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Judgment
The instant appeal is directed against the judgment dated 05/12/1989 passed by Additional Sessions Judge, Rajsamand in Sessions Case No.5/1989 by which the accused-appellant has been convicted under Section 302 of IPC with life imprisonment and a fine of Rs.100/-, in default whereof, to further undergo three months' simple imprisonment.
The contents of F.I.R. (Ex.P/9 & Ex.P/10) discloses as under:-
"VERNACULAR MATTER OMITTED"
Besides appellant-accused Naina Ram son of Poonaji, trial was conducted against four another accused persons, namely Babulal, Dev Kishan, Deepchand and Harji in Sessions Case No.2/86, which was adjudicated on 12/01/1988 for the offence under Sections 302 / 34 coupled with Section 120-B of IPC by the Court of Additional Sessions Judge, Rajsamand and all those four accused persons were acquitted by that Court, and present appellant Naina Ram was arrested on 12/12/1988, so, his trial was conducted by impugned judgment vide Sessions Trial No.5/1989, which was culminated by the judgment impugned.
Heard submissions of rival sides, learned counsel for the appellant-accused has contended that the trial court has fallen in error, while convicting and sentencing the appellant-accused, there is no direct evidence as to who was the alleged assailant. All the prominent witnesses of the prosecution have not supported story of the prosecution, which goes to reveal that the witnesses were not ocular, even the injured PW.3 Shyamlal has been declared hostile, likewise, PW-2 and PW 5 have also become hostile and they have not corroborated story of the prosecution.
Vital contradictions are there in the testimonies of all the witnesses and nobody has seen alleged stabbing, so far as, cross-examination of Dhanna, PW-6 is concerned, it too has shrouded the entire story with respect to alleged involvement of the appellant-accused, since he has said that he did not witness any occurrence , despite the learned trial court has penned down an erroneous finding, which is not sustainable, in the eye of law, since nothing has been established as to who stabbed and which of the accused acted in conspiracy, even motive of the offence has not been clearly chalked out, it has also been contended that the story of the prosecution is highly doubtful and rest of four accused against whom separate trial No.2/86 was conducted were acquitted by the trial Court on 12/01/1988 and creditworthiness of all the testimony has already been disbelieved by a competent Court, so there is no substance in their evidence in this case as well, hence, the impugned judgment is not at all sustainable, so it be quashed after allowing the appeal.
On the contrary, learned Public Prosecutor has contended that the testimony of injured witness is trustworthy, he was assaulted by Naina and too has also distinctly said that soon after his deceased father was stabbed he was also stabbed by the assailant Naina, a pre-plan attack was committed and the deceased was falsely allured to go in isolation, where he was brutally assaulted and was killed, while his son tried to save his father, he too was stabbed, so there is explicit ocular evidence, which is supported by medical evidence and there is no flaw in the impugned findings, which is worthy to be sustained, appeal lacks merit, so, it be dismissed.
Perused the record and examined the evidence thoroughly, which reveals that prosecution has produced only six witnesses, even Doctor conducting postmortem and examining the injured, as well as, the investigating officer has not been produced in the trial and witnesses have not named, the appellant, in the alleged crime, four of the accused persons particularly Babulal son of Deepchand, Dev Kishan son of Deepchand, Deepchand son of Varda and Harji son of Gulab were acquitted in Session trial No.2/86 decided on 12/01/1988 regarding the same incident.
Prosecution has produced six witnesses out of which Smt. Rukmani wife of deceased Bholiram has become hostile and has categorically said that she was not present, when the incident occurred and reached at the place of occurrence later, and has said that "she does not know as to who killed Bholiram and she has also said that who inflicted injury upon Shyamlal is also not known to her", in her cross-examination, she has also said that she did not see anybody inflicting stabbing upon Shyamlal or upon her husband, she has even said that accused was not seen by her, inflicting injuries upon her husband, likewise PW.2 Kishna has also turned hostile and has said that "Bholiram arose and went towards his home, who killed him there, is not known to him", in his cross-examination, he has said that he does not know accused Naina, he has even declined recitals of his earlier statements Ex.P.3 as well as police statements Ex.P.4.
