- (1.) THIS appeal has been presented against the judgment dated 30. 11. 77 passed by the Sessions Judge, Bharatpur in Sessions Case No. 40/77 whereby the learned Sessions Judge acquitted the respondents from all the charges levelled against them.
(2.) BRIEFLY stated, the facts of the case are that Rampershad (PW-1) lodged a report at P. S. Kumher on 8. 3. 77 at 10 AM. It was alleged in that report that on 6. 3. 77 at about 10 AM the informant and his father Roopkishore were harvesting the mustard crop in their Khalyan At that time, the accused-respondents Pooran, Laxman and Brijwasi went to the Khalyan of the informant armed with spade and lathis with the intention to commit murder of Roopkishore. Brijwasi gave threatening to his father that Roopkishore is a great litigant and he had instituted a lot of cases against them (accused) and as such they are facing a lot of trouble. Therefore, we will finish Roopkishore today. After this threathing accused Laxman and Brijwasi caught hold of Roopkishore and Pooran gave a spade blow on the head of Roopkishore. As Roopkishore was falling down, Laxman gave another blow on the person of Roopkishore which hit him on the back. Roopkishore started bleeding from his head injury. It has been further alleged that Pw-1 Rampershad raised an alarm. Lehricharan and others who were present nearby the scene of occurrence came to the spot. Brijwasi also raised a lathi to inflict a blow on the person of Roopkishore but it was caught hold of by Rampershad, and thus the above eye witness and Rampershad saved Roopkishore from further beating. The accused respondents thinking that Roopkishore might have died, ran away. On this report the police registered a case under Sec. 307/34, IPC. Roopkishore expired on 9. 3. 77 at 4. 30 P. M. and, therefore, the case under Sec. 307, IPC was converted to Sec. 302, IPC. After completing the investigation, a challan was filed against the accused-respondents in the court of Addl. Munsif & Judicial Magistrate (1), Bharatpur, who committed the accused to the Court of Sessions on 30. 4 77. The learned Sessions Judge framed charges against the accused to which they did not plead guilty and claimed to be tried. The prosecution produced as many as 13 witnesses in support of the charge framed against the accused. Then the statements of the accused u/s. 313, Cr. P. C. were recorded who denied the allegations levelled against them by the prosecution witnesses. It was further alleged by the respondents that because of jealousy and strained relations the witnesses have deposed against them. After hearing arguments, the learned Sessions Judge acquitted the respondents from all the charges levelled against them. Hence, this appeal. Heard learned counsel for the parties. The learned P. P. Mr. R. Alvi and the learned counsel for the complainant made the following submissions:- 1. That the learned Sessions Judge committed error in acquitting the accused-respondents on the ground that the report of the incident was lodged after a long delay. Rampershad (PW-l) has satisfactorily explained the delay in his statement as well as in the report itself wherein it has been stated that he could not lodge the report earlier because he was attending his father in the hospital at Bharatpur and that he regularly attended him. The condition of the injured remained serious throughout, and, therefore, it was not possible for the informant to leave his father alone in the hospital. 2. That the lower court has erred in not believing the reliable and trustworthy witnesses of the prosecution. 3. That the lower court has wrongly appreciated the prosecution evidence and has committed an error in drawing adverse inference for the non-production of one Bhikki, who is admitted to be present at the spot by the prosecution witnesses. 4. That the lower court has committed an error in disbelieving the prosecution story on the ground that the F. I. R. was sent to the Magistrate concerned after a long delay. 5. That inconsistency in the prosecution version may occur but that by itself is not sufficient to throw out the prosecution case. 6 That though the witnesses of recovery of the blood stained spade (Fawra) turned hostile but still the evidence of recovery of the Fawra can be relied upon on the basis of the statement of the Investigation Officer.
(3.) LEARNED counsel for the respondents, on the other hand argued that the delay in lodging the report has not been explained satisfactorily and that the eye witnesses are not only related to the deceased but are inimical towards the accused, which has been admitted by the eye witnesses in their cross-examination. The delayed despatch of F. I. R. to the concerning Magistrate is a serious infirmity and it casts a great doubt on the prosecution version. He has further submitted that it has been admitted by the prosecution witnesses that Bhikki whose house is just near the place of occurrence also appeared at the spot, but he has not been produced by the prosecution. As such, the adverse inference drawn by the learned Sessions Judge cannot be said to be bad in law. He also submitted that the recovery of the spade has not been proved. The recovery has been made from an open land accessible to all. It has been stated that the spade was blood stained, but there was no such mention in the recovery memo which makes the recovery doubtful. Moreover, the recovery was made after 18 days of the occurrence, and the spade was sent to the Serologist after 26 days. The learned counsel for the respondents further contended that the deceased sustained injury by a blunt object The prosecution witnesses have alleged that the injury was caused by Fawra. Looking to the statements and the allegations there was no reason to use the blunt side of the spade in a case where the offender was having a sharp object, and as such it should be presumed that the sharp side of the weapon was used. Because of this reason the prosecution evidence becomes doubtful. The learned counsel lastly submitted that the appeal is against the judgment of acquittal, which is based on good reasonings. Therefore, interference in the judgment of acquittal is not possible. We have considered the arguments advanced by the learned counsel for the parties and have perused the entire record. It is an admitted fact that the occurrence took place on 6 3. 77 at 1. 30 P. M. and the report was lodged on 8 3. 77. ft is thus clear that there is a delay in lodging the report. It has also been contended on behalf of the prosecution that the informant was of tender age at the time of occurrence. It was difficult for him to leave his father on the death bed and to rush for lodging the report. We have gone through the statement of PW-1 Rampershad wherein he has admitted that he along with Ramdayal. Durga Pershad, Kewalram and other persons took the deceased to the hospital. It has been further admitted by PW-1 Rampershad that Lehricharan also visited the hospital. PW-3 Lehricharan also admitted that Rampershad, Kewalram and mother and wife of the deceased were also attending the deceased on 7. 3. 77. PW-1 Rampershad has also admitted before the trial court that his brother Rajendra Pershad also came in the hospital on the day of occurrence in the evening and he (PW-1 Rampershad) narrated the whole incident to Rajendra Prasad, who is a Government servant in police department, and was posted in Bharatpur city, at Mathura Gate Police Outpost. PW-5 Ram Dayal has stated that one police man from Mathura Gate also came to see the condition of the deceased. This statement of Ramdayal is corroborated from the entry in Roznamcha of Mathura Gate Police Outpost. It has also been stated that a letter from the doctor who was attending the deceased was received at the said police outpost, wherein it was desired that a dying declaration of Rookishore be recorded immediately. Alongwith letter (Ex. P-7) a constable was sent to the hospital and the Medical Officer Incharge of the ward was requested to report whether the patient is in a position to give statement or not, and on this the Medical Officer of the Ward reported that the patient was semi-conscious and was unable to give statement. This report is marked as C-D on Ex. P-7. It is thus clear that the explanation given by Rampershad in lodging the report after two days cannot be held to be satisfactory. He was not the only person who was attending his father Roopkishore in the hospital. Report (Ex. P1) is a typed report which starts as under:- ;