused Rama has been married to the sister of Smt. Deetli. Smt. Deetli (PW 2) came to his Natra about eight years before the incident and he had paid the "jhagda' amount. In the rainy season, he, alongwith his wife Smt. Deetli, was sleeping in his house. While they were in the sleep, accused Rama came there and inflicted injury by the sword on his neck but as his hands were on the chest and neck, therefore, the injuries were caused on his hands. As he was in the sleep, therefore, he cannot say how many injuries were inflicted by the accused. He has further stated that immediately after receiving the injuries, he raised an alarm and on hearing the alarm, PW 3 Bheema and PW 4 Bala came to the place of the occurrence. Certain other persons, also, collected there. He followed the. accused after taking "jeewli (small stick) in his hand, but the accused ran away. The accused left the sheath of the sword at the place of the occurrence. In the cross-examination, he has admitted that it was a dark night and he was in the sleep. The incident took place at about 10. 00/11. 00 p. m. The statement of this witness clearly shows that the injured was in the slumber and woke-up only after receiving the injury and not before. According to this witness, the accused Rama inflicted only one injury by a sword on his person. The statement of this witness stands falsified from the medical evidence. According to medical evidence, there were seven injuries found on the person of the injured Roopa (PW 1), when he was medically examined by Dr. Surendra Kumar Mathur. He has, also, admitted that he was in the deep slumber and woke-up only after receiving the injury and it was a dark night. When it was a dark night and he was in a deep slumber, it was not possible for him to have identified the accused on account of darkness. The evidence of this witness, therefore, does not inspire confidence. Pw 2 Smt. Deetli has stated that she is living with Roopa (Pw 1) as his wife for last about six to seven years. She came in the Natra about 7 to 8 years before the date of the incident and previously she was married to accused Ramla. Last year, in the rainy season, she, alongwith her husband Roopa, was sleeping in the 'chopal'. Her husband cried and he, also, cried thereafter. Accused Rama inflicted three-four sword blows on the person of Roopa. After receiving the injuries by Roopa, she and her husband Roopa got-up. Her husband had a Jewli (Stick) in his hand. Bheema (Pw 3) and Bala (Pw 4), also, came there after hearing the cries and took her husband Roopa to kherwara. The accused ran away after leaving the sheath of the sword at that place. In the cross- examination she has admitted that it was a dark night, but she could identify the accused as the fire was burning in the house. She was confronted with her statement Ex. D. l recorded by the police under Section 161 Cr. P. C. regarding the presence of fire and she admitted that in her statement Ex. D. l, it has not been so mentioned. She, also, admitted that Roopa is her third husband. According to Pw 1 Roopa, the accused inflicted only one injury to his person and after his being awaken, no injury was inflicted to him by the accused, while this witness has stated that the accused Rama inflicted three-four injuries to her husband Roopa. This witness has, however, admitted that it was a dark night, but they identified the accused Ramla as there was a fire in the hut. This story of fire has been introduced by this witness only in order to show that there was a light in the hut, on account of which , there could be a possibility of the identification of the accused. But this theory of light does not find mention in her earlier statement recorded by the police under Section 161 Cr. P. C. and this is an improvement made in the prosecution case at the trial stage. A close scrutiny of the statement of this witness clearly shows that this witness is not speaking truth. The absence of light in the hut stands further fortified from the statement of Pw 3 Bheema, who has clearly stated that after hearing the cries of Roopa and Smt. Deeta, he reached at the place of the occurrence. He has further stated that at that time there was complete darkness and in that darkness, it was not possible to identify the accused. Pw 4 Bala has come-up with a new case. He came at the scene of the occurrence after hearing the cries of Smt. Deeta and Roopa and at that time, he found the injury on the person of Roopa and they informed him that accused Ramla had inflicted sword injury to the injured Roopa. It was a dark night, but there was a light in the hut of Roopa on account of the presence of Sigdi. In the statement Ex. D. 2, recorded by the police under Section 161 Cr. P. C. , this witness slated that Bheema lit the light and in that light, they saw Roopa in a injured condition. But in the statement before the Court, when he was confronted with the police statement Ex. D. 2, he denied that Bheema lit the light and stated that the light was on account of the Sigdi. The evidence of these eye-witnesses is not corroborated from the medical evidence. Moreover, it was a dark night and in that dark night, nobody could have identified the accused. There is one more infirmity of (he case. The incident is alleged to have taken place in the night intervening 17th and 18. 09. 1974, and the report of the incident was lodged with the Police Station, Kherwara, on September 18, 1974, at about 10. 30. a. m. , but this F. I. R. reached in the Court, for the first time, on October 14, 1974, i. e. , alter about 25 days. This, also, raises a suspicion in the prosecution case. After over-all assessment of the prosecution case, we are of the opinion that the prosecution has failed to prove the case against the accused beyond reasonable manner of doubt. The learned lower Court has rightly appreciated the evidence on record and the assessment of the evidence, made by the learned Additional Sessions Judge, Udaipur, cannot be said to be, in any way, arbitrary or illegal. In this view of the matter, we do not find any merit in the appeal and the same is hereby dismissed. . ;