PW.3 Shyam Lal is none-else but is an injured person and son of the deceased as well, he too has been declared hostile and has even said that many people were there, he was not there and his father was there, he has also said that Babudiya and Dev Kishan fought with each other, which resulted death of his father, he has further said that "Babudiya had stabbed his father" and has said that he does not know accused person, present in the Court, in his cross-examination, he has said that Dev Kishan had stabbed him at his neck and has specifically said that "it is not correct that he and his father were stabbed by Nainia", he has uttered that "the statements earlier made by him in the Court were false" and has asserted certain parts of Ex.P.5 being false and has also denied certain recitals of police statements Ex.P.6 and has even said that it is wrong that "his father was stabbed by Naina Ram" and has further said that Naina Ram does not reside in the neighbourhood of his village.
Upon examining the aforediscussed evidence, it is candid that injured Shyamlal has become hostile and has specifically denied involvement of accused Naina Ram and has even gone to this extend that "he has admitted that he had given false statements before the Court in earlier trial", he has said that he was stabbed by Dev Kishan, whereas Ex.P.9 F.I.R discloses, involvement of Naina Ram in causing alleged injury. PW.1 Rukmani has also said that she does not know as who inflicted stab injury upon Bholiram and statements of both these witnesses has collapsed story of the prosecution and makes entire version of the F.I.R untrue.
PW.4 Kishanlal is a witness of Ex.P.7 Panchayatnama of dead body and PW.5 Champa another wife of deceased has also turned "hostile", she has said that name of her husband was Bholiram and Pratap as well, who died four years ago, she has further said that Nania, Babuda etc. three persons killed him, she has further said that Babuda, Kishan and Nana took her husband away and stabbed him, she has made significant say by saying "she does not know Naniya nor witnessed anybody causing stabbing" in her cross-examination, she has said that she knows Kishna and Babuda, but does not know Naniya, she has further said that her husband was having two wives, she used to stay in her parental house and another wife was staying with him, she has also denied certain recitals of her earlier statements Ex.P.8, she has also said that her husband brought another wife, so he was not keeping her alongwith and has even said that he never seen accused Nana and even does not identify him today as such testimony of this witness is also devoid of any merit.
PW.6 Dhanna is a last witness of prosecution in this case, who is brother of deceased Bholiram, he has said that deceased Bholiram was his brother, four years ago, they were witnessing Gavvri in the Village, Babu of Gangapur came and asked Bholiram to come along for some assignment and took him away, Bholiram went there, Krishna Bheel, his Bhabhi Rukmani, Champa and Shyama also accompanied him, they went towards place of "Chanvar Maata", five to seven minutes later, Bholiram was stabbed and he came at the corner and said that Nanaram stabbed him, he has said that "Chanvar Maata" was 30-35 hand-span away from the place where they were sitting, he has also made a significant statement that "the place was slant and was not visible from there" he has further said that he went to Bholiram at the corner, blood was oozing out from his chest and has narrated that Bholiram said him that Nana had stabbed him, who is present in the Court and he identify him, who used to visit to his Village, he has further said that his brother had also informed that his brother and Shyamlal were injured by Babu, he went to hospital to call doctor, who said that bring him here, meanwhile people brought him there, who was carried inside the hospital and he died, later he went to the police station and lodged Ex.P.9, which contains his signatures.
Perusal of Ex.P.9 goes to disclose that nothing of that nature that author of the F.I.R was informed by his deceased brother that Naniya had stabbed him but Ex.P.9 discloses "that Shyamlal son of Bholiram had conveyed him that the accused persons had taken his brother Bholiram under some pretension towards the temple of Mataji and attacked there with dagger" and this aspect is essentially vital, which goes to indicate that either the version of the F.I.R. Ex.P.9 or the statement of this witness are untrue, which makes the story of the prosecution dubious and non-creditworthy, in his cross-examination, this witness has dislodged and denied certain versions of Ex.P.9 F.I.R and has even said that in Ex.P.9 F.I.R, he did not name four persons, which might have written by thanedar saheb.
