Rajasthan High Court - Jodhpur

Ganpat Ram vs State And Ors. (2025:Rj-Jd:10574-Db) on 21 February, 2025

[2025:RJ-JD:10574-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                  D.B. Criminal Appeal No. 357/2008

State of Rajasthan
                                                                       ----Appellant
                                        Versus
1. Durga Ram son of Shri Chhigna Ram.
2. Chhigna Ram son of Idan Ram, both resident of Bagot,
P.S. Pilwa, District Nagaur (Raj.).
                                                                    ----Respondents
                                  Connected With
            D.B. Criminal Revision Petition No. 258/2008
Ganpat Ram son of Shaitana Ram, resident of Bago, Tehsil
Parbatsar, District Nagaur.
                                                                       ----Petitioner
                                        Versus
1. State of Rajasthan
2. Durga Ram son of Chhigna Ram
3. Chhigna Ram son of Idan Ram both residents of Bagot, Police
Station Pilwa, District Nagaur.
                                                                    ----Respondents


For State                     :    Mr. Rajesh Bhati, Public Prosecutor

For Petitioner                :    Mr. K.V. Vyas, Advocate

For Respondent(s)             :    Mr. Vishal Sharma, Advocate


      HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA Judgment

21/02/2025

Mr. Rajesh Bhati, the learned Public Prosecutor states that

Durga Ram passed away during pendency of the present Acquittal

Appeal and, in support thereof, he tenders a copy of the report

dated 18th October 2024 which is taken on record.

2. The Acquittal Appeal and the Revision Petition have been

filed to challenge the judgment dated 05 th October 2007 passed in

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Sessions Case No.03/2007 (59/2006) by which Durga Ram was

acquitted of the charges framed under section 302 of the Indian

Penal Code and section 27 of the Arms Act and his father Chhigna

Ram was acquitted of the charges framed under section 302 read

with section 109 of the Indian Penal Code.

3. On the basis of a written report given by the informant

Ganpat Ram on 16th September 2006, a crime was registered vide

First Information Report No.119/2006 at Pilwa P.S. According to

the informant, Durga Ram, Chhigna Ram and Dharma Ram who

were carrying lathi and gun threatened to kill Vishram whereupon

he tried to flee away towards his house. However, Durga Ram fired

shot at Vishram when he was trying to enter into the house and

Durga Ram also fired on the informant.

4. In the trial, the prosecution examined nineteen witnesses

and one of them was Dr. Dilip Singh Charan who conducted the

postmortem examination over the dead body of Vishram and

found the following injuries on his person :-

"Internal injuries :-

1. A 0.5 x 0.5 cm. circular hole in the middle lobe of right lung, entry wound in Art. Surface, exit wound on post surface

2. A 0.5 x 0.5 cm. circular hole in the upper lobe of left lung. Entry wound on the Art. Surface and exit wound on post surface.

3. Pericardial sac full of blood.

4. A 0.6 x 0.6 cm. circular hole in the upper part of right atrium.

Entry wound on Art. Surface and exit wound on post surface."

5. The Additional Sessions Judge (Fast Track), Parbatsar

disbelieved the prosecution story and held that the charges

framed against the accused persons were not proved beyond

reasonable doubt. The trial Judge referred to the statements made

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by the prosecution witnesses in the cross-examination and held

that they were not reliable witnesses.

