State vs Vishnu @ Wisanu And Anr. ...
2025 Latest Caselaw 11464 Raj

Rajasthan High Court - Jodhpur

State vs Vishnu @ Wisanu And Anr. ... on 16 April, 2025

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

[2025:RJ-JD:20357-DB]

 HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
             D.B. Criminal Appeal No. 516/1993

State of Rajasthan
                                                                    ----Appellant
                               Versus
1. Vishnu @ Wisanu son of Sh. Khinv Raj,
2. Santosh son of Sh. Khinv Raj, resident of Chhoti Bhil Basti,
Soorsagar, Jodhpur, P.S. Soorsagar.
                                               ----Respondent



For Appellant(s)          :     Mr. Rajesh Bhati, P.P.
For Respondent(s)         :     Mr. Naman Mohnot



        HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE SANDEEP SHAH

Order

16/04/2025

1. This criminal appeal has been preferred by the appellant-State

laying a challenge to the judgment of acquittal dated 09.06.1993

passed by the learned District and Session Judge, District Jodhpur, in

Sessions Case No.30/1993 (State of Rajasthan Vs. Vishnu @Wisanu &

Anr.), whereby the accused-respondents were acquitted of the charge

under Section 302 of Indian Penal Code, 1860 (in short, "IPC").

2. The matter pertains to an incident which had occurred in the

year 1992 and the present appeal has been pending since the year

1993.

3. Brief facts of the case, as placed before this Court by learned

Public Prosecutor appearing on behalf of the appellant-State, are that

the complainant and the accused parties were the residents of a small

basti near Chandpol, Jodhpur. On 03.11.1992, late at night Santosh

(now deceased) entered the house of accused-respondent and

attempted to outrage the modesty of Gomti (wife of accused-

[2025:RJ-JD:20357-DB] (2 of 16) [CRLA-516/1993]

respondent Vishnu), and upon she made hue and cry, Santosh (now

deceased) ran away from the spot.

3.1. The said incident thereafter, was brought before the Panchayat

and on 09.11.1992, the deceased was found guilty of outraging the

modesty of the wife of accused-respondent, and accordingly, a fine of

Rs.2100/- was imposed upon Santosh (now deceased).

3.2. On the following day at night, i.e., on 10.11.1992, at around

9:00 p.m., the deceased went to the same locality to meet a relative

named Ramlal (PW.2) and left the said place within a short time.

Whereupon Sita (PW.14) called Ramlal (PW.2), who on arriving saw

the accused-respondents, namely, Vishnu and Santosh armed with an

axe and lathi, respectively, beating the deceased and when Ramlal

(PW.2) ran after them, the accused-respondents ran away from the

place of incident.

3.3. Ramlal (PW.2) immediately rushed to the Police Station,

Soorsagar, whereupon the police officials reached at the place of

incident. Deceased-Santosh was put in a jeep to be taken to the

hospital, however he passed away on the way itself and was declared

dead by the doctors. Ramlal (PW.2) subsequently reported the

incident in question to the concerned police station at 11:45 p.m.

4. On the basis of the aforementioned information, an FIR was

registered and the investigation accordingly commenced. After

investigation, the police filed a charge-sheet under Section 302 IPC

against the accused-respondents, and the trial commenced

accordingly.

5. During the course of trial, the evidence of prosecution witnesses

(P.W. 1 to 31) were recorded and documents (Ex.P. 1 to 31) were

[2025:RJ-JD:20357-DB] (3 of 16) [CRLA-516/1993]

exhibited on behalf of the prosecution; in defence, two documents

(Ex.D.1-2) were exhibited; whereafter, the accused-respondents were

examined under Section 313 Cr.P.C., in which they pleaded innocence

and their false implication in the criminal case in question.

6. Thereafter, upon hearing the contentions of both the parties as

well as considering the material and evidence placed on record, the

learned Trial Court, acquitted the accused persons, namely, Vishnu

and Santosh, as above, vide the impugned judgment of acquittal

dated 09.06.1993, against which the present appeal has been

preferred on behalf of the appellant-State.

7. Learned Public Prosecutor for the appellant-State submitted that

the judgment of acquittal is not in accordance with law, as prior to

passing the same, the learned Trial Court has not appreciated the

material and evidence available on record, inasmuch as there were

two eye-witnesses namely Ramlal (PW.2) and Sita (PW. 14), who

have categorically stated to have clearly seen the accused-

respondents committing the crime in question, as there was sufficient

light (bulb) at the place of incident.

