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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: RAJENDRA SINGH

DATE OF JUDGMENT:       22/07/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Nanavati, J.      The   State has  filed these  appeals as the respondent was not  convicted by  the High  Court under Section 302 IPC and has  been acquitted  after setting  aside his conviction under Section 304 part I and Section 323 Ipc by the Sessions Court, Bharatpur.      Briefly stated,  the allegation  against the respondent was that  on 5.7. 79 at about 6 A.M. he had caused the death of Harveer,  his nephew, by firing two shots at him and also by giving  stick blows.  According to  the prosecution  this incident was witnessed by P.W. 1 Govind Singh, P.W. 2 Vimla, P.W. 3  Kastoori, P.W.  4 Bhan  Kaur, P.W.  5 Teji,  P.W.  8 Ramjilal and P.W. 9 Jeevan Singh. The defence of the accused was that  he was attacked and injured by Harveer and others, that he  had no gun with him and that whatever injuries were found on the persons of the other side were inflicted by his wife in  order to  save him.  The trial  court believed  the prosecution evidence  and  convicted  the  respondent  under Section 304  Part I.  The  trial  court,  however,  did  not believe the  evidence of  the prosecution  witnesses against the co-accused Ghamandi and acquitted him.      Aggrieved by  his conviction,  the respondent  filed an appeal before  the High  Court. The  State had also filed an appeal against the acquittal of the respondent under Section 302 IPC.      The High  Court after  reappreciating the  evidence and considering the  reasons given  by the trial court held that the trial  court was  wrong in  holding that the prosecution had established  its  case  against  the  respondent  beyond reasonable doubt. The High Court mainly gave two reasons for taking this  view. it  held that  the medical  evidence  was inconsistant with the evidence of the eye witnesses. The eye witnesses had  stated  that  the  two  shots  fired  by  the respondent had  caused injuries to harveer. But not a single injury on  Harveer was  found to  have been  caused by a gun shot. After  appreciating the evidence of the doctor who had first examined  harveer, and  also of  the  doctor  who  had performed the  post mortem  and the  Radiologist,  the  High Court held  that the  injuries found  on  Harveer  were  not

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caused by  a gun  shot. The  High Court  disbelieved the eye witnesses as  it was their positive case that both the shots fired by  the respondent  had injured Harveer and because of those injuries he had fallen down.      The  second   reason  given   by  the  High  Court  for disbelieving the eye witnesses is that all failed to explain the injuries  on the  respondent. They  had denied  that any injury was  caused to  the respondent.  The respondent  soon after  the   incident  ad  left  the  village  and  gone  to Bharatpur. There  he had got himself examined by a Doctor at about 6.00  P.M. The  Doctor noticed  five injuries  on  his person; two  of them were contused lacerated wounds. One was on his  head and  the other was on his face. The Doctor also opined that  the injuries  were 12  to  18  hours  old.  The respondent in  his statement  under Section 313 Cr. P.C. had stated that  he  had  received  those  injuries  during  the morning incident  which had  taken  place  between  him  and Harveer. The  High Court, therefore, held that the fact that the accused  had received injuries in this very incident was thus established.      For the  said two  reasons the High Court held that the eye witnesses  had not  told the truth and had supressed the true manner  in which  the incident  had happened.  The High Court, therefore,  did not  think it  fit to rely upon their evidence and  in absence of any other evidence acquitted the respondent.      It was  submitted by  the learned counsel for the State that as  many as  six witnesses  were found injured and that would establish their presence at the place of the incident. In our  opinion  this  contention  is  of  no  help  to  the appellant because  their evidence  has not been discarded on the ground  that they  were not  present. Their evidence was discarded because  they   were found  not telling  the truth before the  court. It  was also  submitted  by  the  learned counsel that  the evidence  of PWs 1 to 4 stood corroborated by two  independent witnesses,  namely Ramjilal  and  Jeevan Singh. P.W.8  Ramjilal had  stated that  he had  gone to the spot on hearing sound of a gun shot and tried to snatch away the gun  from the respondent. But he was contradicted by his police  Statement   wherein  he   had  not  stated  anything regarding snatching  of the  gun. this  omission on  such  a vital point  has to  be regarded  as a  contradiction and it creates a  serious doubt  about   the  truthfulness  of  his version. P.W.  9 Jeevan  Singh had  stated that  he had also rushed to  the spot  on hearing  the sound of a gun shot. He further stated  that he  had made an attempt to save Harveer and in  doing so  he had  received an  injury. He had not so stated before  the police. This also shows that this witness had made a material improvement before the Court in order to make his evidence acceptable.      All the  witnesses had  categorically stated  that they had not  beaten the  respondent and  seen any  injury on the accused. But  the evidence  establishes that  the respondent had two  contused lacerated  wounds; on  his face and one on his head.  The injuries  were bleeding  injuries and visible and yet  the witnesses  stated that  they had  not seen  any injury on the person of the respondent. That would mean that neither  the   family  members   of  Harveer   nor  the  two independent witnesses  were willing  to give  a true version and had  tried to  suppress the  part played by some of them which had  resulted in  causing injuries  to the respondent. The High  Court was,  therefore, justified  in  not  placing reliance on their evidence.      Both these  appeals are, therefore, dismissed. The bail bond of the respondent is ordered to be cancelled.

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