JUDGMENT
B.R. Arora, J.
1. This appeal is directed against the judgment dated June 30, 1976, passed by the learned Sessions Judge, Pali, by which the learned Sessions Judge, Pali, acquitted the accused- respondents.
2. Accused respondent Ram Singh was tried by the learned Sessions Judge for the offence under Section 307 IPC while the accused-respondent Sawai Singh was tried for the offences punishable under Sections 307/34, 325 and 323 IPC.
3. The prosecution, in support of its case, examined ten witnesses and the accused-respondents, in support of their defence, examined DW 1 Sher Singh. The case of the prosecution rests merely on the evidence of three eye witnesses, namely, PW 2 Pukhiya, PW 3 Jabbar Singh and PW 4 Khiv Singh [injured), which is sought to be corroborated by the evidence of PW 1 Dr. N.S. Sankhla, who examined the injured Khiv Singh. PW 5 is Sher Singh, who is brother of the injured Khiv Singh and lodged the First Information Report Ex.P.7. PW 6 Galiya, PW 7 Chhoga Ram and PW 8 Sohan Singh are the persons, whose evidence is produced by the prosecution to corroborate the prosecution case. After receiving the information that Khiv Singh is lying injured and was in unconscious condition in the field, they went to the field and brought him to the village and thereafter took him to the hospital. PW 9 is Surya Narain, Station House Officer. Police Station, Guda, who conducted the investigation and handed-over the same to PW 10 Suraj Prakash.
4. The prosecution case rests mainly on the evidence of three eye witnesses. PW 2 Pukhiya has stated that at about eight to ten months before, accused persons gave beating to Khiv Singh in the mid night near the water-pond of village Aagore by axe and Lathi. Accused Ram Singh was armed with an axe while the accused Sawai Singh was armed with Lathi. The beating was given by the accused-persons at about mid-night to Khiv Singh. Khiv Singh was lying mouth-downwards and both the accused were giving beatings to him and he could identify the accused in the lightening. PW 3 Jabbar Singh, also, came there and both of them raised alarm, upon which the accused ran away. Thereafter they went near Khiv Singh and enquired from him who had given beatings to him, upon which the injured Khiv Singh informed them that accused Ram Singh and Sawai Singh had given beatings to him. Thereafter this witness went to the village and informed Heer Singh about the incident. In the cross-examination, he was admitted that he was in the field all-alone and it was raining at that time and the time of the incident was approximately 2.00 to 3.00 a.m. in the night. He has, also, admitted that it was a dark night and the place where the incident took place, is at about a distance of two fields (i.e., about 3300 feet). He has, also, admitted that in those days, he was doing the labour work by plying’a handy-cart at Jodhpur, and his family, also, used to reside at Jodhpur, but at the time of the incident, he was doing the agricultural work. He went there after hearing the sound of inflicting the injuries by Lathis and he took five to ten minutes in reaching there. When ‘he was at a distance of about ten paces from Khiv Singh, the accused ran away and he did not follow them. It was a dark night and this witness stated that he could identify the accused persons in the lightening, which, to us, appears to be not possible. Moreover, it was raining and it was not expected that during rains, unless there is some urgent work, the agriculturist will not go in the field. This witness was not having any agricultural field and used to run a cart in Jodhpur, and, therefore, the presence of this witness at the scene of the occurrence is, also, not probable. Moreover, he could not have identified the accused in the lightening, which flashes for a moment or two. It is, also, not possible to believe that when this witness, according to him, had already seen the accused giving beatings to Khiv Singh then he would have again made an enquiry from the injured that who had given beatings to him. This, also, raises a suspicion in the truthfulness of this witness. To us, the presence of this witness at the place of the occurrence is not probable.
