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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.