7.1. Learned Public Prosecutor further submitted that the Post-

Mortem Report is corroborated by statements of aforementioned eye-

witnesses as they have stated that there were multiple injuries that

were caused to the deceased and as per the said report also, there

were 18 injuries at different parts of the body, of which injury no. 3

was sufficient in ordinary course to cause death. Further, Dr.M.P. Joshi

(PW. 30) further corroborates the statements rendered by the said

two eye-witnesses.

[2025:RJ-JD:20357-DB] (4 of 16) [CRLA-516/1993]

7.2. Learned Public Prosecutor also submitted that the blood stained

axe and lathi were recovered. Kailash (PW.21) and Malaram (PW.22)

have corroborated by their statements the fact of the said recovery.

7.3. Learned Public Prosecutor further submitted that Vishnu

(accused-respondent) had a previous enmity with the deceased, as

the deceased had on an earlier occasion tried to outrage the modesty

of Gomti, wife of Vishnu, for which a Panchayat was also called,

which clearly shows that the accused-respondents had a motive to

commit the said crime.

7.4. Learned Public Prosecutor also submitted that the FIR under

Section 302 IPC was registered just after the incident, and therefore,

it cannot be said that the whole prosecution story is concocted, false

or fabricated.

8. On the other hand, learned counsel for the accused-

respondents, while opposing the submissions made on behalf of the

appellant-State, submitted that all the witnesses including the eye-

witnesses were interested witnesses and only Pukhraj (PW.1) father

of the deceased, Ramlal (PW.2) brother-in-law of the deceased and

Sita (PW.14) sister-in-law of the complainant, have given testimony

against the accused-respondents, and none of the other witnesses

have supported the prosecution story, even when Bhanwarlal (PW.4),

Samda (PW.10) and Bhanki (PW.11) were admittedly present at the

place of the alleged incident.

8.1. Learned counsel also submitted that there were multiple

contradictions in the testimonies of the prosecution witnesses. The

following were the contradictions pointed out by the learned counsel:

[2025:RJ-JD:20357-DB] (5 of 16) [CRLA-516/1993]

8.1.1. Pukhraj (PW.1) stated that Chetandas (PW.15) came and

informed him that the accused-respondents were beating Santosh

(deceased) and therefore, they went to the place of incident, but as

soon as they reached the spot, the accused-respondents ran away.

On the other hand, the testimony of Chetandas (PW.15) reflects that

prior to their arrival at the place of incident, the body of deceased

had already been taken by the police. Consequently, there is a clear

contradiction between the statements of Pukhraj (PW.1) and

Chetandas (PW.15) as to when they reached the place of the alleged

incident.

8.1.2. Pukhraj (PW.1) stated in his testimony that when he

reached the place of incident, Chunnilal (PW.24) made a telephonic

call to the police, whereupon, the police reached the spot and took

Santosh (deceased) to the hospital, whereas, the testimony of

Chetandas (PW.24) suggests that the body of deceased had already

been taken by the police.

8.1.3. As per the testimony of Pukhraj (PW.1), the police was

informed telephonically, whereas, Ramlal (PW.2) stated that he

walked towards the Police Station, to inform the police, after the

accused-respondents ran away. On a parallel note, Sita (PW.14)

contradicts the above by stating that Ramlal (PW.2) went to inform

the police of the said incident on a bicycle. Furthermore, Sita (PW.14)

has also stated that before going to the police station, Ramlal (PW.2)

telephoned at the Station. Lastly, the S.H.O. (PW.26) has denied any

telephonic conversation with respect to the alleged incident.

8.1.4. Sita (PW.14) and Pukhraj (PW.1) stated that there was

light at the place of incident, however, Ramlal (PW.2) stated of there

[2025:RJ-JD:20357-DB] (6 of 16) [CRLA-516/1993]

being no equipment of light. Furthermore, as per Naksha Mauka

(Ex.P. 18), there was no mention of light being there at the place of

incident.

8.1.5. Pukhaj (PW.1) stated that when he reached the place of

incident, Bhanwarlal (PW.4) was present near the dead body of

Santosh, and as per Ramlal (PW.2), it was only when he shouted,

Bhanwarlal (PW.4) arrived there; on the contrary note, Sita (PW.14)

stated that Bhanwarlal (PW.4) reached the place of incident, upon

being called upon by the police.

8.1.6. As per Ramlal (PW.2), the alleged incident had happened

in front of the house of Bhanwarlal (PW.4) but in a total contradiction,

Sita (PW.14) stated that the incident happened in front of the house

of accused-respondent Vishnu. However, as per the Naksha Mauka

(Ex.P.18) the houses of Bhanwarlal (PW.4) and the accused-

respondent Vishnu do not face each other, which therefore creates a

discrepancy as to the actual place of incident.

