Rajasthan High Court - Jodhpur

State vs Thaneshwar And Anr ... on 17 April, 2025

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  D.B. Criminal Appeal No. 889/2001

State of Rajasthan

                                                                       ----Appellant

                                       Versus

1. Thaneshwar S/o Shankar Lal Khat (Appeal abated qua him)

2. Mani Lal S/o Shankar Lal Khat

Both resident of Navadhara (Banswara, P.S. Gadhi)

                                                                    ----Respondents



For Appellant(s)             :     Mr. Deepak Choudhary, GA-cum-AAG
                                   assisted by Mr. Ramesh Dewasi, PP
                                   Mr. Mridul Jain.
For Respondent(s)            :     Mr. Jubin Mehta for
                                   Mr. P.R. Mehta.


     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE SANDEEP SHAH Order 17/04/2025 Per Hon'ble Mr. Sandeep Shah, J :

1. The present appeal under Section 378 of Cr.P.C. has been

filed by the State of Rajasthan being aggrieved against the order

dated 19.04.2001 passed by learned Additional Sessions Judge,

Banswara in Sessions Case No.94/98, whereby learned trial Court

has acquitted the accused-respondents- Thaneshwar & Mani Lal

for offences punishable under Section 302/34 of IPC.

2. By a separate order dated 17.04.2025, based on the report

submitted by the learned Government Advocate-cum-Additional

Advocate General, the Court was informed that accused-

respondent No.1-Thaneshwar, has passed away. Consequently, the

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appeal against him was abated. However, the case was heard on

merits with respect to respondent No.2, Mani Lal.

Facts of the case:

3. On 17.04.1997, an information was submitted to the police

officials at Police Station Gadhi, District Banswara, by one Gamira.

He reported that his younger brother, Ram Lal, was working as a

Principal at the Government School, Bassi Ahada, and used to

commute daily from his residence to the school. On the said

morning, at around 4:30 AM, Ram Lal had left his house on foot to

go to school. However, at around 5:45 AM, Bapulal Adiwasi and

others came to Gamira's house and informed him that Ram Lal had

been murdered. They stated that his body was found lying behind

Bapulal's house, with blood flowing from his body, and requested

him to come to the spot. It was further stated by Gamira that he,

along with his brother Himmatlal and uncle Kanji, went to the site.

There, they found Ram Lal lying on the ground, with blood oozing

from his mouth, head, hands, and face indicating that he had been

assaulted with a sharp-edged weapon.

4. It was further stated that when they asked Ram Lal about who

was responsible for the attack, Ram Lal raised two fingers and

uttered the words "Thana, Thana.". Meanwhile, Sh. Lemba, son of

Lalji, and Kanhaiya Lal, son of Kalji, arrived at the site. They

informed that between 4:30 and 5:00 AM, while they were on their

way to Arthuna to get a thrashing machine, they had seen Ram Lal

walking about 100 yards ahead of them. It was further stated that

they heard Ramlal shouting, upon which both of them reached the

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site and saw Thaneshwar and Mani Lal assaulting Ramlal with a

sword (talwar) and a stick (lath), respectively. It was further

submitted that Thaneshwar was holding the sword, and Mani Lal was

holding the stick. Upon reaching the scene, Lemba and Kanaiyalal

asked Thaneshwar and Mani Lal why they were hitting Ramlal. Upon

hearing this, Thaneshwar dropped the sword, and both attackers

fled the scene. Thaneshwar even left his slipper behind. The sword

had blood on it. They chased Thaneshwar and Mani Lal but couldn't

catch them. Thereafter, while they were at the scene, the neighbors

arrived, and a jeep was subsequently called from Arthuna. Ram Lal

was taken to Pratapur Hospital for treatment, where he sucummed

to the injuries. It was further stated that at the site, a sword and a

slipper were found, which were taken care of by the villagers. Thus,

it was stated that Ram Lal was murdered by Thaneshwar and Mani

Lal, and therefore appropriate action may be taken.

5. Based upon the aforementioned FIR, the police initiated an

investigation. During the course of the investigation, they recovered

a sword and a slipper from the site in question, prepared a

panchnama for the body of the deceased, and prepared a site plan

of the area where the murder occurred. The accused-respondents,

Thaneshwar and Mani Lal, were arrested. Based on the information

provided by Thaneshwar under Section 27 of the Indian Evidence

Act, a bloodstained trouser he had worn was recovered. The post-

mortem report was obtained. The FSL (Forensic Science Laboratory)

report was also obtained regarding the sword, blood-stained soil,

clothes, and the slippers. After completing the investigation, the

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police filed a challan against both accused for offences punishable

under Section 302/34 of the Indian Penal Code (IPC).