6. The trial Judge discussed the evidence of the prosecution

witnesses in the following manner :-

"28- tgka rd fojks/kkHkkl o folaxfr;ka xokgku ds dFkuksa esa gksus dk iz'u gSA ;g lgh gS fd rqPN fojks/kkHkkl o folaxfr;ksa dks R;kxk tkuk pkfg, fdUrq ,slh folaxfr ftlls xokg dh fo'oluh;rk gh [kRe gksrh gks rks ml folaxfr dks ek= bl vk/kkj ij vyx ugha fd;k tk ldrk fd xokg xzkeh.k {ks= ds o vui<+ gks tks pht vka[kksa ls fn[krh gS mldk lgh o.kZu de ls de xokg dks djuk pkfg, u dh xokg ,sls dFku djsa tks fdlh Hkh :i ls fo'oluh; gh ugha gksA bl laca/k esa ge vfHk;kstu }kjk izLrqr izr; {kn'khZ lkf{k;ksa ds dFkuksa dh foospuk djsaxs vkSj ;g ns[ksaxs fd D;k muds dFku fo'oluh; o lqn`<+ gSa ftuds vk/kkj ij vfHk;qDr nqxkZjke dks nks"kfl) fd;k tk ldrk gksA bl laca/k esa loZizFke ge ih- M-&12 x.kir ds dFkuksa dks ns[ksa rks ;g fjiksVZdrkZ gS rFkk blus izn'kZih&17 fjiksVZ Lo;a ds }kjk ntZ djkuk cryk;k x;k gS izn'kZih&17 esa bldk ;g dFku gS fd foJke esjs ?kj ds lkeus igq¡pk xokM+h esa tks esjs edku ds vkxs dCtk dh gS izos'k fd;k rks nqxkZjke us cUnwd ls foJke ds Qk;j dj xksyh ekjh esjs Åij nwljk Qk;j fd;k rks eSa pcwrjh ds ikl uhps cSB x;k foJke ogha fxj x;k vkSj mldh e`R;q gks xbZA bl xokg us viuh izFke lwpuk fjiksVZ esa e`rd foJke ds Åij nqxkZjke }kjk cUnwd ls Qk;j djuk cryk;k gSA izn"kZih&6 uD"kk ekSdk esa Hkh foJke dks ,Dl 1 LFkku ij o Lo;a dks ,Dl 2 LFkku ij [kM+k gksuk cryk;k gS o ,Dl 3 LFkku ls tks djhc 20 QqV dh nwjh gS ogka ls Qk;j djuk cryk;k x;k gS bl ckcr ih-M-&12 x.kirjke dk izfrijh{k.k esa ;g dFku gS fd eSaus uD"kk ekSdk izn"kZih&6 ds ckjs esa iqfyl dks dksbZ vkifRr ugha dh vkSj dk;Zokgh lgh ekurs gq, gh eSaus vaxqBk fd;kA fjiksVZ izn"kZih&17 tSls eSaus lqjs"k dks crkbZ oSls gh lqjs"kth us fy[kk Fkk vkSj Fkkus okyksa us eq>s i<+dj lquk;k mlds ckn esjk vaxqBk djok;k] ;kfu dh ;g xokg Lohdkj djrk gS fd mlus fjiksVZ izn"kZih&17 ij lqu le>dj gLrk{kj fd;s Fks o izn"kZih&6 uD"kk ekSdk ij mlus dksbZ vkifRr ugha trkbZ tcfd izn"kZih&17 esa e`rd foJke ij o ifjoknh ij vfHk;qqDr }kjk nks ckj Qk;j djuk cryk;k x;k gS rFkk uD"kk ekSdk izn"kZih&6 esa Hkh nks ckj Qk;j djus dk rF; gS ,d ckj e`rd ij o nwljk ifjoknh x.kir ij fdUrq vius dFkuksa esa x.kir ih-M-&12 bl rF; ls fcYdqy bUdkj djrk gS mldk dFku gS fd xksyh flQZ ,d gh ckj pyh Fkh eqyfteku us gekjs Åij dksbZ xksyh ugha pykbZ izn"kZih&17 dk rF; eSaus nwljk Qk;j fd;k o cSB x;k ;g eSaus ugha fy[kk;k xyr fy[kk gqvk gS vkSj uD"kk ekSdk izn"kZih&6 dk lh ls Mh Hkkx Hkh ;g xyr gksuk dgrk gS ,sls esa bl xokg ds dFku fdl rjg ls fo"oluh; ekus tkosa tks Lo;a ds }kjk fy[kkbZ xbZ fjiksVZ ls gh bUdkj djrk gS vkSj tks rF; fjiksVZ o uD"kk ekSdk esa vafdr fd;s x;s gSa mu rF;ksa dks fy[kokus ls euk djrk gS vkSj bl rjg ds xokg ds dFku tks fd bl izdj.k dk ifjoknh gS tks vius }kjk fy[kk;s x;s rF;ksa ls gh eukdj nsrk gS mlds dFku fdlh Hkh rjg ls fo"oluh; ugha ekus tk ldrs gSa rks nks Qk;j okyk rF; tks fjiksVZ esa o uD"kk ekSdk esa vafdr gS mldks Lo;a ifjoknh us gh

