Rajasthan High Court - Jodhpur
State vs Om Prakash And Anr. ... on 20 May, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:24346-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 1020/2011
State of Rajasthan
----Appellant
Versus
1. Om Prakash S/o Shri Bheruram, resident of House No.386,
Gali No.10, Milk Man Colony, P.S. Shastri Nagar, Jodhpur.
2. Ganpat Singh @ Dalpat Singh son of Shri Shakti Singh,
resident of Bhawar, P.S. Sedya, District-Barmer.
----Respondents
For Appellant(s) : Mr. Rajesh Bhati, PP
For Respondent(s) : Mr. J.S. Choudhary, Sr. Advocate asst.
by Mr. Pradeep Choudhary
Ms. Sampati Choudhary, Amicus Curiae
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE SUNIL BENIWAL
Order
20/05/2025
1. This Criminal Appeal under Section 378 (3) & (1) of the Code
of Criminal Procedure, 1973 has been preferred by the appellant-
State laying a challenge to the judgment of acquittal dated
24.02.2011 passed by learned Special Judge SC/ST (Prevention of
Atrocity) Cases, Jodhpur in Sessions Case No.122/2005 (State of
Rajasthan Vs. Om Prakash and Anr.), whereby the accused-Om
Prakash (respondent No.1) was acquitted from the charges under
Sections 302 & 120-B IPC, Section 3 (2)(v) of Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 under
Section 3/25 & 27 of the Indian Arms Act, 1959 and the accused-
Ganpat Singh @ Dalpat Singh (respondent No.2) was acquitted
from the charges under Sections 302 & 120-B IPC and Section
[2025:RJ-JD:24346-DB] (2 of 9) [CRLA-1020/2011]
3(2)(v) of Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989.
2. The matter pertains to an incident which had occurred in the
year 2005 and the present appeal has been pending since the year
2011.
3. Brief facts of the case as placed before this Court are that
the present case arises from an incident dated 02.08.2005,
wherein the complainant, Shri Hari Singh, alleged that his son,
Manish, was shot dead in the backdrop of an ongoing dispute with
the neighboring family of one Trilokchand Deshantri. The
complainant had already lodged a prior FIR on 01.08.2005 for an
incident regarding the same dispute, in which he himself sustained
injuries and was referred to Mathuradas Mathur Hospital, Jodhpur
for treatment. On the following day, while Hari Singh was at the
hospital accompanied by his son Manish, and others including
Ramesh Nai and Vijay (driver), Manish remained in the vehicle
while the others went inside. The complainant claimed to have
overheard a conversation between Om Prakash (younger brother
of Mahaveer) and Ganpat Singh, allegedly plotting against him.
Shortly after, he was informed that Manish had been shot dead.
4. On the basis of the aforementioned information, an FIR
bearing No.257/2005 was registered before the concerned Police
Station against the accused-respondents for the offences under
Sections 302 and 120-B of the IPC and the investigation
commenced accordingly. After investigation, a charge-sheet was
filed against the accused-respondents and the trial commenced
accordingly.
[2025:RJ-JD:24346-DB] (3 of 9) [CRLA-1020/2011]
5. During the course of trial, the prosecution produced as many
as 21 witnesses (PW-1 to PW-21) and got exhibited documents
(Exhibit P-1 to P-32), whereafter, the accused-respondents were
examined under Section 313 Cr.P.C., in which, they pleaded
innocence and 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-respondents namely
Om Prakash S/o Shri Bheruram and Ganpat Singh @ Dalpat Singh
son of Shri Shakti Singh vide the impugned judgment of acquittal
dated 24.02.2011, against which, the present appeal has been
preferred on behalf of the appellant-State.
7. Mr. Rajesh Bhati, learned Public Prosecutor representing the
appellant-State submits that the complaint was lodged by one Hari
Singh on 02.08.2005, stating that there had been an ongoing
dispute between the families of Trilokchand Deshantri and the
complainant Hari Singh for the past three months. He further
avers that in light of the said dispute, a previous FIR was
registered on 01.08.2005, wherein the complainant himself was
injured and was referred to Mathuradas Mathur Hospital, Jodhpur.
He was accompanied by his son Manish, one Ramesh Nai, and
Vijay (Driver) in a Maruti Van bearing registration number RJ-17-
C-0577.
8. Learned Public Prosecutor drew the Court's attention to the
FIR, which narrates that while Manish was waiting in the car, Vijay
and Ramesh returned to the hospital. The complainant allegedly
overheard a conversation and saw that Om Prakash (younger
brother of Mahaveer) and another person identified as Ganpat
[2025:RJ-JD:24346-DB] (4 of 9) [CRLA-1020/2011]
Singh, were speaking of sorting out the complainant. The
complainant further stated that around 04:15 PM, Ramesh and
Vijay returned and informed him that Manish had been shot and
killed.
