Ganga Singh And Anr vs State Of Rajasthan
2023 Latest Caselaw 698 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 294/1992

State Of Rajasthan
                                                                   ----Appellant
                                   Versus
1. Bhagwan Singh S/o Shri Ganpat Singh, B/c Rajput. (Passed
away on 31.12.2014- Appeal abated on 15.09.2022)
2. Ganga Singh S/o Shri Bhagwan Singh, B/c Rajput, both are
R/o V. Bagrasar, at present residing at Barli, Tehsil & District
Nagaur.
                                                                ----Respondents
                             Connected With
               D.B. Criminal Appeal No. 141/1992
1. Ganga Singh S/o Bhagwan Singh
2. Bhagwan Singh S/o Ganpat Singh (Passed away on
31.12.2014- Appeal abated on 15.09.2022)
   Both by caste Rajput R/o Bagrasar, Distt. Nagaur.
                                                                  ----Appellants
                                   Versus
State Of Rajasthan
                                                                ----Respondent


For Appellant(s)         :     Mr. Sunil Mehta
For Respondent(s)        :     Mr. B.R. Bishnoi, AGC



          HON'BLE MR. JUSTICE SANDEEP MEHTA
          HON'BLE MR. JUSTICE KULDEEP MATHUR

                                Judgment

Date of pronouncement : 18/01/2023

Judgment reserved on : 29/11/2022

BY THE COURT : PER HON'BLE MEHTA, J.

These two appeals arise out of the judgment dated

02.04.1992 rendered by the learned Additional Sessions Judge,

Nagaur in Sessions Case No.2/1990, whereby the learned trial

(2 of 18) [CRLA-294/1992]

court acquitted the accused-respondents from the charges under

Section 302 and in the alternative 302/34 IPC and instead

convicted them for the offence under Section 323 and 325 IPC and

sentenced them as below :-

Offence for which convicted             Sentence awarded
Section 323 IPC                         Six      months'      rigorous
                                        imprisonment alongwith a fine
                                        of Rs.500/- and in default of
                                        payment of fine, further to
                                        undergo one month's simple
                                        imprisonment
Section 325 IPC                         Two       years'      rigorous
                                        imprisonment alongwith a fine
                                        of Rs.1,000/- and in default of
                                        payment of fine, further to
                                        undergo two months' simple
                                        imprisonment

The State of Rajasthan has preferred D.B. Criminal

Appeal No.294/1992 for assailing the acquittal of the accused from

the charges under Section 302 and 302/34 IPC, whereas the

accused have filed the appeal under Section 374(2) CrPC for

assailing their conviction and sentences as recorded by the trial

court in the above terms.

As both the appeals arise from the judgment dated

02.04.1992, the same have been heard and are being decided

together by this common judgment.

Briefly stated, facts relevant and essential for disposal

of the appeal are noted hereinbelow :-

Shri Ganga Singh (P.W.1) lodged a written report

(Ex.P/1) to the SHO, Police Station Nagaur on 06.01.1990 alleging

inter alia that on the previous day, i.e. 05.01.1990, he and his

(3 of 18) [CRLA-294/1992]

father Shri Richhpal Singh had gone to Nagaur in their camel cart

carrying with them dry wood for sale. They could complete the

sale by evening and thereafter, they started back for their village

Bagarasar. Rewant Ram S/o Akharam and Madan Lal S/o Ram Lal

Khati, who had also come to Nagaur for selling wood, joined them.