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vius dFkuksa esa vLohdkj dj fn;k gS rFkk vU; xokg nks Qk;j djus dh ckr ugha crykrs gSaA 29- tgka rd vU; xokgku ds dFkuksa dks ns[ksa rks vius eq[; ijh{k.k esa lHkh xokgku ;g dFku djrs gSa fd nqxkZjke us e`rd foJke ij xksyh pykbZ ysfdu blds izfrijh{k.k dks ns[ksa rks ;g izdV gksrk gS fd ;g xokg fdlh Hkh :i ls fo"oluh; ugha gSA ih-M-&4 lksgu dk ;g dFku gS fd eSa esjs ?kj dh pcwrjh ij ckgj cSBk Fkk uD"kk ekSdk ds vuqlkj bldh pcwrjh ?kVukLFky ls 10 QqV nwj gS vkSj nqxkZjke o Nhxukjke vk;s vkSj nqxkZjke us foJke ds cUnwd ls xksyh ekj nh ysfdu blds izfrijh{k.k dks ns[ksa rks tks xokg 10 QqV nwjh ij cSBk gS og ;g dgrk gS og foJke ds xksyh yxus ds 10 feuV ckn foJke ds ikl x;k Fkk ;g xokg foJke ds vkSj nqxkZjke o Nhxukjke dks Hkkxdj vkuk dgrk gS ysfdu dgha ;g ugha iwNrk fd rqe D;ksa Hkkx jgs gks ,sls esa bl xokg us ?kVuk ns[kh gks ;g fo"oluh; ugha gS D;ksafd tks ogka ,d ?kaVs ls cSBk gS rks fQj 10 feuV ds ckn nl QqV dh nwjh ij tkus dk D;k eryc gS vkSj ,sls esa bl xokg ds dFku fo"oluh; ugha gSA ih-M-&5 t;pUn tks fd e`rd dk HkkbZ gS mldk dFku gS fd ge xqokM+ esa cSBdj jksVh [kk jgs FksA bl xokg ds vuqlkj ;g xqokM+ esa jksVh [kk jgs Fks vkSj vU; yksx Hkh blds ?kj okys tks fd deyk ih-M-&6] dkS'kY;k ih-M-&7] ijes'ojh ih-M-&11 o x.kir ih-M-&12 vkfn Fks rks bldk eryc mUgksaus ?kqlrs gh e`rd eqyfteku dks ns[k fy;k ysfdu izfrijh{k.k esa ;g dgrk gS fd esjs HkkbZ ds xksyh yxus ds 5 feuV ckn igq¡pk Fkk ;kfu dh bl xokg us Hkh oDr ?kVuk xksyh pykrs eqyfteku dks ugha ns[kkA ih-M-&6 Jherh deyk Hkh eq[;k ijh{k.k esa nqxkZjke }kjk e`rd foJke ij xksyh ekjuk crykrh gS vkSj bldk izfrijh{k.k esa ;g dFku gS fd eSa rks /kekdk gqvk rc ckgj fudydj vkbZ Fkh rks ,slh ifjfLFkfr esa bl xokg us Hkh vfHk;qDr dks xksyh pykrs gq, ugha ns[kkA ih-M-&7 Jherh dkS'kY;k dk izfrijh{k.k esa ;g dFku gS fd ge Nijs esa cSBs Fks foJke ds xksyh yxus ds 5 feuV ckn ge tgka foJke iM+k Fkk ogka igq¡p x, eqyfteku Hkkx pqds FksA ih-M-&11 ijes'ojh dk Hkh ;g dFku gS fd og pkSd esa cSBs Fks 6&7 QqV nwj cSBh Fkh ysfdu og ;g Hkh dFku djrh gS mlus blds xksyh ekjdj Hkkxrs gq, ns[kk FkkA ih-M-&7 dkS'kY;k ds dFkuksa ls ;g Li"V gS fd lHkh xokgku Nijs ds vUnj cSBs Fks u dh pkSd esa D;ksafd ;g laHko Hkh ugha gS fd vklkst dh xehZ esa dksbZ [kqys pkSd esa cSBdj jksVh [kk lds vkSj dkS'kY;k ds dFkuksa ls bl rF; dks cy feyrk gS fd ;g Nijs esa cSBs Fks vkSj tc xksyh pyh mlds i'pkr gh ;s ogka vk;s vkSj dkS'kY;k Li"V dFku djrh gS fd foJke iM+k Fkk vkSj eqyfteku Hkkx pqds Fks ,slh ifjfLFkfr esa tc ;g lHkh xokgku ekSds ij lkFk vk;s gSa rks tc dkS'kY;k us eqyfteku dks ns[kk gh ugha rks vU; us dSls ns[k fy;k vkSj ;gh dkj.k gS fd ifjoknh x.kir Hkh ;g dFku djrk gS fd eqyfteku dks xksyh ekjdj Hkkxrs ns[kk Fkk tcfd fjiksVZ ;g gS fd ml ij Hkh Qk;j vfHk;qDr nqxkZjke }kjk fd;k x;k ftl rF; ls og fcYdqy bUdkj gks x;k gS vkSj ,slh ifjfLFkfr esa tc xokgku dh bl rjg dh lk{; gS ftldks fdlh Hkh rjg ls fo'oluh; ugha ekuk tk ldrk gSA"