8.1.7. Sita (PW.14) in her cross-examination has clearly stated

that when she made hue and cry, her husband Chetandas (PW.15)

alongwith Ramlal (PW.2) came out of the house. However, Chetandas

(PW.15) has not deposed anything about witnessing the incident,

neither did Ramlal (PW.2) depose anything about Chetandas (PW.15)

being with him. In fact, Ramlal (PW.2) stated that when he saw the

incident, Sita (PW.14) was not witnessing the incident in question.

Moreover, as per Sita (PW.14), not only her husband Chetandas

(PW.15) but also her sister-in-law [wife of Ramlal (PW.2)] was an

eye-witness to the said incident.

[2025:RJ-JD:20357-DB] (7 of 16) [CRLA-516/1993]

8.1.8. There are material contradictions in the description of the

alleged incident given by Sita (PW.14) and Ramlal (PW.2). Sita

(PW.14) stated that it was after accused-respondent Vishnu caused

three injuries by an axe, Ramlal (PW.2) and her husband Chetandas

(PW.15) came to the place of incident. On the other hand, Ramlal

(PW.2) in his testimony stated that accused-respondent Vishnu

caused the injuries by axe on right leg, hand, and back of the

deceased, in front of the said witness. However, as per the Post

Mortem Report (Ex.P.30), there were only three injuries caused by a

sharp edged weapon, and therefore, there is no corroboration

between the testimonies of Sita (PW.14), Ramlal (PW.2) and Post-

Mortem Report (Ex.P. 30) in this regard. Furthermore, as per Ramlal

(PW.2), the injury caused by the axe was caused on right leg and

back of the deceased-Santosh; however as per Post Mortem Report

(Ex.P. 30), there were no injuries on the right leg and back of the

deceased-Santosh. The testimony of Sita (PW.14) also does not

match with the contents of the Post Mortem Report (Ex.P. 30).

8.1.9. As per the police diary (Ex.D.2), the alleged incident was

reported at 10:30 p.m., however, as per the S.H.O. the FIR was not

registered because Ramlal (PW.2) informed that the beating was still

going on and that is why the police reached the place of incident

without registering the FIR. On the other hand, Ramlal (PW.2), in his

examination-in-chief has stated that when the accused-respondents

ran away from the place of incident, he went to the Police Station.

Furthermore, the date of registration of FIR is 10.11.1992, but Ramlal

(PW.2), stated that he lodged the FIR the next day, i.e., on

11.11.1992.

[2025:RJ-JD:20357-DB] (8 of 16) [CRLA-516/1993]

8.2. In support of such submissions, learned counsel relied upon the

following judgments rendered by the Hon'ble Apex Court:

1. Ballu @Balram @Balmukund and Anr. vs. The State of Madhya

Pradesh (Criminal Appeal No. 1167/2018, decided on

02.04.2024)

2. Md. Jabbar Ali & Ors. vs. The State of Assam (Criminal Appeal

No. 1105/2010) with Md. Ajmot Ali vs. The State of Assam

(Criminal Appeal No. 1128/2010, decided on 17.10.2022).

9. Heard learned counsel for the parties as well as perused the

record of the case and the judgments presented at the Bar.

10. This Court notes that the instant appeal arises from the incident

dated 10.11.1992 wherein one Santosh passed away, and in

pursuance of which an FIR was lodged on 10.11.1992 against the

accused-respondents, Vishnu and Santosh, under Section 302 IPC.

After the investigation, a charge-sheet was presented and the trial

commenced before the District & Sessions Judge, Jodhpur. The

learned Trial Court acquitted the accused-respondents of the charge

under Section 302 of IPC vide judgement dated 09.06.1993.

Aggrieved by the said judgment the present appeal was preferred.

11. This Court observes that the case of the appellant- State hinges

upon the testimony of two eye-witnesses. However, the respondents

have contended that the said witnesses are interested witnesses.

Therefore, it is pertinent to reflect upon the law with regards to the

interested witnesses.

11.1. In Dalbir Kaur & Ors. vs. State of Punjab, (1976) 4 SCC

158, it was held that the term "interested" viz-a-viz a witness,

[2025:RJ-JD:20357-DB] (9 of 16) [CRLA-516/1993]

envisages that the witness must have a direct interest in having the

accused convicted for some hostility, enmity, or animus. Furthermore,

it was observed that a close relative who is a natural witness cannot

be regarded as an interested witness.

11.2. This Court observes that in the present case, the two eye-

witnesses cannot be said to be interested, as the incident occurred in

the close vicinity where the two eye-witnesses lived. Thus, the

possibility of them being natural witnesses cannot be ruled out.