His father and one Ladu Ram were sitting on his cart, whereas he

was sitting on the cart of Madan Lal. His cart was following the

cart of Madan Lal. They came out of Nagaur and were proceeding

on the road towards Bhadana. They reached near the well of

Malis, Ganga Singh S/o Bhagwan Singh and Bhagwan Singh S/o

Ganpat Singh Rajputs, residents of Bagrasar, were waiting

amongst the bushes. Both of them were armed with lathis. They

launched an attack causing extensive injuries to his father, due to

which, he received injuries all over his body and his hands and

legs were fractured. The incident was witnessed by the first

informant, Ladu Ram and Madan Lal, but they did not go near or

intervene fearing for their own lives. Presuming that his father

had died, the accused went away hurling an insinuation that if

anyone went towards Nagaur, then he too would be killed. His

father was boarded on to the camel cart and taken to Deh

Hospital, where the doctor checked his father and administered

some medicines and advised that the condition of his father was

serious and thus, he should be taken to Nagaur. He sent someone

with a jeep to fetch Shri Sundar Singh, maternal uncle of his

father, from the village. He also sent information to his own

village, from where his father's uncle Shri Sukh Singh came. They

boarded Shri Richhpal Singh on the jeep for taking him to Nagaur

and had proceeded about two kms. from Deh, at that point of

(4 of 18) [CRLA-294/1992]

time, his father expired. His father's body was lying in the jeep.

It was alleged that Ganga Singh and Bhagwan Singh had killed his

father owing to a previous enmity. This report was submitted to

the SHO, Police Station Nagaur on 06.01.1990 at 1.00 p.m. On

further enquiry, the informant told the police officer that the

incident took place on the public way near the Village Badli at

about 05.30 to 05.45 p.m. By that time, sun had not set. A

formal FIR No.7/1990 (Ex.P/18-A) came to be registered on the

basis of this written report. It is relevant to mention here that the

SHO Birbal Singh did not make endorsement of time of receiving

the report in the document. This report was received at the Police

Station, Nagaur at 01.00 p.m. as per the endorsement made after

the Karyawahi Police. The police Station Nagaur is located at a

distance of less than 1 km. from the court premises, in spite

thereof, the formal FIR (Ex.P/18) was received in the court of the

Magistrate concerned on 07.01.1990 at 10.30 a.m. Be that as it

may. The usual investigation was undertaken. Panchayatnama

Lash, Surat Haal Lash etc. were prepared. Blood stained soil was

collected from the place of incident. The clothes of the deceased

were seized. The site inspection plan (Ex.P/2) was prepared, as

per which, on one side of the crime scene, there is a barbed wire

fencing of the Forest Department and on the other side, field of

Poonaram Mali is located. However, what is significant to note

here is that there is no reference in the site plan to existence of

any bushes wherein the accused could have hidden. The dead

body of Shri Richhpal Singh was subjected to postmortem at the

hands of a medical jurist of the Government Hospital, Nagaur, who

(5 of 18) [CRLA-294/1992]

issued the postmortem report (Ex.P/9) taking note of the following

injuries :-

1. Lacerated 1" x 1/2"x bone deep on right tibial Skin in middle 1/3rd region, bone piece is coming.

2. Abrasion 3" x 1/2" on contusion 4" x 2" on right leg in upper half anteriorly.

3. Contusion 3" x 1-1/4" on Postero-lateral aspect of right leg upper region.

4. Irregular abrasion 3" x 2" on contusion 4" x 3" on lower region of right knee and upper region of leg arteriorly.

5. Abrasion 1-1/2" x 3/4" on right patellar region knee.

6. Contusion 3" x 1-1/4" on autero-lateral aspect of right thigh placed obliquely in lower region.

7. Two contusions 8" x 1" and 6" x 1-1/4" on postero-lateral aspect of right thigh placed transversely in middle.

8. Lacerated 3" x 3/4" x bone deep on left tebial Shin in lower half region.

9. Contusion 2" x 1" and 1-1/2" x 1" on autero- lateral aspect of left leg lower region leg is band here due to # both bones.

10. Abrasion 3/4" x 1/2" on left tibial skin middle region.

(6 of 18) [CRLA-294/1992]

11. Lacerated 1/2" x 1/4"x skin deep on left tibial skin upper region

12. Abrasion 1"x3/4" on lower region of left knee anteriorly.

13. contusion 4" x 1/4" on autero-lateral aspect of left thigh in middle placed transversely.

