Rajasthan High Court - Jodhpur
State vs Himala on 28 May, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:24849-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 888/2001
State Of Rajasthan
----Appellant
Versus
1. Homala S/o Roda Vadera R/o Kada
2. Shanker S/o Roda Vadera R/o Kada
3. Vasa S/o Galla Gameti R/o Vilavas
4. Bhanwariya S/o Ambave Gameti R/o Kada, Police Station
Ogana Disst: Udaipur.
----Respondents
For Appellant(s) : Mr. C.S. Ojha, PP
For Respondent(s) : Mr. Anirudh Vyas
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE SUNIL BENIWAL
Judgment
Reserved on : 21/05/2025
Pronounced on : 28/05/2025
(Per Sunil Beniwal, J.)
1. The instant appeal has been preferred on behalf of the
appellant - State of Rajasthan under Section 378 CrPC assailing
the judgment dated 18.08.2001 passed by the learned Additional
Sessions Judge (Fast Track), Udaipur in Sessions Case
No.03/2001, whereby the learned trial Court acquitted
respondents Nos. 1 and 2 for the offences under Sections 302/34,
458, 460 and 397 of the Indian Penal Code (IPC), while convicting
them under Section 323/34 IPC. The respondents Nos.3 and 4
[2025:RJ-JD:24849-DB] (2 of 14) [CRLA-888/2001]
were acquitted for the offences under Sections 302/34 and 323/34
IPC.
2. During the pendency of the present appeal, Homala
(respondent No. 1) and Vasa (respondent No.3) expired and the
appeal qua them stood abated.
3. As per the prosecution, the incident in question occurred on
25.11.1999 at approximately 7:00 PM. The first informant, Natha
Gameti (PW-1), Deva (PW-2), Nathi (PW-3), Ramli (PW-5), Virma
(PW-6), Lalu Ram were sitting with him at his residence when
respondents Nos.1 and 2, namely Homala and Shanker, attacked
Lalu Ram and Ors. Respondent No.1, Homala, was armed with an
axe and inflicted fatal blows upon Lalu Ram, who succumbed to
the injuries on the spot. The prosecution further alleged that
respondents No.3 and 4, namely Vasa and Bhanwariya, had
accompanied the assailants but they were standing outside the
house during the incident. The prosecution has asserted that Lalu
Ram succumbed to the fatal injuries inflicted by the present
respondents. It was also the case of the prosecution, as well as
the first informant, that the incident occurred in the presence of
Heera, Deva, and Virma.
4. Learned counsel for the State submitted that the learned trial
Court committed a grave error in acquitting the present
respondents for the offence under Section 302/34 of the Indian
Penal Code, as well as in relation to the other offences with which
they were charged. He contended that the acquittal was a result of
improper appreciation of the evidence, particularly in light of the
strong testimonies of the eye-witnesses. Learned counsel further
[2025:RJ-JD:24849-DB] (3 of 14) [CRLA-888/2001]
submitted that the incident occurred in the presence of the first
informant, Natha Gameti (PW-1) and was additionally witnessed
by three witnesses, namely Deva, Heera and Virma. Despite the
statements of the direct eyewitnesses, the learned trial Court
chose not to believe their version of events, thereby failing to
properly evaluate the credibility of the evidence crucial to the
prosecution story.
5. Learned counsel for the State submitted that the prosecution
had produced as many as 20 witnesses and upon a careful
examination of their testimonies, it is abundantly clear that the
present accused-respondents inflicted numerous injuries upon the
deceased, Lalu Ram and that those injuries ultimately led to his
death. Learned counsel emphasized that the testimony of these
witnesses establishes beyond a shadow of a doubt that the
accused were directly responsible for the fatal assault.
