1. This appeal has been filed by the State, after obtaining leave to appeal under Section 378(3) Cr.PC, against the judgment dated January 28,1974 passed by the Sessions Judge, Pali, in Sessions Case No. 11 of 1973. In the Sessions case aforesaid, 25 persons including the respondents Basti Ram, Ram Chandra, Bhanwarlal, Panji and Mohan, were prosecuted. All the respondents were charged with offences under Sections 147, 447, 315/ 149, 324/149 323/149 IPC and accused Basti Ram, Ram Chandra and Bhanwar Lal were charged with offences under Section 302 IPC and accused Panji and Mohan were charged with the offence under Section 302/149 IPC. The Sessions Judge, by his judgment aforesaid, acquitted all the accused persons and thereupon the State filed a petition for leave to appeal. Leave to appeal was granted as against the respondents but was refused as against the other accused.
2. The case of the prosecution is that in village Sojat there is well known as Bera Kundaliya'. The water of the said well was used for irrigating the lands of seven brothers viz, Dhanji, Khushal (PW 41)Poona Ram (PW 22) Kesha Ram (PW 17), Bachna Ram (PW 9) Chunilal (PW 8) and Deepa deceased. There was some dispute between Dhanji on the one hand and Deepa deceased on the other with regard to the irrigation from the said well. On 17th Oct, 1972 at about 10 PM when Deepa was irrigating his fields with the water from the aforesaid well the accused persons, 40 to 50 in number, came in a truck which made two trips. They were armed with Lathies Dhariyas and swords and they started attacking deceased Deepa Ram and caused serious injuries on his person. The accused persons also inflicted injuries on hushal (PW 41), Sona Ram (PW 25), Budha Ram (PW 34), Ghewar Ram (PW 23), Bachna Ram (PW 9), Chunilal (PW 8) Mst. Narayani (PW 1) and Mst. Meera (PW 10), and after assaulting the said persons they returned in the truck. An oral report about the incident was lodged by Chunilal (PW 8) at Police Station Sojat City on October 17, 1972, at 10.30 PM. On the basis of the said report, the FIR (Ex. P. 13) was drawn out at the Police station and a case Under Sections 147, 143, 149, 354, 447, 307, 323 IPC was registered by Saligram (PW 30) who proceeded to the scene of occurrence and conducted spot investigation Deepa died on 18th Oct, 1972. at about 3 PM in the Hospital at Sojat and an autopsy on his dead body was conducted by Dr. D.R Bhandari (PW 43) vide post mortem report (Ex P. 19). The injuries of the other persons who were injured viz Bachna Ram, Kushal Sona Ram, Budha Ram, Ghewar Ram, Chunilal, Smt. Narayani and Smt Meera were also examined by Dr. Bhandari After completing the investigation, the Police filed a charge-sheet against 25 accused persons, including the five respondents and the Munsif Magistrate Sojat committed them for trial to Court of Sessions and thereupon the Sessions Judge, Pali, read over the charges referred to above. The accused persons pleaded not guilty and claimed Jo be tried.
3. The prosecution, in support of its case, examined 43 witnesses out of whom Ramlal (PW 1), Chunilal (PW 8), Bachna Ram (PW 9). Smt.Meera (PW 10), Smt. Narayani (PW 11), Ghewar (PW 32), Sona (PW 25) Budha Ram (PW 4) and Kushal (PW 41) were examined as eye witnesses of the occurrence. Out of these witneses, however, only Chunilal (PW 8) and Smt Meera (PW 10) supported the case of the prosecution and the other witnesses examined by the prosecution did not support the case of prosecution and they were declared hostile and were allowed to be crossexamined. The accused persons denied the prosecution case and also examined seven witnesses in support of their case.