14. contusion 2" x 1" on left thigh, lower region anteriorly

15. Abrasion 3/4" x 1/2" on upper region of left knee

16. Abrasion 1-1/2" X 1/4" on contusion 3" x 1" at postero-lateral aspect left forearm in middle

17. Abrasion 3/4" x 1/6" on contusion 1-1/4" x 1" on postero-lateral aspect of left forearm in lower region,

18. lacerated 1-1/2" x 1/2"x muscle deep web between thumb and index finger of left hand

19. Contusion 2" x 1" on postero-lateral of right forearm in lower region

20. Lacerated 1" x 1/4"x skin deep web between thumb and index finger of Right hand.

Both the accused were arrested. Acting on the basis of

their disclosure statements, lathis were recovered. The accused

Bhagwan Singh was found having large number of injuries at the

time of his arrest and thus, he was medically examined and the

medico-legal report (Ex.D/7) was prepared. After concluding

investigation, charge-sheet came to be filed against both the

accused for the offences punishable under Section 302 IPC and in

(7 of 18) [CRLA-294/1992]

the alternative 302/34 IPC. The case was committed to the Court

of Additional Sessions Judge, Nagaur and charges were framed

against the accused appellants for the above offences. Both the

appellants pleaded not guilty and claimed trial. The prosecution

examined as many as 16 witnesses and exhibited 20 documents

so as to prove its case. The accused were questioned under

Section 313 CrPC and were confronted with the circumstances

appearing against them in the prosecution case. The accused

Ganga Singh took a pertinent plea that he was not even present at

the spot and had been falsely implicated in this case. The accused

Bhagwan Singh made a pertinent statement that he was watering

his buffaloes when Richhpal Singh came across with his camel cart

and spooked the buffaloes. He resisted, upon which, Richhpal

Singh gave lathi blows to him and the buffaloes and in this

process, he raised his lathi. He stated that only Poonaram was

present when the incident took place. 2 witnesses were examined

and 7 documents were exhibited in defence. After hearing the

arguments advanced by the learned Public Prosecutor and the

learned defence counsel and appreciating the material evidence

available on record, the learned trial court found that the conduct

of the witnesses, Ganga Singh (P.W.1), Ladu Ram (P.W.2), Madan

Lal (P.W.3) and Rewant Ram (P.W.4) in not taking Richhpal Singh

to Nagaur for treatment even though distance between the place

of incident to Nagaur was only 4 kms. and instead taking him to

Deh in night at about 11 o'clock would indicate that no serious

efforts were made whatsoever to save Richpal Singh and timely

treatment was not provided to the victim. Furthermore, the

doctor at Deh examined Shri Richhpal Singh at 11 o'clock in the

(8 of 18) [CRLA-294/1992]

night and after providing him conservative medication, he advised

that the injured should be taken to higher center, i.e. Nagaur for

treatment and made a referral as such, but in spite thereof, the

family members kept waiting till late in the morning and that

worsened the condition of the injured leading to his death even

though he had no grievous injuries on any vital body organs.

Consequently, the accused were acquitted from the charge under

Section 302 IPC and the offence was toned down and conviction of

the accused was recorded in the above terms by the impugned

judgment dated 02.04.1992, which is assailed in these two

appeals.

Learned counsel Shri Sunil Mehta, representing the

accused appellants, vehemently and fervently contended that the

prosecution case is false and fabricated. As a matter of fact,

Richhpal Singh was all alone at the time of the incident and none

of the witnesses were accompanying him and there was no

significant motive for the accused to commit the crime. He urged

that the explanation offered by accused Bhagwan Singh in his

statement under Section 313 CrPC that he was watering his

buffaloes when Richhpal Singh spooked them leading to the fight

is the true description of the incident. In this conflict, Bhagwan

Singh himself received number of injuries. The prosecution

witnesses did not offer any explanation for the injuries suffered by

Bhagwan Singh in the same incident. He submitted that even if

for a moment, it is believed that the incident took place in the

manner alleged by the material prosecution witnesses including

Shri Ganga Singh (P.W.1), first informant and son of the deceased,

(9 of 18) [CRLA-294/1992]

