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PETITIONER: DEVA

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       17/11/1998

BENCH: M.K.  MUKHERJEE, G.B.  PATTANAIK, S.P.  KURDUKAR.

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T C.B.Pattanaik, J. The  appellant  has been convicted under Section 302 I.P.C.  and sentenced to imprisonment for life  and  a  fine Rs.200/-,  in  default,  to further undergo imprisonment for four months by the learned Additional Session Judge,  Sirohi and  the said conviction and sentence has been upheld by the Division  Bench  of  Rajasthan  High  Court  at  Jodhpur  in Criminal Appeal No.    141  of  1979.  It was alleged by the prosecution that on 16.10.78 during the  morning  hours  the cattle of the deceased entered into the field of the accused Deva and  damaged  the  crop.  Accused, therefore, put those cattle in the cattle pond.  Deceased however agreed to  give six  Maund  of maize as compensation, after which the cattle were released.  The further case of prosecution is that Deva had gone out and on his return in  the  evening,  there  was some altercation  between  him  and  the  deceased.    PW 14 however intervened and got them separated.   In  the  night, while  accused was sitting at a hotel belonging to PW 7, the deceased came out of his house and seeing him coming out the accused left the hotel and inflicted injuries upon him by  a dagger (Chhuri)  on  the  stomach  of  the  deceased.    The deceased then went to his house and informed  his  wife  PW6 that  the accused has inflicted the injuries to him by means of a knife.  On this score,  there  was  an  uproar  in  the village  and  several  villagers  went  to  the house of the deceased and found injured Samti.  Natha PW2, then  went  to the Police  Station  and  lodged  a report.  On the basis of that report, Exhibit P3, when was  treated  as  F.I.R.,  the Police  started  investigation  and ultimately submitted the charge sheet.  On being committed, the accused was tried  by the learned Additional Session Judge. The prosecution examined 14 witnesses, including the Doctor PW 1 who had conducted the autopsy over the dead body of the deceased and the three eye witnesses PWs 4, 5 and  7. The  doctor  PW  1 found as many as seven incised wounds and the cause of the death according to him was shock due to the injuries,  more  particularly  injury  No.2  which  led   to internal haemorrhage.   On the basis of the medical evidence as well as the oral testimony of PWs 2  to  7,  the  learned

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Additional Sessions Judge came to hold that the death of the deceased was  homicidal  in nature.  The said conclusion was not assailed in appeal nor  has  been  assailed  before  us. From  the  medical  evidence  it  is  established  that  the injuries of the  deceased  were  caused  by  a  sharp  edged weapon.  The three eye witnesses viz.  PWs 4, 5 and 7 though stated that there was a struggle between the accused and the deceased did not state that the accused had a knife with him with which   he   assaulted   the  deceased.    The  learned Additional Sessions Judge however  came  to  the  conclusion that as the occurrence took place at a place where there was not  much  of  light and underneath a tree the eye witnesses might not have been able to see the knife which the  accused was having.    Relying  upon  the recovery of a knife at the instance of the accused, while in custody and the  statement of  PW  6,  the  wife of the deceased that deceased told her that Deva had inflicted the knife blow to him,  the  learned Additional  Sessions Judge came to the conclusion that it is the  accused  who  has  inflicted  the  knife  blow  at  the deceased.   On  the aforesaid finding the learned Additional Sessions Judge having convicted the appellant under  Section 302, the  appeal  was  carried  to the High Court.  The High Court confirmed the conviction and sentence  passed  by  the learned Additional Sessions Judge relying upon the testimony of  PWs 4, 5 and 7 who were supposed to be the eye witnesses to the occurrence and the evidence of PW 6 who  stated  that her  husband  Samti  told  her  that  the  accused  Deva had inflicted knife blows on him.  The conviction  and  sentence passed  by  the  High  Court  against the appellant is being assailed in this appeal. The  learned  counsel  for  the  appellant contended before us that none of the eye witnesses having stated  that accused inflicted injury to the deceased by means of a knife and  on the other hand they having categorically stated that when the accused and the deceased grappled and both of  them fell  down on the ground, it was the deceased who was having a stick in his hand, both the  learned  Additional  Sessions Judge  as  well as the High Court in appeal erroneously came to the conclusion that the injuries  on  the  deceased  were caused by the accused.  It may be stated here that PWs 5 and 7  were  declared  hostile  and  were  cross examined by the Public Prosecutor as they did not  support  the  prosecution case.   We  have  scrutinised  the  evidence  of these three witnesses and fail to appreciate that  on  the  evidence  of these  witnesses how the courts below came to the conclusion that the  injuries  on  the  deceased  were  caused  by  the accused-appellant.   PW 6, the wife of the deceased no doubt in her evidence stated that her husband told her  that  Deva had  inflicted  knife injury but in the cross examination it was elicited that her husband never told that  there  was  a grappling between him and Deva.  All the three eye witnesses having  categorically  stated that the accused-appellant had not given any knife blow on the deceased and  on  the  other hand,  having  stated that the accused and the deceased were grappling with  each  other  when  the  deceased  alone  was holding  stick  in  his  hand, it is difficult to accept the statement of the wife PW 6 that the deceased hand  told  her that Deva  had  inflicted  knife injury on him.  That apart, the nature of the injuries are such that  on  getting  those injuries,  blood  must  have  oozed and in that case the eye witnesses could have easily noticed the  same  but  in  fact none  of  them  have  noticed  any  such blood injury on the deceased.  In this  state  of  affairs  merely  because  the accused  is  alleged to have given recovery of a knife while in custody, it is difficult to  hold  that  prosecution  has

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been  able  to establish charges beyond reasonable doubt and it is the accused who is the perpetrator of the crime.    In our  considered  opinion,  the  conclusion  of  the  learned Additional Sessions Judge as well as the of the  High  Court in  the  impugned judgment that accused-appellant caused the injury on  the  deceased  is  wholly  unsustainable.     We, therefore,  set  aside  the  conviction  and sentence passed against the appellant and acquit him of the charges levelled against him.  The appellant  be  set  at  liberty  forthwith unless he  is  required  in  any  other case.  The appeal is allowed.