6. The prosecution subsequently examined 13 witnesses to

support their case and also exhibited 17 documents. The accused

presented five documents to support their defense. During the

examination under Section 313 of the Criminal Procedure Code

(Cr.P.C.), the accused-respondents denied committing any offence.

7. The trial court, after considering the entire evidence, passed

the order on 19.04.2001 acquitting both accused. The trial court

held that the prosecution failed to prove the case against the

accused and found significant contradictions in the statements of the

witnesses.

8. Aggrieved by the above order, the present appeal has been

filed by the appellant-State.

Argument on behalf of the appellant- State:

9. Learned GA-cum-AAG submitted that this was a case where

the offence was proven based on the statements of two

eyewitnesses, namely PW-2 Lemba and PW-3 Kanhaiya Lal, and that

there were no inconsistencies in their testimonies. Therefore, their

statements were sufficient to convict the accused-respondents.

10. Learned AAG further submitted that the statements of the

eyewitnesses were corroborated by other witnesses who had

reached the site. In their presence, the deceased had, while pointing

two fingers, stated that the incident was caused by Thana.

11. Furthermore, the sword, which was the weapon of offence, and

the slipper worn by Thaneshwar were recovered at the site. The FSL

report also clearly indicated that both the trousers worn by the

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deceased and the one worn by the accused, Thaneshwar, contained

blood of the same group, i.e., A+. Additionally, the sword and

slipper were both found to have human blood on them. The motive

was also clear that the accused, Thaneshwar, forcibly wanted to

marry the daughter of the deceased, Ram Lal.

12. Additionally, there was a dispute between the parties regarding

land, which provided sufficient grounds for the murder. These

evidences clearly established that the accused-respondents

committed the crime, yet this aspect of the matter was completely

been overlooked by the learned trial court while passing the

judgment dated 19.04.2001.

Argument on behalf of respondent-accused:

13. On the other hand, learned counsel for the respondent has

supported the judgment passed by the trial court, stating that the

court below rightly held that the statements of PW-2 and PW-3, i.e.,

Lemba and Kanhaiyalal, the alleged eyewitnesses, were inconsistent

and their presence at the site was not established. It was further

submitted that PW-5, Dr. Gangadhar Vyas, who conducted the post-

mortem and prepared the post-mortem report (ExhP.8), clarified

that no injury was caused by a lathi, thereby rendering the

statements of the alleged eyewitnesses unreliable. Moreover, the

improvements made by both alleged witnesses cast doubt on their

versions, as there were clearly inconsistencies in their statements

before the police, i.e., D1 & D2, which were exhibited by the defense

and the statement made during the course of trial. It has further

been stated that, even assuming the entire evidence is presumed to

be correct, the guilt is only attributable to the accused, Thaneshwar,

and not to Mani Lal. The appeal has already been abated against

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Thaneshwar, and therefore, there is no reason to hold the accused,

Mani Lal, guilty in the present case. It has also been argued that no

recovery of a lathi or any other article was made from respondent

No.2, Mani Lal, and further, no injury has been attributed to him in

the post-mortem report. Therefore, the trial court was justified in

acquitting the accused respondents.

Analysis and reasoning:

14. Having considered the arguments raised by learned counsel for

both parties and after perusing the record, we find that the trial

court was justified in disbelieving the statements of the alleged

eyewitnesses, PW-2 Lemba and PW-3 Kanhaiyalal, as there are

significant contradictions in their testimonies and their presence at

the site has not been adequately proven.

15. In paragraphs 9 and 10 of the order impugned the trial court

has only minutely considered the evidence of the witnesses. Their

presence at the scene has rightly been disbelieved, as there are

conflicting versions from both witnesses regarding the location they

were going toward and also the direction in which they were

moving. The site plan (ExhP.-3) prepared by the prosecution does

not indicate the presence of two witnesses as the site the accused

allegedly murdered the deceased. It also fails to show the correct

route as to from east to south or towards village Arthuna on the

west side of the site, which was a specific assertion made by both

alleged eyewitnesses, PW-2 Lemba and PW-3 Kanhaiyalal.