Furthermore, it was submitted that although the learned Trial
Court convicted respondents Nos.1 and 2, namely, Homala and
Shanker under Section 323/34 IPC for causing hurt, it erred in
acquitting them for the offence under Section 302/34 IPC, which
pertains to murder. The learned counsel for the State argued that
once the learned trial Court had concluded that the two
respondents were guilty under Section 323/34 IPC, this was
sufficient evidence to establish their presence at the scene and
involvement in the incident. The fact that these two respondents
caused the injuries to Lalu Ram, which ultimately resulted in his
death, was an undeniable conclusion that should have led to their
conviction under Section 302/34 IPC as well. It was also argued
[2025:RJ-JD:24849-DB] (4 of 14) [CRLA-888/2001]
that injuries caused to Natha Gameti (PW-1), Deva (PW-2), Nathi
(PW-3), Ramli (PW-5), Virma (PW-6) shows their presence at the
time of incident, yet trial Court has concluded that prosecution
failed to establish its case beyond reasonable doubt so as to
convict accused U/s 302/34.
6. Per contra, learned counsel for the respondents submitted
that the learned trial Court was fully justified in acquitting the
respondents for the offence under Section 302/34 IPC. Learned
counsel argued that the prosecution had failed to prove its case
beyond a reasonable doubt. It was contended that the evidence
produced by the prosecution, including the testimonies of the eye-
witnesses, was unreliable and inconsistent, thus failing to establish
the involvement of the respondents in the murder of the
deceased, Lalu Ram. Learned counsel further submitted that the
trial Court rightly in acquitted the respondents, as there was
insufficient evidence to sustain the charge of murder under
Section 302/34 IPC.
7. Learned counsel for the respondents while elaborating his
arguments submitted that the prosecution completely failed to
prove its case regarding the incident that occurred on 25.11.1999,
particularly with respect to the involvement of the present
respondents. It was pointed out that two crucial eyewitnesses,
Deva (PW-2) and Heera (PW-7), turned hostile during the trial.
Their testimonies, which were initially expected to corroborate the
prosecution's story, were rendered unreliable as both witnesses
denied their prior statements and contradicted the assertions
made in the FIR. Learned counsel argued that due to the adverse
[2025:RJ-JD:24849-DB] (5 of 14) [CRLA-888/2001]
testimony of these witnesses, the prosecution story has suffered a
serious setback and thus, the involvement of the respondents in
the alleged crime could not be conclusively established.
8. Learned counsel for the respondents further submitted that
the testimony of Natha Gameti (PW-1), who is not only the first
informant but also an eyewitness to the incident, fails to support
the prosecution's story. Natha Gameti (PW-1), in his statement,
deposed that Homala and Shanker inflicted injuries on Lalu Ram
using an axe and that Lalu Ram was stabbed in the neck by the
two accused persons. According to Natha Gameti (PW-1), the
injuries inflicted by the axe resulted in Lalu Ram's death on the
spot. However, learned counsel pointed out that this version is
inconsistent with the post mortem report (Ex.P-17), as no neck
injury was mentioned so also the Investigating Officer during his
cross examination denied injuries on neck. Given this discrepancy,
learned counsel argued that Natha's version of events is unreliable
and not trustworthy. If the statement of the first informant, who
was present at the scene, cannot be relied upon, then the
credibility of the other eyewitnesses and the veracity of
prosecution's story as a whole becomes questionable.
9. In view of the submissions made above, learned counsel for
the respondents submitted that the present appeal is devoid of
merit and deserves to be dismissed. Learned counsel contended
that the prosecution has failed to prove its case beyond a
reasonable doubt, and the trial court's acquittal of the respondents
of charge under Section 302/34 was based on a proper evaluation
of the evidence. Furthermore, the discrepancies in the testimony
[2025:RJ-JD:24849-DB] (6 of 14) [CRLA-888/2001]
of key witnesses, including the first informant and eyewitnesses,
have significantly undermined the credibility of the prosecution's
case. Learned counsel, therefore, urged the Court to uphold the
judgment of acquittal and dismiss the present appeal.
10. We have heard learned counsel for the parties and perused
the material available on record.
11. On close scrutiny of the statement of PW-1, Natha Gameti,
who is both the first informant and an eyewitness to the incident
dated 25.11.1999, it emerges that he deposed that accused
Homala and Shanker were carrying axes in their hands at the time
of the incident, while accused Vasa and Bhanwariya were standing
outside his house. PW-1 Natha Gameti further stated that Homala
and Shanker inflicted injuries on the neck of the deceased, Lalu
Ram, and that it was on account of these injuries that Lalu Ram
died on the spot. This version, as stated by the first informant,
forms the central part of the prosecution story and needs to be
weighed with the medical and investigative evidence on record to
determine its credibility and consistency.