If, we scan testimony of injured Shyamlal, who was also injured in the same incident, he has said that he was stabbed by Dev Kishan and Babudiya had stabbed his father and he has even said it is wrong that Nainaram stabbed his father or to him, as such, testimony of both these witnesses goes contrary to each other, which makes the prosecution version highly doubtful.
Prosecution has not produced Doctor, as well as, investigating officer in the trial and so far as testimony of both the wives of the deceased and even son Shyamlal, who was also injured in the incident, does not name accused-appellant Naina Ram having involved in the incident, both the wives have denied their presence or witnessing anything, PW.2 Kishanlal has also said that he does not know as to who killed Bholiram. Shyamlal has even said that instead of Naniya, Devksihan had stabbed him and Babulal had stabbed his father, it is worthy to mention here that Babulal and Dev Kishan with rest of two accused Deepchand and Harji have already been acquitted in Sessions No.2/86 decided on 12/01/1988, after appreciation of the evidence, there is no appeal before us pertaining to said judgment dated
12/01/1988.
Totality of the evidence as dealt and discussed hereinbefore does not connect the accused-appellant with the alleged crime, because whole of the evidence of the prosecution is doubtful, contradictory and untrustworthy. Eye witnesses and injured have also turned hostile, though Dhanna PW.6 has introduced a version that his deceased brother, while under pangs of injury informed him that Naniya had caused stab injuries to him, but he has said that he did not witness scuffle and Ex.P.9 F.I.R, which has also been lodged by Dhanna, brother of the deceased discloses another story that entire assault story was conveyed him by Shyamlal son of Bholiram, as such, prosecution has miserably failed to adduce anything positive against the accused-appellant.
It is a well settled doctrine of criminal jurisprudence that if there appears two versions then version favourable to the culprit be preferred, likewise in case of doubt "benefit of doubt" is to be extended to the accused person". In catena of judgments Hon'ble Apex Court has observed and laid down law accordingly.
In Kali Ram Vs. State of Himachal Pradesh,
(1973) 2 SCC 808; State of Rajasthan Vs. Raja Ram, (2003)
8 SCC 180; Chandrappa & Ors. vs. State of Karnataka,
(2007) 4 SCC 415; Upendra Pradhan Vs. State of Orissa,
(2015) 11 SCC 124 and in Golbar Hussain & Ors. Vs. State of Assam & Anr., (2015) 11 SCC 242, Hon'ble Supreme Court has observed that
"it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted"
In Jiten Besra v. State of West Bengal, (2010) 2 S.C.C. (Cr.) 438 and in Kamla Devi vs. State of Delhi, 2012
(2) J.C.C. 1457 (Delhi) the Hon'ble Supreme Court has observed that once it is found that circumstance could not point out towards guilt of accused, without any other inference being probable, the accused must get the benefit of doubt and in Baijnath & Ors. vs. State of Madhya Pradesh, 2017 1 SCC 101, Hon'ble the Supreme Court has held that in the cases of deficiencies of proof, benefit would be available to the person charged and in Narendra Singh & Another v. State of M.P .,
(2004) 10 SCC 699, the Hon'ble Apex Court has also held that in event of there being two possible views, one supporting the accused should be upheld and Hon'ble the Supreme Court has recognized presumption of innocence as a human right.
In view of the foregoing reasons, we allow this appeal thereby setting aside the impugned judgment and acquit the accused-appellant of the charge levelled under Section 302 of IPC.
The appellant-accused is on bail, so he need not to surrender, his bail bonds stand discharged.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish a personal bond in the sum of Rs.50,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
Record of the lower Court be sent back promptly with a copy of the judgment.