MOHAMMAD RAFIQ,J. - (1.) This appeal, on grant of leave, has been preferred by the State against judgment dated 20.07.1988 passed by Additional District and Sessions Judge, Bundi (for short 'the trial court'), whereby the accused-respondent was acquitted of the charge for offence under Section 302 IPC.
(2.) The facts of the case are that on on 12.10.1986 at about 7.15 A.M. complainant Kalyan (P.W.4) submitted a written report at Police Station Thana Dei alleging that on 11.10.1986 the complainant along with his mother Nandi, Sita Devi and Sumitra had gone to temple of Kankali Mata at Gram Guda Sadavartia from their village. They reached there at 6.00 P.M. The accused respondent Durgalal was armed there with Kulhadi. When he heard the cry of Sita, who was sleeping nearby the Chowk, he rushed there and saw that Durgalal, armed with Kulhadi, attacked Sita. Villagers tied down the accused. Sita died due to injuries inflicted by the accused. On the basis of aforesaid information, a case was registered and investigation commenced. Upon completion of investigation, police filed charge sheet against the accused-appellant in the Court of Munsif and Judicial Magistrate, Nainwa from where the case was committed to the Court of Sessions, Bundi. Ultimately, the trial of the case was made over to the court of Additional Sessions Judge, Bundi, which framed the charge against the accused-respondent for offence under Section 302 IPC. The accused-respondent denied the charge and claimed to be tried. The prosecution in support of its case produced 13 witnesses and exhibited 15 documents. Thereafter, accused respondent was examined under Section 313 Cr.P.C., 1973 wherein he stated that he has been falsely implicated in the case. No witness was produced by the defence but five documents were exhibited on its behalf. Upon completion of trial, the trial court vide judgment and order dated 20.07.1988 acquitted the accused respondent. Hence this appeal.
(3.) Ms. Sonia Shandilya, learned Public Prosecutor argued that the trial court has erred in acquitting the accused-respondent whereas evidence available on record proves the charge against him beyond reasonable doubt. The trial court was wholly unjustified in not believing the testimony of Ram Kishan (P.W.2) and Mangilal (P.W.3) only because their names were not mentioned in the FIR. It is well settled that first information report is not an encyclopedia of the case and many things, which may not find place in the first information report, can still be proved by evidence. The trial court has further committed error in giving undue importance to minor contradictions with regard to time of incident mentioned in the first information report. The trial court erred in law in holding that the villagers had also submitted a separate a written report, which was not produced in the Court. This finding is based on surmises and conjectures. There was no necessity for the investigating officer to establish presence of eye witnesses. Eye witnesses have been wrongly disbelieved by the trial court on the premise that when the injuries were inflicted to the deceased, all the witnesses were sleeping and that they woke up only after hearing cry of the deceased, therefore, they could not be believed. The fact is that all the eye witnesses saw the accused armed with kulhadi. In fact, the accused was caught red handed at the place of occurrence with blood stained kulhadi, which on chemical examination was found to contain human blood. The trial court erred in acquitting the accused on the ground that accused at the time of incident was a person of unsound mind and he did not know implication of his acts. It is contended that procedure contained in Section 334 Cr.P.C., 1973 has also not been followed by the trial court. Therefore, the accused respondent could not be acquitted. It is, therefore, prayed that appeal be allowed and the accused-respondent be convicted and sentenced for the aforesaid offence.;