IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR
O R D E R
Chhitar Lal son of Shri Madholal Nagar,
Resident of Village Gadarwada Dundi, PS Khanpur
District Jhalawar (Rajasthan)
Vs.
1.State of Rajasthan through its Public Prosecutor.
2.Chetan @ Chintiya son of Shrilal, b/c Nagar
3.Ramgopal son of Shri Ram Kishan, b/c Nagar (Dhakad)
Both Residents of Dundi Gadarwada, PS Khanpura
District Jhalawar (Rajasthan),
4.Chandra Prakash son of Shri Madholal by caste
Kirad.
5.Ramcharan son of Shri Jagannath, b/c Kirad,
6.Sheoram son of Shri Jagdish b/c Kirad
Both Residents of Village Dundi Gadarwada,
District Jhalawar (Rajasthan).
7.Raju son of Shri Mangilal Nayak,
by caste Nayak, Resident of Sojpura,
PS Khanpur District Jhalawar (Rajasthan)
8.Chetan son of Shri Bheemraj, b/c Rathor,
R/o Dundi Gadarwada, PS Khanpura
District Jhalawar (Rajasthan).
D.B. Criminal Revision Petition No.204/2008 under Section 397 Read with Section 401 Cr.P.C. against the Judgment dated 09/01/2008 passed by Special Judge, SC/ST (Prevention of Atrocities) Jhalawar in Sessions Case No.44/2007.
Date of Order 16th November, 2009 PRESENT HON'BLE MR. JUSTICE DALIP SINGH HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr.J.S.Chauhan for the petitioner. Mr.J.R.Bijarnia Public Prosecutor for the State. Heard learned counsel for the petitioner and the learned Public Prosecutor.
Brief facts of the case are that on 21.11.2006 Bhupendra Nagar lodged report Ex.P/42 and stated that his younger brother-Kamlesh went with his friend Vishnu Prasad on motorcycle on 19.11.2006 at 8.30 p.m. and onwards his brother is missing, extensive search was made and now a dead body was found in the well of Madholal at 8.30 p.m. and today in the morning his brother-Kamlesh’s body was identified in the well. He came to know that Raju, Chetan son of Bheemraj, Chetan @ Chintiya son of Shrilal, Ram Charan, Sheoram, Chandra Prakash were with his brother in the party. He is not aware how his brother fell in the well. On this report proceedings under Section 174 Cr.P.C. were conducted. On 8.1.2007 Chhitar Lal, father of deceased, lodged report Ex.P/39 and stated that on 19.11.2006 after taking meals his son Kamlesh went alongwith Vishnu Prasad on motorcycle at 8.30 p.m. He did not lodge the report in the night and on enquiry in the morning Vishnu Prasad revealed that he left Kamlesh near the well of Madholal. On enquiry accused-Ram Gopal disclosed that Kamlesh was in the party alongwith other accused-persons named in the report Ex.P/42. It was further stated that there were some injuries on the dead body and after recovering the dead body accused-persons absconded. It was further stated that Laxminarayan, uncle of accused Chetan @ Chintiya told him that Kamlesh made many attempts to jump in the well, but other persons restrained him. Kamlesh is a good swimmer and he could not have died on account of drowning and it appears that in the state of intoxication other members of party have caused death of Kamlesh and lateron have thrown body in the well. On this report, case under Section 302, 201 IPC was registered and after completion of investigation challan was filed against seven accused-persons and after trial all accused-persons were acquitted of the charges under Section 302, 302/120-B, 201 and 176 IPC.
Learned counsel for the complainant submitted that prosecution has proved case beyond reasonable doubt against the accused-persons even then the learned trial Court has committed error in acquitting the accused-persons, hence, leave to appeal may be granted.
Perusal of record reveals that report Ex.P/42 was lodged on 21.11.2006 on which proceedings under Section 174 Cr.P.C. were initiated and in that report only this fact was disclosed that deceased-Kamlesh went alongwith Vishnu Prasad and onwards he was found missing. This fact has also been mentioned that he came to know that other accused-persons were in the party with his brother, but source of information was not disclosed. Report Ex.P/39 has been lodged after 50 days and no reasonable explanation has been given for lodging report after 50 days.
As per report Ex.P/39 on enquiry accused-Ram Gopal disclosed to the complainant that deceased was with accused-persons in the party, but Ram Gopal has been implicated as accused and therefore, there is no iota of evidence to come to the conclusion that deceased was in the party of accused persons near the well of Madholal. The Investigating Officer has not collected any evidence to prove the fact that any party was organised near the well of Madholal. PW3-Vishnu Prasad with whom Kamlesh went has simply stated that he left Kamlesh at a distance of 400 ft. from the well of Madholal and at that time Kamlesh was under state of intoxication. In examination in chief he specifically stated that he is not aware about any party. PW4-Dhanraj has also admitted in his cross examination that deceased was a habitual drunkerd. No other witness has seen the deceased in the company of accused-persons. As per postmortem report there were only four abrasions on the body of deceased and as per statement of PW19-Dr.Indra Dutt, who conducted the postmortem, alcohal was found in the stomach of deceased. He has further admitted that on account of injuries found on the body of deceased, death could not have been caused. He has further admitted that if any person fells in the well these injuries can be caused and further stated that apparently death was caused on account of drowning and no specific cause of death has been given in postmortem report Ex.P/45.
In the light of above discussion, it appears that prosecution has failed to prove that on account of injuries inflicted by accused-persons on the body of Kamlesh in the party, he died. The probability that in the intoxicated state deceased fell in the well and died cannot be ruled out. The learned trial Court has not committed any error in acquitting the accused-persons of the charges levelled against them. Hence, the Criminal Revision Petition filed by the petitioner-complainant is dismissed.
(K.S.CHAUDHARI) J (DALIP SINGH) J teekam