5. Similar is the case of PW 3 Jabbar Singh. He has stated that after about the mid-night, he was coming from his field and when he reached near the water-pond, he heard the noise “Maare Re Marre Re” and saw accused Ram Singh and Sawai Singh armed with Kulhari and lathi, respectively, and who were giving beatings to Khiv Singh and were saying,” they will kill Khiv Singh.” Khiv Singh’s face was down-ward and he saw the accused in the lightening. PW 2 Pukhiya was, also, present there. On raising alarm by them, the accused ran away. They enquired from Khiv Singh that who had inflicted injuries to him, upon which he informed them that Ram Singh and Sawai Singh had inflicted injuries upon him. Thereafter Pukhiya went to the village and brought Heer Singh and with the help of the villagers, Khiv Singh was taken to village and thereafter he was taken to Pali Hospital and they went to the Police Station. In the cross-examination, he has stated that he heard the noise “Maare Re Marre Re” from a distance of 20 to 25 paundas. He was, also, armed with a stick and when he reached at the place of the occurrence, Pukhiya was, also, there. On raising alarm by them, the accused ran away. They did not try to catch-hold of the accused. He has admitted that Khiv Singh is his first cousin. The evidence of this witnesss, also, does not inspire confidence because in the night when it was raining, the presence of this witness at the scene of the occurrence is not possible, though he has tried to explain his presence by saying that he was coming form his field and on the way he saw the accused-persons giving beatings to Khiv Singh, but the evidence of this witness on this point does not inspire confidence. Moreover, it was not possible for this witness to identify the accused in the light of the lightening, which remains only for a seconds. Moreover, it is, also, not possible that this witness who, according to his statement, had already seen the accused giving beatings to Khiv Singh, would have made an enquiry from the injured that who had given beating to him. This, also, rises a suspicion in the truthful to him. This, also, raises a suspicion in the truthfulness of the statement of this witness. A close scrutiny of the evidence of this witness clearly shows that this witness is not a reliable witness and has rightly been disbelieved by the learned lower Court.
6. Then remains the evidence of PW 4 Khiv Singh-the injured eye witness. He has stated that at about 12.00 in the mid-night, he was going to his field to bring his bullock from the field. When he reached near the water-pond from the village side, accused Ram Singh and Sawai Singh came there. Ram Singh was armed with an axe while accused Sawai Singh was armed with Lathi. Accused Ram Singh inflicted injury by the axe on the head and on receiving that injury, he fell down on the ground with the mouth downwards. Accused Ram Singh thereafter inflicted two-three injuries on his head by the axe. Thereafter accused Sawai Singh inflicted injuries on his back. Thereafter Pukhiya and Jabbar Singh came there and they enquired from him who had inflicted injuries to him and he informed them that accused Ram Singh and Sawai Singh inflicted injuries to him, They were, also, saying that they will kill him. When Pukhiya and Jabbar Singh came, both the accused ran away. It was a dark night and he could identify the accused in the lightening and by their voice. Thereafter Pukhiya went to the village, called Heer Singh and other villagers and took him to the pond and thereafter he was taken to the Police Station and then to Pali Hospital. He has, further, stated that the accused inflicted injuries upon him due to party faction. In the cross-examination, he has admitted that it was at about 2.00 to 3.00 a.m. in the night and nobody met him in the way. He came to know regarding the presence of the accused only when he received the injuries and after receiving the first blow, he fell down. He has, also, admitted that immediately after he fell down, two injuries were inflicted by the accused on his head and back. When this witness (injured) fell down on the ground with mouth down-wards and immediately thereafter two more injuries were inflicted on his head and back, it was not possible for him to have seen the accused. Though he has stated that as soon as he fell down he saw the accused by turning his face, but this statement of the injuries on his head and the statement of this witness. Therefore, it was not possible for the injured to have turned his face when immediately after falling on the ground, the injured received two injuries on the back side of his head. Moreover, it was a dark night and it was not possible for him to have identified the accused in the dark night in the lightening. There is, also, another circumstance of the case. PW 5 Heer Singh and PW 7 Chhoga Ram, who reached at the scene of the occurrence after the incident and brought Khiv Singh to village, have specifically stated that when they reached there, Khiv Singh was unconscious and was not in a position/condition to speak, An enquiry was made from Khiv Singh that who had inflicted injuries to him, upon which he could not give any reply as he was unconscious. From the statements of these two witnesses, viz., PW 5 Heer Singh and PW 7 Chhoga Ram, it is, therefore, clear that after receiving the injuries, Khiv Singh was not in a position to depose anything to any witness and these two witnesses, namely, PW 2 Pukhiya and PW 3 Jabbar Singh, who have been produced as the eye witnesses to the occurrence, were not there and they have not seen the occurrence and, there fore, the FIR, which was lodged by Heer Singh was lodged on mere suspicion and the prosecution thereafter followed the story put-up in the FIR. This witness, to us, also, does not appear to be a reliable witness and the learned lower Court has rightly disbelieved the evidence of this witness. The learned lower Court has rightly appreciated the evidence, produced by the prosecution and the appreciation of the evidence, made by the learned lower Court, does not require any interference as it cannot be said that the appreciation of the evidence, made by the learned lower Court, is, in any way perverse or illegal.
7. In this view of the matter, we do not find any force in this appeal, filed by the State and the same is hereby dismissed.