English Translation :-

"28. As far as the contradictions and discrepancies in the statements of witnesses are concerned, it is true that trivial

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contradictions and discrepancies should be discarded but such discrepancy which destroys the credibility of the witness cannot be brushed aside merely on the ground that the witness is illiterate and from a rural area. The witness should at least give the correct description of what is visible to the eyes and not make such statements which are not credible in any manner. In this regard, we will examine the statements of the eyewitnesses produced by the prosecution and see whether their statements are credible and strong on the basis of which the accused Durgaram can be found guilty. PW 12 Ganpat is the informant, he has stated that he himself lodged the report (Exhibit P17), wherein he has stated that Vishram reached the courtyard situated in front of his house and when Vishram entered into the courtyard, Durgaram fired a gunshot on Vishram and then he fired second gunshot on him, he sat down near the platform. Vishram fell down and died. This witness has stated in his First Information Report that Durgaram fired gunshots on deceased Vishram and also on himself. In Exhibit P6, the spot map, Vishram is said to be standing at place X1 and he himself was at place X2 and he is said to have fired from place X3 which is about 20 feet away. In this regard, PW 12 Ganpatram has stated in cross-examination that he did not raise any objection to the police regarding the spot map Exhibit P6 and put his thumb impression on it considering the proceedings to be correct. He has stated that as he told about incident to Suresh, he wrote the same in Exhibit P17 and the police officials read it out to him and then got his thumb impression. Therefore, the trial court was of the opinion that this witness accepted that after hearing and understanding, he signed the report Exhibit P17 and he did not raise any objection to Exhibit P6, whereas in Exhibit P17 it is mentioned that the accused fired twice on deceased Vishram and the complainant and in the spot map Exhibit P6 also it is mentioned that the gunshot was fired twice; one on the deceased and another on the complainant Ganpat but in his statements Ganpat PW 12 completely denies this fact. He has stated that the gunshot was fired only once and the accused did not fire any bullet on them. The fact mentioned in Exhibit P17 about second fire and he sat down was not written by PW.12. It has wrongly been written. He has also stated that the parts 'C' to 'D' of the spot map Exhibit P6 is also wrong. In such a situation how can the statement of this witness, who denies the report, which was got written by himself and refuted to get the facts recorded in the

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report and spot map, can be relied upon. And the statement of such a witness who is the complainant in this case and denies the facts got written by him cannot be considered reliable in any manner. So the fact of two shots which is recorded in the report and spot map has been denied by the complainant himself in his statement and other witnesses do not speak about firing of two shots.

29. As far as the statements of other witnesses are concerned, all the witnesses in their examination-in-chief have said that Durgaram fired gun shot on deceased Vishram but in the cross- examination, it appears that this witness is not reliable in any way. PW 4 Sohan has stated that he was sitting outside on the platform of his house. According to the spot map, his platform is 10 feet away from the place of occurrence and Durgaram and Chhignaram came and Durgaram shot Vishram with his gun but upon perusing of his cross-examination, the witness, who is sitting at a distance of 10 feet, says that he went towards Vishram after ten minutes of firing gunshot on Vishram. This witness has stated about running of deceased Vishram, Durgaram and Chhignaram but nowhere he asked them why they are running. In such a case, it is not credible that this witness saw the incident because if he was sitting there for an hour, then why after ten minutes he went to place of occurrence, which was ten feet away and in such a case, the statement of this witness is not credible. PW 5 Jaichand, who is the brother of the deceased, has stated that they were sitting in the courtyard and taking meal. According to this witness, they were taking meal in the compound and other people of his family namely Kamla PW6, Kaushalya PW7, Parmeshwari PW11 and Ganpat PW12 etc. were also there, so it means that they saw the deceased and the accused as soon as they entered into the courtyard, but in cross-examination he says that he reached there five minutes after his brother was shot, which means that this witness also did not see the accused firing at the time of the incident. PW6 Smt. Kamla, in her examination-in-chief, has also stated that Durgaram fired on deceased Vishram and in her cross-examination she has stated that she had come out when gunshot was fired, so in such circumstances this witness also did not see the accused firing the shot. PW7 Smt. Kaushalya has stated in her cross-examination that she was sitting under the shed and after five minutes of firing on Vishram, she reached the place where Vishram was lying down and till then accused had fled away. PW11 Parmeshwari has

