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NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1779 OF 2019 [Arising out of SLP (Crl) No. 8410 of 2016]

Jodhraj  & Anr. .. Appellant(s)

Versus

State of Rajasthan .. Respondent(s)

WITH

CRIMINAL APPEAL NO.1780 OF 2019 [Arising out of SLP (Crl) No. 5350 of 2017]

J U D G M E N T

M. R. Shah, J.

Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 19.01.2016 passed by the High Court of

Judicature for Rajasthan, Jaipur Bench in DB Criminal Appeal No.

549 of 2012 by which the High Court has confirmed the conviction

of the appellants herein – original Accused Nos. 1 and 12 for the

offences punishable under Section 302 r/w Section 149 of the IPC,

the original Accused have preferred the present appeal.

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2. By the impugned Judgment and Order, the High Court has

acquitted the respondent herein Bhanwar Lal  ­  Original  Accused

No.  3.  Therefore, the State  has preferred an appeal  against  his

acquittal.

3. The case of the prosecution is that on 22.5.2005 in the night

at 9.30 P.M., in the revenue estate of village Kadiayavan, 14

persons namely Jodhraj s/o Mathura Lal, Hemraj s/o Birdhi Lal,

Bhanwar Lal s/o Mathura Lal, Mathura Lal s/o Baldev, Dwarka Lal

s/o Ram Narayan, Dev Kishan s/o Ram Narayan, Prakash @ Om

Prakash s/o Birdhi Lal, Naval @ Naval Kishore s/o Birdhi Lal, Badri

Lal s/o Kanwar  Lal,  Ram Prasad s/o Narayan @ Ram Narayan,

Prabhu Lal s/o Bridhi Lal, Jagdish Prasad s/o Mathura Lal, Ram

Dayal s/o Ram Narayan and Pooran Mal s/o Ram Narayan,

constituted unlawful assembly and caused injuries to Hariram, as a

result of which, on the intervening night of 22nd May and 23rd May

of 2005, Hariram died.  

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3.1 That all the accused came to be tried by the Learned Trial

Court for the offences punishable under Sections 147, 148,

323/149, 324/149, 326/149, 3/2 r/w 149 and 379 of the IPC.   

3.2 To prove the case, the prosecution examined in all 18

witnesses  including PW2 Om Prakash and PW3 Ram Dayal  – so

called eye­witnesses.   The prosecution also brought on record the

documentary evidence such as  injury report relating to deceased

Hari Ram.   In the Injury Report, the following injuries were found

on the deceased Hari Ram:

“(i) abrasion 1 cm X 1 cm, right side of forehead, simple, blunt. (ii) Incised wound, 7 cm X 1cm, muscle deep, right side of neck, obliquely, simple, sharp. (iii) Incised wound, 20cm X 7 cm, intestine coming out, anterior on abdomen, longitudinal, grievous and dangerous to life, sharp.”

3.3 Upon appreciation of evidence, the Learned Trial Court

convicted five accused – Jodhraj, Bhanwar Lal, Dwarka Lal, Jagdish

Prasad, Pooran Mal for the offences under Sections 148, 302/149

and  379 IPC  and  acquitted rest of the accused  by giving them

benefit of doubt.   The Learned Trial Court imposed punishment for

life so far as the convicted accused are concerned.

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3.4 Feeling aggrieved and dissatisfied with the Judgment and

Order  dated  11.05.2012 passed  by the  Learned  Trial  Court, the

convicted accused preferred appeal before the High Court.  Against

the order of acquittal of some of the accused, the State also

preferred an appeal before the High Court.   By the impugned

Judgment and Order, the High Court has acquitted Original

Accused No. 3 – Bhanwar Lal by giving him benefit of doubt, not

believing the deposition of very PW2 and PW3.   However, at the

same time, relying upon the deposition of PW2 and PW3, the High

Court has confirmed the conviction of the appellants herein –

Jodhraj and Jagdish Prasad – original Accused Nos. 1 and 12.

3.5 Being aggrieved and dissatisfied with the impugned Judgment

and Order passed by the High Court confirming their conviction,

original Accused Nos. 1 and 12 – Jodhraj and Jagdish Prasad have

preferred the present Appeal.  Against the order of acquittal passed

by the High Court acquitting the accused Bhanwar Lal, the State

has also preferred the appeal.  Both the appeals are heard together.

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4. Learned Counsel appearing on behalf of the appellants –

convicts Jodhraj and  Jagdish  Prasad  has vehemently submitted

that in the facts and circumstances of the case, the High Court has

materially erred in confirming the conviction of the appellants.

4.1 It is vehemently submitted by the Learned Counsel appearing

for the appellants­convicts that the High Court has confirmed the

conviction of the appellants solely relying upon the deposition of

PW2 and PW3.  It is submitted that the statements of PW2 and PW3

under Section 161 of the Cr.P.C. were recorded after 18 days.  The

statements made by PW2 and PW3 were  in exaggeration.   It is

submitted that the grounds on which Bhanwar Lal and others came

to be acquitted, namely, not believing the deposition of PW2 and

PW3, the  same shall  be  applicable to the  appellants  also.   It is

submitted that therefore no reliance can be placed upon the

deposition of PW2 and PW3 so far as the appellants/accused are

concerned.   It is submitted that except the deposition of PW2 and

PW3, the High Court has not relied upon and/or considered any

other evidence.  