the conduct of these 3 so-called eye-witnesses in not making any

effort whatsoever to prevent the quarrel and not intervening to

save the victim from assault is a strong pointer to the fact that

none of the witnesses was accompanying Richhpal Singh at the

time of the assault. He contended that Deh is at a distance of

more than 10 km from the place of incident, whereas Nagaur is

located at a distance of just 4 km. If at all the so-called eye-

witnesses had seen the incident happening with their own eyes

and presuming that they could not muster courage to save the

victim, in natural course of human conduct, they would be

expected to approach the police station, Nagaur, which was

located close-by at about 4 km and would also have made efforts

to get the injured to the hospital at the earliest. He urged that

the fictitious plea of the eye-witnesses that they felt threatened by

the insinuations of the accused that they should not proceed

towards Nagaur is nothing but a created theory. The two accused

were not armed with any dangerous weapons and were only

having sticks in their hands as per the testimony of three

prosecution eye-witnesses. The prosecution witnesses too had

access to sticks, which usually are fixed on the camel carts and as

such, nothing prevented the complainant and the witnesses from

raising these sticks to ward off the attack made by the accused

and thereafter, when the accused had gone away from the place of

incident, the complainant and the witnesses had the opportunity

to compose themselves and to take the injured to the Nagaur

hospital for providing him immediate treatment. However, the

witnesses allegedly took the injured to Deh hospital on the camel

cart, thereby wasting almost 5 to 6 hours (time of the incident

(10 of 18) [CRLA-294/1992]

was 05.30 to 06.00 and the time of the injured being examined at

the Deh hospital by the doctor was 11.00 pm.). He, thus, urged

that the conduct of the prosecution witnesses makes it clear that

they were not present at the place of incident. Shri Mehta further

pointed out that even after the Doctor at Deh referred the injured

to Nagaur Hospital, the complainant and his companions, namely,

Ladu Ram (P.W.2), Madan Lal (P.W.3) and Rewant Ram (P.W.4),

continued to waste time and randomly called out for other

relatives. The jeep of Vijay Singh (P.W.6) who resided just behind

the hospital, had been arranged very soon after the incident, but

despite that, the vehicle was sent to fetch the other relatives from

distant villages instead of taking the deceased to the hospital.

This circumstance, as per Shri Mehta, is sufficient to conclude that

none of the witnesses were present at the spot. The injured must

have been brought to the hospital by some passers by and then

the family members must have been informed about the incident.

They must have been told that Shri Richhpal Singh too had caused

injuries to Bhagwan Singh and thus, the FIR was got lodged so as

to forestall any action from the side of the accused persons. Shri

Mehta further submitted that significant injuries caused to accused

Shri Bhagwan Singh in the very same incident were not explained

by the prosecution witnesses and therefore, also, their testimony

is fit to be discarded. On these grounds, Shri Mehta implored the

court to accept the appeal filed by the accused, acquit them of the

charges and dismiss the appeal preferred by the State.

Per contra, learned Public Prosecutor, vehemently and

fervently opposed the submissions advanced by the appellants'

(11 of 18) [CRLA-294/1992]

counsel. He urged that the prosecution eye-witnesses are

absolutely truthful and their evidence is trustworthy. The accused

were bearing previous grudge against the members of the

complainant party. They knew that the complainant and his

companions would be passing by the field of Poonaram after

having sold wood in Nagaur and were lying in wait. Both the

accused were armed with lathis. Taking advantage of the fact that

members of the complainant party were unarmed, the accused

launched a pre-meditated attack on them and in this process,

numerous injuries were caused to Shri Richhpal Singh. These

injuries were so grave that the victim had no chance of survival.