16. The prosecution's story is not established, as both

eyewitnesses PW-2 Lemba and PW-3 Kanhaiyalal specifically stated

that the deceased was assaulted with a lathi by the accused, Mani

Lal. However, PW-5 Dr. Gangadhar Vyas, who conducted the

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postmortem and prepared the postmortem report, clearly stated

that none of the injuries mentioned were caused by a lathi; instead,

all injuries were inflicted by a sharp-edged weapon. This clearly

creates a contradiction between the expert opinion of the doctor

connecting the crime with a sharp edged weapon and eye-witnesses

connecting the crime with a 'lathi' and both the versions cannot co-

exist.

17. Further, even if the statements of PW-2 and PW-3 are accepted

in their entirety, then also, the presence of Mani Lal is not proved

and whereas, appeal against Thaneshwar is already abated.

18. Furthermore, there are discrepancies in the timeline provided

by both eyewitnesses, PW-2 Lemba and PW-3 Kanhaiyalal. PW-2

Lemba states that they left at around 4:30 AM, whereas PW-3

Kanhaiyalal mentions they left closer to 5:00 AM. Not only this, a

bare perusal of the statement of PW-3 reveals that when they

reached the site, they could only see the back of the accused.

Furthermore, their return to the site nearly an hour after the

incident itself impeaches their testimony and casts a shadow of

doubt over the prosecution's case. Admittedly, they stated that they

ran after the accused for approximately half a kilometer before

returning to the site. As per their own version, they reached the site

at 5:00 AM and, after chasing the accused, returned around 6:00

AM. Needless to say, the one-hour duration to cover a short distance

of merely half a kilometer strongly suggests that they were not

present at the site and, in fact, were not eyewitnesses as the

prosecution has attempted to portray. Logically, the entire sequence

could not have taken more than 15 minutes. Their unexplained

absence for a full hour, coupled with the contradictions in their

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statements, clearly indicates that the learned Trial Court was

justified in not placing reliance on their testimony.

19. This, coupled with the fact that the initial statements of the

witnesses before the police officials under Section 161 of Cr.P.C.

(Exh.D-1 & Exh.D-2) do not mention that 7-8 blows were given by

the accused, nor any reference to the act of picking up stones to

threaten the accused, was made, further weakens the prosecution's

case. Furthermore, the alleged motive appears to have been

introduced later by both witnesses, which further casts doubt on

their presence at the scene and indicates substantial improvements

were made in their statements at a subsequent stage.

20. An important aspect worth consideration is that PW-3

Kanhaiyalal admitted that when they raised a hue and cry and

chased the accused, several timber workers were present nearby

and witnessed the incident. He even stated that these persons were

from village Dhanewa and frequently visited their village. However,

none of those individuals were examined by the prosecution, which

is a crucial omission. The non-examination of independent witnesses

further undermines the credibility of PW-2 and PW-3, and throws

their version of events into serious doubt.

21. Moreover, the non-recovery of the lathi or any other article

from accused Mani Lal, coupled with the fact that no injury on the

body of the deceased has been attributed to him as the postmortem

report confirms no lathi-related injuries is a relevant consideration

taken into account by the learned trial Court. This has rightly been

appreciated by the learned trial Court while acquitting the accused

persons.

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22. More so, the points for consideration as far as hearing of

appeals from order of acquittal and consideration of the same by

appellate Court has been crystallized by the Hon'ble Supreme Court,

in the case of H.D. Sundara & Ors. v. State of Karnataka,

reported in (2023) 9 SCC 581 and summarized the legal position

as under:

8. In this appeal, we are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised 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 re-appreciate the oral and documentary evidence;

8.3 The Appellate Court, while deciding an appeal against acquittal, after re-appreciating 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."

23. Taking guidance from the above-mentioned judgment, it is clear

that the appellant-State has failed to establish that the judgment of

acquittal suffers from any perversity or is based on a misreading of the

material available on record. Furthermore, this is not a case where no

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other reasonable view is possible. In fact, in the present case, the view

pointing towards the guilt of the accused is weak and improbable,

whereas the alternative view favouring the accused is much stronger

and more plausible.

24. Thus, upon considering the entire record, we find that there

is no infirmity in the judgment passed by the learned Trial Court

dated 19.04.2001. Accordingly, the order of acquittal is upheld,