12. PW-1 Natha during his cross-examination admitted that the
incident occurred in complete darkness and that there was no
source of light in the village at the relevant time. He further
conceded that he suffers from low vision, which raises significant
doubt about his ability to correctly identify the assailants or
observe the incident in detail. Natha Gameti (PW-1) also stated
that both Homala and Shanker inflicted axe injuries upon the
deceased, Lalu Ram. Notably, Natha Gameti claimed that the
[2025:RJ-JD:24849-DB] (7 of 14) [CRLA-888/2001]
incident occurred in the presence of Deva (PW-2) and Heera
(PW-7). However, upon perusal of the statements of PW-2 and
PW-7, it is evident that they did not support the version of PW-1
and their testimonies clearly suggest that they were not present at
the scene of the incident and appear to have been introduced by
the prosecution merely to strengthen its case. These material
contradictions and the fact that two of the alleged eyewitnesses
turned hostile, cast serious doubt on the credibility of the
testimony of PW-1, Natha Gameti.
13. PW-1 Natha Gameti, in his examination-in-chief, stated that
axe injuries were inflicted by Homala and Shanker on the neck of
the deceased, Lalu Ram. However, the Investigating Officer in his
cross examination denied injuries on neck. Furthermore, the
narrative of PW-1 appears to be contradicted by the medical
evidence on record. The doctor who conducted the post-mortem
examination, PW-19, have not recorded any injury on or around
the neck of the deceased. Furthermore, the panchnama also
makes no mention of any injuries on the neck. These material
inconsistencies between the ocular version of PW-1 Natha Gameti
and the Investigating Officer, on one hand, and the medical
evidence on the other, seriously undermine the reliability and
trustworthiness of the prosecution's version. The contradiction
raises a grave doubt about the credibility of both the first
informant and the Investigating Officer, thereby weakening the
core foundation of the prosecution's story.
14. The prosecution claims to have recovered axe ( कुल्हाड़ी), at the
instance of accused Homala and Shanker in the presence of two
[2025:RJ-JD:24849-DB] (8 of 14) [CRLA-888/2001]
recovery witnesses Rodiya (PW-11) and Laxmanlal (PW-12).
However, a perusal of the statements of these witnesses reveals
that both have not supported the prosecution's story regarding the
recovery of weapon.
14.1 PW-11 Rodiya, while acknowledging that his signature
appears on the recovery panchnama, categorically stated that the
weapon was not sealed in his presence and further denied that
any recovery was effected from the residences of Shanker or
Bhanwariya. Consequently, he was declared hostile by the
prosecution.
14.2 Similarly, PW-12 Laxmanlal also did not support the
prosecution's story. He deposed that he was unaware of whether
the accused were present at the time of recovery and refused to
identify the accused persons in Court. He also denied having
knowledge about whether any weapon was recovered from the
accused. These significant contradictions and the failure of both
recovery witnesses to support the prosecution's story cast serious
doubt on the credibility and legality of the alleged recovery and
further weaken the prosecution's case.
15. PW-13 Rama, who was cited as a witness to the site plan
prepared during investigation, did not support the prosecution's
story and specifically stated that he had not seen the site plan.
Consequently, he was declared hostile. Similarly, PW-17, who was
produced as a witness to the alleged recovery of the axe at the
instance of accused Vasa, also turned hostile and did not support
the prosecution's version. PW-18 Joralal, in whose presence the
prosecution claimed the axe was recovered from the house of
Vasa, likewise turned hostile during trial and denied any such
[2025:RJ-JD:24849-DB] (9 of 14) [CRLA-888/2001]
recovery. These developments significantly weaken the
prosecution's recovery narrative.
16. Furthermore, the prosecution's case is not even fully
supported by the facts as narrated by the first informant, PW-1
Natha Ram. In both the FIR and his examination-in-chief, Natha
Ram (PW-1) stated that accused persons Vasa and Bhanwariya
were merely standing outside the house at the time of the
incident. Nowhere does he allege that Vasa was armed or carried
any weapon. Despite this, the prosecution introduced a recovery
allegedly made from Vasa and attempted to attribute an active
role to him in the commission of the offence. This inconsistency
clearly suggests that Vasa was neither present at the time of the
incident nor involved in any manner. The introduction of Vasa into
the case appears to be an afterthought, lacking evidentiary
foundation, and undermines the credibility of the prosecution's
overall narrative. These material contradictions and hostile
witnesses cast serious doubt the presence of Vasa at the time of
incident.
