RATHORE, J. - (1.) THE accused-appellant has filed this appeal under Section 374 (2) Cr. P. C. against the judgment dated 5. 6. 85 passed by the learned Additional District and Sessions Judge, Baran in Sessions Case No. 54/83 whereby he has convicted him for the offence under Section 326 IPC. , sentence for 3 years R. I. and a fine of Rs. 2,000.00 and also for the offence under Section 323 IPC, sentenced for 1 year R. I. and a fine of Rs. 100.00.
(2.) THIS case was initiated on a report lodged by Anandi Lal Mali on 7. 2. 83 at Police Station Mangrol, District Kota (now Baran ). It was stated in the report that the informant had gone to his fields to water them by canal water. It is further stated in the report that the informant found that the accused appellant had blocked the flow of water. It is also stated in the report that when the informant reached the field of Latoor Mali, the accused-appellant had asked the informant as to why he had taken water from the canal when he had cleaned the passage of water. The informant replied to him that he would remove the blockade, if caused, while taking the water. Therefore, the accused- appellant Kalu Lal is said to have caused injury to the informant on his shoulder with a `fawra'. One Amarchand intervened and thereafter accused Kalu Lal went away to his nearby field. In the report, it was also stated that the mother of the informant, Smt. Kastoori, was threshing grams (Chana) in the field. At about 3. 30 pm. when Smt. Kastoori had gone to drink water in between the field of Ranglal and Ramnath, the accused- appellant caused injury on her head. On the hue and cry having been raised by the informant and Amarchand, the accused-appellant ran away. On the aforesaid report, the police registered a case for the offence under Section 307 IPC. against the accused appellant for having caused injuries to Anandi Lal and Kastoori. On the conclusion of the investigation, the police filed challan under Section 307 IPC. Thereafter, the case was committed to the Court of Sessions where, on 29. 2. 84 charges came to be framed against the accused appellant for the offences under Sections 307, 324 and 323 IPC. The accused-appellant denied the charges. In support of its case, the prosecution produced 11 witnesses during the course of trial. The prosecution had also submitted 13 documents which were duly exhibited. The statement of accused-appellant was then recorded under Section 313 Cr. P. C. In the said statement, the accused denied the fact of having caused any injury to Anandi Lal. On the contrary, he had stated that it was Anandi Lal who caused injury to him. He also stated that no `fawra' was seized from him and the entire prosecution story is false. On the conclusion of the trial, the learned trial Court acquitted the accused-appellant for the offence under Section 307 IPC. But the learned trial Court convicted the accused and sentenced him as aforementioned. The learned counsel for the appellant has assailed the judgment passed by the learned trial Court on various grounds. He has contended, with all vehemence, that the prosecution version in this case is totally false and concocted. Moreover, according to him, the prosecution has failed to prove its case beyond reasonable doubt and this fact has been partly accepted even by the learned trial Court. The learned counsel has further contended that the complainant had in this case come with a concocted story due to enmity between the families as both are descendants of a common ancestor and also with an exaggerated version, so much so that even the learned High Court has not found the case to be one of an attempt to murder. Therefore he has submitted that the accused-appellant has not committed any offence and he deserves to be acquitted. On the other hand, the learned Public Prosecutor has supported the judgment dated 5/6/1985. Further, he has submitted that the learned trial Court has thoroughly looked into the material on record and rightly convicted and sentenced the accused-appellant for the offence under Section 326 IPC. He has also submitted that the learned trial Court has not committed any error in arriving at the findings which are based on the prosecution evidence on record. Broadly speaking, the prosecution in this case had come out with the version that an incident took place at about 3:00 p. m. on 7. 2. 83, when the accused-appellant inflicted an injury by a `phawra' on the right shoulder of the complainant Anandi Lal. The case of the prosecution further is that having seen the incident, Amarchand intervened and the dispute was pacified. Subsequently, as per the case of the prosecution at about 3:50 p. m. , Smt. Kastoori Bai, mother of the complainant Anandi Lal had come to drink water in between the fields of Ranglal and Ramnath. According to the case of the complainant, accused-appellant gave beating to Smt. Kastoori Bai and the said incident was witnessed by Amarchand, Anandi Lal, Sri Kishan and Sita Ram Mali from a far distance. Though the prosecution in this case, as stated above, came out with detailed facts about the incident as well as the participants and the witnesses, it had become selective, in so far as producing the evidence to support its case before the trial Court. The incident had taken place between the field of Ranglal and Ramnath but Ranglal has not been produced by the prosecution, during the trial. Similarly, one Sri Kishan, who had witnesses the incident and he has been so named in the first information report itself, had not been brought before the trial Court. Other persons like Shivlal, Jagannath and the wife of the Kastoori Bai's son, who's presence had been stated by the prosecution witnesses themselves, had not been produced before the trial Court. The prosecution has preferred to bring in the witness-box only limited witnesses, who were personally interested against the accused-appellant. So far as Kastoori Bai and Anandi Lal are concerned, they are mother and the son. Cases are pending between the accused-appellant and Anandi Lal. The prosecution witness Amarchand is a member of the party of Anandi Lal. Likewise, Sitaram is also having enmity with the accused-appellant. Therefore, the prosecution have presented the case before the trial Court through the persons of their choice.
(3.) EVEN then the above mentioned prosecution witnesses are not trustworthy and reliable. So much so, that even the complainant Anandi Lal has changed his version before the trial Court. The learned trial Court in this respect held as under:- ...[VERNACULAR TEXT OMMITED]... The learned trial Court after having considered the evidence on record, came to the conclusion that the other witnesses were present at the time of incident but had erred in holding that their absence in the witness-box is not fatal because they were standing at a far place. The distance at which the witnesses were standing from the place of occurrence is not material, what is more crucial is, as to whether such witnesses were able to see the incident or not. Therefore the learned trial Court ought to have drawn an inference against the prosecution for not producing the witnesses which had seen the occurrence and they were specifically named by it, at the initial stage.;