12. This Court, however, observes that there were material

contradictions and discrepancies in the testimonies of the prosecution

witnesses, including the two eye-witnesses. Moreover, there were

also contradictions with respect to the testimonies and the other

evidence on record including the Post Mortem Report (Ex.P. 30) and

Naksha Mauka (Ex.P.18) such as:

a) Ramlal (PW.2) claimed that after the accused-respondents

fled, he went to the police station to inform the police.

Meanwhile, Sita (PW.14) claims that Ramlal (PW.2) rode a

bicycle to report the incident to the police, which runs

contrary to the previous statement.

b) In his testimony, Pukhraj (PW.1) claimed that Chunnilal

(PW.24) called the police when he arrived at the scene of the

incident. The police then arrived and transported Santosh

(who had passed away) to the hospital, although Chetandas's

(PW.24) testimony implies that the deceased's body had

already been taken, before their arrival, by the police.

c) According to Pukhraj's (PW.1) testimony, the police were

notified via telephone, whereas Ramlal (PW.2) said that after

[2025:RJ-JD:20357-DB] (10 of 16) [CRLA-516/1993]

the accused-respondents fled, he went to the police station to

notify the authorities. Additionally, Sita (PW.14) has reported

that Ramlal (PW.2) called the police station before going to

the police station. Finally, regarding the reported occurrence,

the S.H.O. (PW.26) has denied having any telephonic

conversation.

d) The alleged event was reported around 10:30 p.m.,

according to the police diary (Ex.D.2). However, the S.H.O.

states that the FIR was not filed because Ramlal (PW.2) told

them that the beating was still ongoing, which is why the

police arrived at the scene without filing the FIR. However,

Ramlal (PW.2) stated in his examination-in-chief that he went

to the police station after the accused-respondents fled from

the scene of incident in question. Additionally, Ramlal (PW.2)

claimed to have filed the FIR the following day, on

11.11.1992, despite the fact that the FIR was registered on

10.11.1992.

e) Ramlal (PW.2) claimed that there was no lighting apparatus

at the scene of the incident, contradicting Sita (PW.14) and

Pukhraj (PW.1) stating that there was light. Additionally,

according to Naksha Mauka (Ex.P. 18), there was no

indication that there was light at the scene of the occurrence.

f) Sita (PW.14) claimed that the incident took place in front of

the home of accused-respondent Vishnu, in complete contrast

Ramlal (PW.2) claimed that the alleged event had occurred in

front of Bhanwarlal's house (PW.4). The houses of Bhanwarlal

(PW.4) and the accused-respondent Vishnu, however, do not

[2025:RJ-JD:20357-DB] (11 of 16) [CRLA-516/1993]

face each other according to the Naksha Mauka (Ex.P.18),

which leads to a difference regarding the precise location of

the occurrence.

g) According to Sita (PW.14), Ramlal (PW.2) and her husband

Chetandas (PW.15) arrived at the scene of the incident after

accused-respondent Vishnu used the axe to injure the

deceased. However, Ramlal (PW.2) testified that accused-

respondent Vishnu had injured the deceased's right leg, hand,

and back with an axe. However, The Post Mortem Report

(Ex.P.30) states that only three injuries were brought on by a

sharp object, hence there is no evidence to support the claims

made by Sita (PW.14), Ramlal (PW.2), and the Post-Mortem

Report (Ex.P.30) in this respect. Additionally, according to

Ramlal (PW.2), the deceased-Santosh's right leg and back

were injured by the axe; nevertheless, the Post Mortem

Report (Ex.P. 30) shows that nothing was awry with those

parts of his body.

h) According to Ramlal (PW.2), Bhanwarlal (PW.4) only got

there when he yelled; however, Sita (PW.14) said that

Bhanwarlal (PW.4) came at the scene of the incident after

being asked by the police.

i) According to Pukhaj (PW.1), Bhanwarlal (PW.4) was near

Santosh's lifeless corpse when he got at the scene of the

incident. Ramlal (PW.2) claimed that Bhanwarlal (PW.4) only

showed up when he shouted.

j) In her cross-examination, Sita (PW.14) made it quite

evident that her husband Chetandas (PW.15) and Ramlal

[2025:RJ-JD:20357-DB] (12 of 16) [CRLA-516/1993]

(PW.2) arrived at the scene of incident when she made hue

and cry. That being said, neither Ramlal (PW.2) nor Chetandas

(PW.15) have testified that they saw the incident or that

Chetandas was with him.