17. On perusal of the post-mortem report, it is noted that the
deceased, Lalu Ram, sustained a total of 23 injuries. According to
the post-mortem findings, the cause of death was determined to
be generalized rigor mortis, which was a result of injuries to the
lungs and other vital parts of the body. The report specifically
indicates that the injuries to the lungs were fatal and led to the
death of Lalu Ram. It is noted from the post-mortem report that
injury Nos. 2 to 5, 8 to 10, and 13 to 20 were identified as
abrasions. Injury Nos. 6, 11, and 12 were described as bruises,
[2025:RJ-JD:24849-DB] (10 of 14) [CRLA-888/2001]
while injury No.7 was recorded as a swelling. Notably, injury No. 1
was a lacerated wound located near the upper lip of the deceased.
These findings, when viewed collectively, indicate that the
deceased sustained multiple blunt force injuries across different
parts of the body, consistent with a violent assault. The nature,
number, and distribution of the injuries further support the
conclusion that the deceased was subjected to a sustained
physical attack. The injuries as recorded in the post-mortem
report further indicate significant discrepancies in the version
given by Natha Gameti (PW-1), who remained the sole eyewitness
supporting the prosecution's story after the other key witnesses
turned hostile. Notably, the post-mortem report does not record
any injury on the neck of the deceased, which directly contradicts
the statement of PW-1, who alleged that axe blows were inflicted
on the neck by the accused persons. Furthermore, the post-
mortem report does not indicate the presence of any incised or
sharp-edged weapon injury such as would be expected from an
axe on any vital part of the body. Even if prosecution story is
accepted to be true then too the allegation against Homala and
Shanker under Section 302/34 cast doubt in view of the fact that
despite axe in hand of Homala and Shanker, there is no incised
wounds were found in Post Mortem Report.
18. As per the prosecution's case, the fatal injuries on Lalu Ram
were allegedly inflicted by axe blows, with both accused persons,
Homala and Shanker, stated to be armed with axes. However,
there is no specific or consistent version regarding which of the
two accused inflicted which particular injury, including injury
No.1, which was a lacerated wound near the upper lip. In the
[2025:RJ-JD:24849-DB] (11 of 14) [CRLA-888/2001]
absence of clear and unequivocal attribution of the fatal injury to a
specific accused, it becomes difficult to conclusively determine
which injury proved fatal and which accused was responsible for it.
19. We have perused the judgment passed by the learned trial
Court. Upon examination of the record, it is evident that learned
trial Court has considered the entire evidence and has given a
reasoned finding that the offence under Section 302/34 IPC is not
made out against the accused persons. We have independently
scrutinized the material on record as well as the reasoning
adopted by the trial Court. Upon such consideration, we do not
find any perversity, illegality, or material irregularity in the findings
recorded by learned trial Court which requires any interference in
the present appeal.
20. 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;
[2025:RJ-JD:24849-DB] (12 of 14) [CRLA-888/2001]
(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
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
[2025:RJ-JD:24849-DB] (13 of 14) [CRLA-888/2001]
possible and only the view consistent with the guilt of the
accused is possible from the evidence available on record."
21. This Court further observes that the learned trial Court
passed the impugned judgment of acquittal of the accused-
respondents under Section 302/34 IPC, 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 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 analyzed
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.
22. 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.
23. Thus, in light of the aforesaid observations and looking into
the factual matrix of the present case as well as in light of the
[2025:RJ-JD:24849-DB] (14 of 14) [CRLA-888/2001]
aforementioned precedent laws, this Court does not find it a fit
case warranting any interference by this Court.
24. Accordingly, the instant appeal is dismissed.
25. All pending applications, if any, stand disposed of. Record of
the learned Trial Court be sent back forthwith.
(SUNIL BENIWAL),J (DR.PUSHPENDRA SINGH BHATI),J
Ashutosh-1
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