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5. Learned Counsel appearing on behalf of the State has

vehemently submitted that even the High Court has committed a

grave error in acquitting Bhanwar Lal.

5.1 It is submitted by the Learned Counsel appearing on behalf of

the  State that Injury  No.3  was  attributed to  Accused –  Jagdish

Prasad which proved to be fatal.  It is submitted that prior incident

has been proved from the deposition of PW2 – Om Prakash.   It is

further submitted that PW2 in his deposition viz. the eye­witness of

the occurrence has specifically attributed Injury No. 3 to Jagdish

Prasad.  It is submitted that to that extent the deposition of PW 2 is

reliable and believable and therefore the Trial Court as well as the

High Court have rightly convicted Jagdish Prasad.  It is submitted

that even another Accused – Jodhraj has also participated in the

incident and Injury No.2 was attributed to him and therefore he has

been rightly convicted by the Learned Trial Court and confirmed by

the High Court.

6. Learned Counsel appearing on behalf of the acquitted accused

– Bhanwar Lal has supported the impugned Judgment and Order

passed by the High Court acquitting Bhanwar Lal.  It is submitted

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that cogent reasons have been given by the High Court while

acquitting Bhanwar Lal and, therefore, the acquittal of Bhanwar Lal

is not required to be interfered with.

7. Heard the Learned Counsel for the respective parties at length.

We have gone through the entire evidence on record and the

Judgment and Order passed by the Learned Trial Court as well as

the impugned Judgment and Order passed by the High Court.

At the outset, it is required to be noted that the Learned Trial

Court convicted  five accused out of  14 accused who came to be

tried for the offences under Sections 148, 302/149, 379 of the IPC.

The prosecution heavily relied upon the deposition of PW2 and PW3

who claimed to be the eye­witnesses.   The prosecution also relied

upon the so­called dying declaration; however, the dying declaration

has not been believed.   In an appeal, the High Court has further

acquitted  another  Accused Bhanwar  Lal  on  the  ground  that the

statement  of  PW2 Om Prakash  and the statement  of  PW3 Ram

Dayal under Section 161 of the Cr.P.C. were recorded after a period

of 18 days and that the statement of Ram Dayal was exaggerated

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and more and more persons of the family were tried to be

implicated.   Therefore, the High  Court was of the opinion that

recording the statement under Section 161 Cr.P.C. of Om Prakash

PW2 and Ram Dayal PW3, leaves no doubt that both the witnesses

took benefit of delay and for the three injuries on the person of the

deceased Hariram, out of which one was abrasion, the witnesses

have resorted to implicate 14 accused. Thus, the blemish on the

part of  the witnesses, calls upon us to sift  grain  from the chaff.

Thus, the High Court did not accept the deposition of PW2 and PW3

so far as the accused Bhanwar Lal is concerned.   However, at the

same time, relying upon the statement of very two witnesses PW2

and PW3, the High Court has confirmed the conviction of the

Appellants – Jodhraj and Jagdish Prasad.   Therefore, considering

the facts and circumstances of the case, we are of the opinion that

if the deposition of PW2 and PW3 are not reliable qua one of the

accused on the grounds stated hereinabove and one of the accused

came to be acquitted by giving benefit of doubt, the same benefit

ought to have been given to the other accused also, unless there is

some further material/evidence against the other accused.   As

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observed hereinabove, except relying upon the deposition of PW2

and PW3, there is  no  other  evidence implicating the  appellants­

Accused convicts. Under the circumstances, in the absence of any

further evidence implicating the accused­convicts, the High Court

has materially erred in confirming the conviction of the appellant

solely relying upon the deposition of PW2 and PW3 whose

deposition has been doubted by the High Court and not relied upon

by the High Court so far as one of the accused is concerned, the

same reasoning should be applied in the appellants’ case also which

weighed with the High Court while acquitting Bhanwar Lal.  So far

as the acquittal of Bhanwar Lal is concerned, we are in complete

agreement with the view taken by the High Court.  Cogent reasons

have been given by the High Court for not believing the deposition

of PW2 and PW3.

8. In view of the reasons stated hereinabove, the appeal preferred

by accused Jodhraj  and Jagdish Prasad  is  hereby allowed.  The

impugned Judgment and Order passed by the High Court and the

Judgment and Order passed by the Trial Court convicting them for

the offences under Sections 302/149 IPC are hereby quashed and

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set aside and both of them are acquitted for the offences for which

they were tried, by giving them benefit of doubt.   The accused be

set at free forthwith, if not required in any other case.  The appeal

preferred  by the  State challenging the impugned  Judgment and

Order passed by the High Court acquitting the accused – Bhanwar

Lal is hereby dismissed.

…………………………..J. (ASHOK BHUSHAN)

…………………………..J. (M. R. SHAH)

New Delhi, November 29, 2019.