4. The Sessions Judge found that out of these witnesses eye witnesses examined by the prosecution all except Chuni Lal (PW 8) and Smt. Meera (PW 10) have been declared hostile and that in so far as Smt. Meera (PW 10) as concerned, she has stated that on account of darkness she was unable to say as to who had participated in the occurrence, and, therefore, the participation of the accused persons in the occurrence is not established from her evidence. With regard to the testimony of Chunilal (PW 8) the Sessions Judge held that in the Committal Court he had not supported the prosecution case and he had been declared hostile. The Sessions Judge also found that Chunilal has stated that he was unable to say as to who had assaulted Deepa deceased, in as much as Deepa had been assaulted before he reached the scene of occurrence and that in view of his statement (Ex D. 1) recorded before the Committal Court, it could not be said that he was in a position to identify the assailants. The Sessions Judge, therefore, held that reliance could not be placed on the testimony of Chunilal (PW 8) The Sessions Judge also held that it had not been established from the evidence on the record that the accused persons had arrived at the scene of occunence in a truck. As regards weapons (Lathies) said to have been recovered at the instance of the accused persons, the Sessions Judge held that, the prosecution had not adduced any evidence that the Lathies were actually used during the course of the occurrence and no blood was found on the same. In view of the findings aforesaid, the Sessions Judge held that the prosecution has failed to establish the case against the, accused persons beyond reasonable doubt and, therefore, Sessions Judge acquitted all the accused persons. Hence this appeal.
5. We heard Shri Niyajuddin Khan, the learned Public Prosecutor for the State in support of the appeal and Shri Prema Ram Choudhary, the learned Counsel for the accused respondents.
6. The learned Public Prosecutor has taken us through the evideuce of the eye-witnesses that have been examined by the prosecution in support of its case. From a perusal of the evidence of the eye-witnesses we find that Ram Lal (PW 1), Bachna (PW 9) Smt. Narayani (PW 11), Ghewar (PW 33). Sona Ram (PW 25), Budha Ram (PW 34), Khushal (PW 41) have not supported the prosecution case in so far as the participation of the accused persons is concerned. We are, therefore, left only with the testimony of Chunilal (PW 8) and Smt. Meera (PW 9) Smt. Meera during the course of cross examination has stated that she could not identify the persons who assaulted her and when she came from the house (Parwa) 2 -25 persons were assaulting Smt. Narayani with Lathies and she was not able to identify them. She has also stated that it was dark and because of old age her eye-sight was poor. She has further stated that she did rot see Deepa being assaulted and that she could not say as to who was the person who had assaulted and what was the weapon with which he was assaulted. In view of the aforesaid statement made by Smt. Meera during the course of cross-examination the testimony of Smt. Meera does not lend any assistance to the prosecution case. We are, therefore, left only with the testimony of Chunilal (PW 8) who lodged the FIR (Ex. P 4 ). As noticed earliar, during the course of his examination before the Committal Court he did not support the prosecution case. In his statement (Ex D. 1) before the committal court Chunilal has stated that although in the report lodged by him he has stated that he identified the accused persons and has given their names but the truth was that he had not identified them. In the said statement he also stated that the statement made by him before the police that he had identified the accused persons is not correct and that he had so stated in view of previous dispute. During the course of cross-examination before the committal Court he denied the correctness of the statement made by him during the examination-in-chief that he had identified the accused persons. During the course of his deposition before the trial Court be was confronted with the aforesaid portions of his statement (Ex D. 1) recorded before the committal Court and be has admitted to have stated so before the committal court but he said that the aforesaid statement made by him before the committal Court was not correct. Taking into consideration the contradictory statements made by Chunilal (PW 8) during the course of cross-examination before the eommittal court and during the course of his deposition before the Sessions Judge, we are of the opinoin that the Sessions Judge was justified in not placing relance on the testimony of Chunilal (P.W.8). It may also be observed that Chunilal (PW 8) in his deposition before the trial Court has also stated that Deepa had been assaulted before he reached the scene of the occurrence and that he was unable to say as to who had assaulted Deepa.
7. Having considered the evidence that has been adduced by the prosecution in support of its case, we find that the prosecution has failed to establish beyond reasonable doubt the participation of the accused respondents in the occurrence and the findings recorded by the Sessions Judge in this regard cannot be held to be un-reasonable or perverse and no ground is made out for interference with the acquittal of the accused respondents.
8. The appeal, therefore, fails and it is accordingly dismissed.