9. Learned Public Prosecutor contends that Ramesh (PW-1)
initially supported the prosecution's story before turning hostile.
He further contends that the chain of events, including the
identification, indicates that Omprakash shot the deceased Manish
with his 'katta' while accompanied by the co-accused Ganpat
Singh (respondent No.2).
10. Learned Public Prosecutor informed that Omprakash
(respondent No.1) has already expired. Therefore, the appeal is to
be adjudicated only qua the surviving accused, Ganpat Singh
(respondent No.2).
11. Learned Public Prosecutor submits that 21 prosecution
witnesses were examined and 32 documents were exhibited by
the prosecution.
12. Learned Public Prosecutor avers that it was a case where the
chain of events clearly indicated the crime, as the animosity
between the families of Trilokchand Deshantri and Hari Singh was
evident. The present incident occurred following an FIR filed a day
before, which resulted in injury to the complainant, reflecting a
clear motive on the part of the accused to commit the crime. Om
Prakash is closely related to Trilokchand which is supported by
connecting evidence. Learned Public Prosecutor further submits
that the 'Deshi katta'/gun was recovered from Om Prakash, which
completes the chain of circumstantial evidence.
[2025:RJ-JD:24346-DB] (5 of 9) [CRLA-1020/2011]
13. Shri Jagmal Singh Choudhary, Senior Advocate, appearing on
behalf of respondents, while opposing the aforesaid submissions
made on behalf of the appellant-State, submits that the test
identification parade itself has failed because no such identification
was made in Court. He further submits that the sole eyewitness,
PW-1, has turned hostile and it is noteworthy that another
purported eyewitness, Vijay, who figures in the prosecution story,
was not examined by the prosecution.
14. Learned counsel for the respondents contends that the chain
of circumstantial evidence has been completely broken and the
prosecution has proceeded solely on the surmise that the murder
might have been caused due to prior animosity. In a crowded
place like Mathuradas Mathur Hospital, Jodhpur, the claim that a
person was shot without anyone witnessing it, is not a trustworthy
story by the prosecution. He further contends that the learned
trial Court rightly arrived at a conclusion that the prosecution
failed to prove the case beyond reasonable doubt.
15. Heard learned counsel for the parties as well as perused the
record of the case.
16. This Court observes that upon examining the case, there
appear to be elements of corrosion in the prosecution's story,
which is not supported by any credible evidence.
17. This Court also observes that the only eyewitness, PW-1,
could not support the prosecution's story and another eyewitness
Vijay was not examined. This Court finds that the complainant,
who is the father of the deceased, was hospitalized and merely
stated in the FIR that he overheard two persons talking about the
crime in question. This does not appear to be a plausible theory,
[2025:RJ-JD:24346-DB] (6 of 9) [CRLA-1020/2011]
especially considering the crowded hospital setting. The crime was
not witnessed by anyone, despite occurring in a public place. The
recovery of the weapon and the identification also do not inspire
the confidence of this Court as well.
18. Thus, in the overall factual matrix and the circumstances
surrounding the case, the impugned judgment of acquittal dated
24.02.2011 passed by the learned trial Court cannot be said to be
anything, which would call for intervention of this Court to reverse
the same.
19. 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;
[2025:RJ-JD:24346-DB] (7 of 9) [CRLA-1020/2011]
(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
possible and only the view consistent with the guilt of the
accused is possible from the evidence available on record."
20. Keeping in view the above observations, this Court further
observes that the learned Trial Court passed the impugned
judgment of acquittal of the accused-respondent No.2 under
Sections 302 and 120 of the IPC, which in the given
[2025:RJ-JD:24346-DB] (8 of 9) [CRLA-1020/2011]
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.
21. 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.
22. 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 warranting any interference by this Court.
23. Consequently, the present appeal is dismissed.
[2025:RJ-JD:24346-DB] (9 of 9) [CRLA-1020/2011]
23.1. Keeping in view the provision of Section 437-A
Cr.P.C./Section 481 of the Bharatiya Nagarik Suraksha Sanhita
(B.N.S.S.), 2023, the accused-respondent No.2 is directed to
furnish a personal bond in a sum of Rs.25,000/- and a surety bond
in the like amount, before the learned Trial Court, which shall be
made 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-respondent No.2 on receipt of
notice thereof, shall appear before the Hon'ble Supreme Court as
soon as he would be called upon to do so.
23.2. All pending applications, if any, stand disposed of. Record of
the learned Trial Court be sent back forthwith.
23.3. This Court is thankful to Ms. Sampati Choudhary, who has
rendered her assistance as Amicus Curiae on behalf of the
respondents, in the present adjudication.
(SUNIL BENIWAL),J (DR.PUSHPENDRA SINGH BHATI),J
Ashutosh/Abhishek-1
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