The family members tried to provide timely medical aid to the

injured, but to no avail. Learned Public Prosecutor fervently urged

that the defence plea that Shri Richhpal Singh attacked the

accused Bhagwan Singh is totally cooked up and unacceptable on

the face of the record. Regarding the injuries suffered by the

accused Bhagwan Singh, the contention of the learned Public

Prosecutor was that the presence of the injuries establishes

participation of the accused in the incident and does not help the

defence theory in any manner. He further submitted that as many

as 20 injuries were caused by the accused to Shri Richhpal Singh

with numerous fractures on the arms and legs and thus, there was

no chance of Shri Richhpal Singh surviving the trauma of these

injuries. Thus, the learned Public Prosecutor submitted that the

medical jurist Dr. D.R. Choudhary (P.W.7) of Government Hospital,

Nagaur clearly stated in his evidence that the cumulative effect of

the injuries caused to Shri Richhpal Singh proved fatal and hence,

as per him, acquittal of the accused from the charge under

(12 of 18) [CRLA-294/1992]

Section 302 is unjustified and illegal. On these submissions,

learned Public Prosecutor implored the court to accept the State

appeal, reverse acquittal of the accused from the charge under

Section 302 IPC and to award them suitable punishment and at

the same time, he sought dismissal of the appeal against

conviction.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned judgment and have minutely re-appreciated the

evidence available on record.

At the outset, a few important facts of the case need to

be noted. On going through the FIR (Ex.P/18-A), and the

evidence of the first informant Shri Ganga Singh (P.W.1), we find

nothing which can even remotely suggest that the accused had

any ostensible reason/motive so as to have launched the assault

upon the deceased Shri Richhpal Singh. Deceased Shri Richpal

Singh received the injuries at the place Maliyon Ki Badi while

proceeding back to his village. This location is about 4 kilometers

from the city of Nagaur as per the geographical map of Nagaur

district. Deh is at a distance of about 18 kms. from the place

where the assault took place. As per the evidence of the star

prosecution eye-witnesses, Ganga Singh (P.W1), Ladu Ram

(P.W.2), Madan Lal (P.W.3) and Rewant Ram (P.W.4), after the

assault, they boarded Richhpal Singh on to a camel cart and took

him to Deh. They did not proceed to Nagaur because they were

apprehensive regarding further acts of aggression by the accused.

The medical officer Dr. Premchand (P.W.12) categorically stated

(13 of 18) [CRLA-294/1992]

that Richhpal Singh was brought to Deh Hospital at 11.00 p.m. in

the night. Thus, there was a gap of almost five and half hours

between the time of incident and the arrival of the injured at the

hospital. The doctor examined Shri Richhpal Singh and

immediately referred him to the Nagaur Hospital. The material

prosecution witnesses referred to supra, after reaching the Deh

Hospital, claimed to have made efforts to call for other relatives.

For this purpose, the jeep of the witness Vijay Singh (P.W.6) was

engaged. The jeep owner Vijay Singh (P.W.6) stated that

Rewantram and Ganga Singh approached him at about 11.30 in

the night and requested him to proceed to Chhapada in his Jonga

Jeep for bringing the Sarpanch and Samandar Singh. Rewant Ram

accompanied him to Chhapada. They picked up Samandar Singh

and came back to the Deh Hospital at 02.30 a.m. in the night. A

careful analysis of the evidence of the so-called eye-witness is

sufficient to convince the court that as a matter of fact, none of

the so-called eye-witnesses had actually seen the incident. It

seems that Richhpal Singh received the injuries at the hands of

some unknown assailant, whereafter the relatives were informed.