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also stated that she was sitting 6-7 feet away in the courtyard but she has also stated that she saw the accused running away after firing the gunshot. It is clear from the statements of PW7 Kaushalya that all the witnesses were sitting under the shed and not in the courtyard because it is not possible that anyone can sit in the open chawk and take meal in the hot weather of Aasoj (month of Ashwin). The statements of Kaushalya PW.7 strengthen the fact that they were sitting under the shed and they came there only after the shot was fired and Kaushalya has clearly stated that Vishram was lying down and the accused had fled away. In such a situation, when all these witnesses reached the spot together and when Kaushalya did not see the accused then how did others see the accused and this is the reason that the complainant Ganpat has also stated that he saw the accused running away after shooting, whereas in the report, it is stated that Ganpat was also fired by the accused Durgaram, which he completely denied and in such a situation when the witnesses have given such evidence, it cannot be considered reliable in any manner."

7. Mr. Rajesh Bhati, the learned Public Prosecutor and

Mr. K.V. Vyas, the learned counsel for the petitioner submit that all

the prosecution witnesses levelled specific allegation of

exhortation against Chhigna Ram and they remain unshaken in

their cross-examination. The learned Public Prosecutor further

submits that on minor inconsistencies, embellishments or

exaggerations, the testimony of prosecution witnesses cannot be

discarded and what is required to be seen is whether the

prosecution witnesses remained firm through the core of the

prosecution story. According to the prosecution, it was Durga Ram

who fired shot at Vishram.

8. As to the involvement of Chhigna Ram in the occurrence,

Mr. Vishal Sharma, the learned counsel for the respondents has

drawn attention of this Court to the First Information Report to

submit that there was no allegation of exhortation levelled against

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Chhigna Ram and such omission to attribute any overt act to him

was a relevant fact in the trial.

9. The purpose of lodging a First Information Report is to put

the police machinery in motion. This is also quite a settled

proposition in law that a First Information Report is not an

encyclopedia of all the events that had happened on the day of

occurrence and it is not necessary that all the accused persons

must be specifically named therein. However, such a situation

generally arises in cases where the role played by some of the

accused persons such as a conspirator is not known to the

informant at the time of lodging of the First Information Report.

Otherwise, the missing name of an accused in the First

Information Report who according to the prosecution played a vital

role in the entire occurrence weakens the prosecution story as to

the role played by him. In the trial, the informant could not offer

any plausible explanation as to why he did not make a mention in

the written report about the role played by Chhigna Ram.

In support of his contention, the learned counsel for the

respondents has referred to the decision in "The State of Uttar

Pradesh v. Raghuvir Singh" (Criminal Appeal No.1588 of 2015)

wherein the Hon'ble Supreme Court held as under :-

"30. The first informant claiming to be an eye-witness has not explained why he omitted to name the other two co-accused in the FIR.

31. If he claims to be an eye-witness to the incident and is said to have witnessed three persons known to him assaulting his son i.e. the deceased then what was the good reason not to name the other two accused (juvenile Accused) in the FIR. This omission assumes significance and is a relevant fact under Section 11 of the Evidence Act.

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40. The trial Judge owes a responsibility to weigh the probability of the prosecution evidence, which he has to do for arriving at the decision whether the prosecution allegations have been proved by the standard laid down in Section 3 of the Evidence Act. In so weighing the probability of the prosecution allegations, of necessity, other probabilities also appearing from the evidence brought before the Court have to be considered for comparative assessment which of the probabilities should be accepted as a fact proved. If, from the evidence, any probability consistent with the innocence of the accused is equally strong as the probability pointing to his guilt, then on the strength of the presumption of innocence in favour of the accused, it could be said that the prosecution has failed to prove its allegations. Even if the probability consistent with innocence is not equally strong with other probability of his guilt, yet the probability of innocence is such as would case a doubt, then it may be a case of reasonable doubt, the benefit of which must go to the accused. That being so, it is incumbent upon the trial Judge to consider all the probabilities that appear from the evidence before him and he cannot afford to be credulous and omit to consider reasonable

probabilities."

10. In view of the facts and circumstances in the case and the

law laid down in the judgment in "Raghuvir Singh", we have

formed an opinion that no interference is required in the present

Acquittal Appeal and the Revision Petition as well and we would

dismiss the same without entering into the evidence tendered by

the other prosecution witnesses.

11. In view of the above discussions, D.B. Criminal Appeal

No.357 of 2008 and D.B. Criminal Revision Petition No.258 of

2008 are dismissed.

(CHANDRA SHEKHAR SHARMA),J (SHREE CHANDRASHEKHAR),J

20-21 Arjun/-

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