13. This Court further observes that keeping in view the

aforementioned contradictions within the testimonies stated above

with respect to, the individual who registered the FIR, the mode and

time of registration, the place of incident, time of incident, person(s)

present at the place of incident, during the occurrence thereof, and

the account of injuries on the body of the deceased, are significant in

nature and not minor discrepancies which can be brushed aside so

that the testimonies can be taken into consideration.

14. This Court is conscious of the judgment of the Hon'ble Apex

Court in the case of Krishnegowda & Ors. vs. The State of

Karnataka, (2017) 13 SCC 98, wherein it was observed that

"witnesses are the eyes and ears of justice" and when the evidence of

the witnesses is filled with discrepancies, contradictions and

improbable versions, then an irresistible conclusion is that the

evidence of such witnesses cannot become a basis to convict the

accused and it is a duty of the Court to consider the trustworthiness

of the evidence on record.

15. This Court also observes that the prosecution story was not in

consonance with the testimonies of the witnesses and the evidence

produced during the trial, in order to prove a case beyond all

reasonable doubts against the accused-respondents and there is also

a possible view of innocence of the accused-respondents.

[2025:RJ-JD:20357-DB] (13 of 16) [CRLA-516/1993]

16. At this juncture, this Court deems it appropriate to reproduce

the relevant portions of the judgments rendered by the Hon'ble Apex

Court in the cases of Mallappa & Ors. Vs. State of Karnataka

(Criminal Appeal No. 1162/2011, decided on 12.02.2024) and

Babu Sahebagouda Rudragoudar and Ors. Vs. State of

Karnataka (Criminal Appeal No. 985/2010, decided on

19.04.2024), as hereunder-:

Mallappa & Ors. (Supra):

"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:

(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive inclusive of all evidence, oral or documentary;

(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;

(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."

Babu Sahebagouda Rudragoudar and Ors. (Supra):

"38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka (2023) 9 SCC 581 this Court summarized the

[2025:RJ-JD:20357-DB] (14 of 16) [CRLA-516/1993]

principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:

"8.1. The acquittal of the accused further strengthens the presumption of innocence;

8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."

39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:

(a) That the judgment of acquittal suffers from patent perversity;

(b) That the same is based on a misreading/omission to consider material evidence on record;

(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."

17. This Court further observes that the learned Trial Court passed

the impugned judgment of acquittal of the accused-respondents

under Section 302 IPC,1860 which in the given circumstances, is

justified in law, because as per the settled principles of law as laid

down by the Hon'ble Apex Court in the aforementioned judgments, to

the effect that the judgment of the Trial Court can be reversed by the

[2025:RJ-JD:20357-DB] (15 of 16) [CRLA-516/1993]

Appellate Court only when it demonstrates an illegality, perversity or

error of law or fact in arriving at such decision; but in the present

case, the learned Trial Court, before passing the impugned judgment

had examined each and every witnesses at a considerable length and

duly analysed the documents produced before it, coupled with

examination of the oral as well as documentary evidence, and thus,

the impugned judgment suffers from no perversity or error of law or

fact, so as to warrant any interference by this Court in the instant

appeal.

18. This Court also observes that the scope of interference in the

acquittal order passed by the learned Trial Court is very limited, and if

the impugned judgment of the learned Trial Court demonstrates a

legally plausible view, mere possibility of a contrary view shall not

justify the reversal of acquittal as held by the Hon'ble Apex Court in

the aforementioned judgment, and thus, on that count also, the

impugned judgment deserves no interference by this Court in the

instant appeal.

19. Thus, in light of the aforesaid observations and looking into the

factual matrix of the present case as well as in light of the

aforementioned precedent laws, this Court does not find it a fit case

so as to warrant any interference in the impugned judgment of

acquittal passed by the learned Trial Court.

20. Consequently, the present appeal is dismissed.

20.1. Keeping in view the provision of Section 437-A Cr.P.C./481 of

BNSS, each of the accused-respondents are directed to furnish a

personal bond in a sum of Rs. 25,000/- and a surety bond each in the

like amount, before the learned Trial Court, which shall be made

[2025:RJ-JD:20357-DB] (16 of 16) [CRLA-516/1993]

effective for a period of six months, to the effect that in the event of

filing of Special Leave Petition against this judgment or for grant of

leave, the accused-respondents, on receipt of notice thereof, shall

appear before the Hon'ble Supreme Court as soon as they would be

called upon to do so.

20.2. All pending applications stand disposed of. Record of the

learned Trial Court be sent back forthwith.

(SANDEEP SHAH),J (DR.PUSHPENDRA SINGH BHATI),J

131-SKant/-

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