The complainant party resides at Village Bagarasar and they

thought it fit to take the victim to the Deh Hospital. There the

doctor provided initial treatment and then referred the injured to

the Nagaur Hospital. More relatives were called to Deh Hospital

and a decision was taken to take Richhpal Singh to Nagaur and

finally he was boarded on to the Jonga Jeep in the morning at

about 04.30 a.m. and was being taken to the Nagaur Hospital, but

expired before reaching there. As the witnesses accompanying

the deceased Shri Richhpal Singh were four in number, i.e. Ganga

(14 of 18) [CRLA-294/1992]

Singh (P.W.1), Ladu Ram (P.W.2), Madan Lal (P.W.3) and Rewant

Ram (P.W.4), and as the accused were only two in number, there

was no rhyme or reason as to why four persons would feel so

threatened by the accused duo that they would not make any

effort whatsoever to take the injured to the closest and better

medical facility, i.e. at Nagaur situated at a distance of merely 4

km. Furthermore, the police station Nagaur is also located just

near the hospital and thus, in the natural course of human

conduct, the witnesses, if at all they had seen the incident

happening with their own eyes, would definitely have taken the

injured to the Nagaur Hospital and would also have approached

the police to report the matter. All the 4 witnesses referred to

supra, i.e. Ganga Singh (P.W.1), Ladu Ram (P.W.2), Madan Lal

(P.W.3) and Rewant Ram (P.W.4), gave a stereotyped story in

their examination-in-chief that the time was about 5 o'clock in the

evening. They were proceeding to the Village Bagarasar on their

camel carts. They had reached about 2 km. further ahead of

Badli, where there was a wire fencing of the Forest Department.

The accused appellants were lying in wait hiding amongst the

bushes. They were armed with bamboo sticks. Both inflicted lathi

blows to Shri Richhpal Singh and Shri Ganga Singh. Richhpal

Singh fell down from the cart, after which, both the accused

rained innumerable lathi blows on the person of Shri Richhpal

Singh. The witnesses cried out and pleaded for mercy. However,

the witnesses did not intervene because the accused had

threatened that they too would be beaten. They were empty-

handed. After the assault, the accused proceeded towards Nagaur

making an insinuation that if the witnesses came to Nagaur, they

(15 of 18) [CRLA-294/1992]

too would be killed. That is why the witnesses boarded Shri

Richhpal Singh on the camel cart and took him to Deh. Prima

facie, this story is unbelievable. Pertinent cross-examination was

made from Ganga Singh regarding the motive for the incident, to

which, he replied that the field of the accused is located nearby to

their field and the cattle of the accused trespass into their fields

and that is why, previous animosity was prevailing for the last two

to three years. The witness admitted that there was no

immediate cause for the assault. The witness also admitted that

the accused had been residing in Badliwas for the last four to five

years and did not come to their fields.

The defence gave a pertinent suggestion to the material

eye-witnesses that Bhagwan Singh alone was watering his

buffaloes from the open tank built in front of field of Poonaram

and at that point of time, there was an altercation between

Richhpal Singh and Bhagwan Singh and that Bhagwan Singh

inflicted lathi blows to Richhpal Singh and that the incident was

witnessed by Poona Mali. The witnesses denied this suggestion.

We are compelled to reiterate that the explanation

given by the witnesses for not making any effort whatsoever to

save Shri Richhpal Singh from the assault is absolutely flimsy and

unacceptable looking at the fact that the accused were only two

and the witnesses were four in number. The injured passed away

in the morning at about 04.30 a.m. Shri Ganga Singh and his

companions claimed to have reached Nagaur Hospital with the

dead body of Richhpal Singh in the early hours of morning, yet the

FIR came to be lodged at 01.00 p.m., even though the police

(16 of 18) [CRLA-294/1992]

station is located adjacent to the hospital. We are further of the

view that the very factum of registration of the FIR at 01.00 p.m.

on 06.01.1990 is doubtful because the copy of the FIR reached

the Court of the Magistrate concerned on 07.01.1990 at 10.30

a.m. as per the endorsement made thereupon. As the court

premises are located nearby the Police Station Nagaur, there was

no rhyme or reason for this gross delay in forwarding the FIR to

the court.

The most significant statement from amongst the

prosecution witnesses is that of Poonaram Mali (P.W.11). The

witness stated that the incident took place in the evening at about

05.30 p.m. Richhpal Singh was watering his camel from the open

water tank outside his field. Bhagwan Singh also brought his

buffaloes to the water tank. Richhpal Singh told Bhagwan Singh

to stop his cattle, but the buffaloes could not be restrained, on

which, Richhpal Singh have a lathi blow to Bhagwan Singh, who

was all alone. Learned Public Prosecutor declared the witness

hostile and confronted him with his previous police statement

(Ex.P/12), wherein the witness had denied being present at the

place of incident. Nonetheless, we are of the view that the

statement of Poonaram (P.W.11) is reliable and is corroborated

from attending circumstances available on record, most important

being the fact that Bhagwan Singh was found having injuries when

he was arrested.

Bhagwan Singh claimed to have received injuries in the

very same incident and his medical examination was conducted by

Dr. D.R. Choudhary on police requisition and medico-legal report

(17 of 18) [CRLA-294/1992]

(Ex.D/7) was issued taking note of 3 injuries on the body of Shri

Bhagwan Singh.

The conclusion that the FIR is a post investigation

document is further affirmed from the circumstance that the FIR

number is not mentioned in the postmortem report (Ex.P/9),

which was prepared at 03.30 p.m. on 06.01.1990. Thus, there is

a grave doubt on the claim of the prosecution witnesses and the

SHO Shri Birbal that the FIR was registered at the time mentioned

in the report (Ex.P/1), i.e. 01.00 p.m. The accused Bhagwan

Singh in the statement under Section 313 CrPC made an honest

disclosure and stated that he came to the same tank for watering

his buffaloes while Richhpal Singh was watering his camel, at

which point of time, a fight flared up and during the course

thereof, he inflicted few lathi blows to Richhpal Singh and at the

same time, Richhpal Singh also gave him lathi blows. This fact is

corroborated from the medico-legal report (Ex.D/7) of Shri

Bhagwan Singh and so also the statement of Poonaram (P.W.11).

The statements of the material prosecution witnesses Ganga

Singh (P.W.1), Ladu Ram (P.W.2), Madan Lal (P.W.3) and Rewant

Ram (P.W.4), wherein they claimed to have witnessed the incident

is belied by the attending circumstances, which we have discussed

in detail. The trial court, after appreciating the evidence available

on record convicted both the accused persons for the offences

punishable under Section 323 and 325 IPC. However, we are of

the firm opinion that the prosecution has failed to prove

involvement of the accused Ganga Singh in the incident by

plausible reliable evidence. Qua the accused Bhagwan Singh,

(18 of 18) [CRLA-294/1992]

since he himself admitted participation in the incident, the findings

recorded by the trial court could be of some relevance, but as the

appeal of Bhagwan Singh has abated, we need not make any

evaluation of these findings.

As a consequence, we are of the opinion that the

accused appellant Ganga Singh deserves to be acquitted by giving

him the benefit of doubt. The impugned judgment dated

02.04.1992 rendered by the learned Additional Sessions Judge,

Nagaur in Sessions Case No.2/1990 is set aside. The appeal filed

by Ganga Singh is, thus, allowed. He is acquitted from the

charges. He is on bail. He need not surrender and his bail bonds

are discharged. The appeal filed by the State of Rajasthan is

dismissed as being devoid of merit.

However, keeping in view the provisions of Section

437-A CrPC, appellant Ganga Singh shall furnish a personal bond

in the sum of Rs.40,000/- and a surety bond in the like amount

before the learned trial court, which shall be effective for a period

of six months to the effect that in the event of filing of a Special

Leave Petition against the present judgment, on receipt of notice

thereof, the appellant shall appear before the Supreme Court.

                                   (KULDEEP MATHUR),J                                     (SANDEEP MEHTA),J

                                    Pramod/-









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