Rajasthan High Court - Jodhpur
Shaitan Singh And Ors vs State on 16 September, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:31661-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 193/1993
State of Rajasthan
----Appellant
Versus
1. Shaitan Singh s/o Shri Khangar Singh
(Resident of Moru)
2. Guman Singh s/o Shri Bhawani Singh
(Resident of Moru)
3. Parbat Singh s/o Shri Bhopal Singh
(Resident of Zana)
4. Narpat Singh s/o Shri Khangar Singh
(Resident of Moru)
5. Ganga Singh s/o Shri Udai Singh
(Resident of Raythal)
----Respondent
Connected With
D.B. Criminal Appeal No. 80/1992
1. Shaitan Singh s/o Shri Khangar Singh
2. Guman Singh s/o Bhawani Singh
3. Narpat Singh s/o Khangar Singh
(All residents of Moru, District Jalore)
4. Ishwar Singh s/o Kesar Singh
(Resident of Jakjada, District Jalore)
5. Parbat Singh s/o Bhopal Singh
(Resident of Jana, District Jalore)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. Ramesh Dewasi, P.P.
For Respondent(s) : Mr. Harshvardhan Singh Rathore,
Amicus Curiae
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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE SUNIL BENIWAL
Judgment
Reserved on 17/07/2025
Pronounced on 16/09/2025
Per Dr. Pushpendra Singh Bhati, J:
1. The instant cross-appeals arise out of the common judgment
dated 06.03.1992 passed by the learned Sessions Judge, Jalore, in
Sessions Case Nos. 9/1990, 10/1990, and 30/1990, tried and
decided together.
1.1. D.B. Criminal Appeal No. 193/1993 has been preferred by
the State under Section 378(1) of the Code of Criminal Procedure,
1973, assailing the acquittal of the accused persons and seeking
their conviction and sentence under the relevant provisions of the
Indian Penal Code. Specifically, the State prays for conviction of:
(i) Shaitan Singh, Guman Singh, Ishwar Singh, Parbat Singh,
Narpat Singh, and Vikram Singh under Section 302/149 IPC;
(ii) Ganga Singh and Jeevan Singh under Sections 302/149, 447,
and 148 IPC; and
(iii) Shambhu Singh, Habat Singh, Hamir Singh, and Bhanwar
Singh under Section 302/149 IPC.
1.2. The connected cross-appeal, being D.B. Criminal Appeal No.
80/1992, has been preferred by the aforesaid accused persons
(who figure as respondents in D.B. Criminal Appeal No.
193/1993), challenging their conviction under Section 304 Part II
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read with Sections 149, 148, and 447 IPC, as recorded in the
impugned judgment.
1.3. Vide the impugned judgment, the learned Trial Court
convicted and sentenced the accused persons, namely, Shaitan
Singh, Guman Singh, Parbat Singh, Narpat Singh, and Ishwar
Singh as follows:
Convicted under Sentence Awarded Default Sentence
Section
Section 304 Part II 5 years Rigorous 3 months Simple
read with Section 149 Imprisonment and Imprisonment
IPC Rs .1500/- fine
Sec. 148 IPC 6 months Rigorous 15 days Simple
Imprisonment and Rs. Imprisonment
300/- fine
Sec. 447 IPC 1 months Rigorous 7 days Simple
Imprisonment and Rs. Imprisonment
200/- fine
Remaining accused persons were acquitted of the charges leveled
against them.
1.4. At the outset, it is pertinent to note that vide order dated
28.05.1993, leave to appeal was granted only against accused
Shaitan Singh, Guman Singh, Parbat Singh, Narpat Singh, and
Ishwar Singh. It is further noticed that in the cause title of D.B.
Criminal Appeal No. 193/1993, the name of accused Ganga Singh
s/o Shri Udai Singh was erroneously shown in place of accused
Ishwar Singh s/o Shri Kisar Singh. By order dated 04.07.2025,
this Court directed the learned Public Prosecutor to furnish a fresh
alive status report of all accused and amend the cause title
accordingly, which was not furnished. However, in the interest of
justice, this Court deems it appropriate to delete the name of
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Ganga Singh s/o Shri Udai Singh from the array of parties and
substitute the name of Ishwar Singh s/o Shri Kisar Singh, against
whom leave to appeal had in fact been granted.
1.5. It is also necessary to record that accused Ishwar Singh
expired on 01.09.2009 during the pendency of the proceedings,
and the appeal preferred by him stood abated vide order dated
26.02.2010. It has further been brought to the notice of this Court
by the learned Public Prosecutor, on the basis of a report dated
05.07.2025 submitted by the Station House Officer, Police Station
Aahor, District Jalore, that accused Shaitan Singh has also
expired. The said report is taken on record. Consequently, the
present adjudication is confined to the surviving accused, namely,
Narpat Singh, Guman Singh, and Parbat Singh.
1.6. Since both appeals emanate from the same judgment, they
are being considered and disposed of together by this common
judgment.
2. The matter pertains to an incident which had occurred in the
year 1989 and the present appeal has been pending since the year
1992 and 1993, respectively.
3. Brief facts of the case are that on 18.07.1989, Shri Bhanwar
Singh lodged a report (Ex.P.1) before the S.H.O., Police Station,
Ahore, stating that he, along with one Magh Singh, was sitting in
his field when the accused persons, Shaitan Singh, Narpat Singh,
Guman Singh, Vikram Singh, Ishwar Singh, Ran Singh, and Parbat
Singh, attacked Magh Singh with a common intention to cause his
death. It was alleged that Narpat Singh was armed with a kulhadi,
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Shaitan Singh with a dhariya, and the remaining accused with
lathis, with which they inflicted serious injuries upon Magh Singh.
Bhanwar Singh raised an alarm and requested the accused to
desist, upon which they fled the scene in a tractor driven by
Guman Singh, leaving Magh Singh seriously injured. Witnesses
Bagh Singh and Nen Singh arrived subsequently and corroborated
the incident. Magh Singh was taken for medical treatment, but
succumbed to his injuries. Consequently, the initial investigation
under Sections 147, 148, 149, 447, 325, 307, and 323 IPC was
converted into one under Section 302 IPC and the investigation
began accordingly.
3.1. Upon completion of the investigation, charge-sheet was filed
against the accused persons, namely, Guman Singh, Shaitan
Singh, Jeevan Singh, Ishwar Singh, Parbat Singh, Narpat Singh,
Ganga Singh and Vikram Singh under Sections 148, 302/149 and
447 IPC and against accused persons, namely Shambhu Singh,
Habat Singh, Hamir Singh and Bhanwar Singh under Section
302/149 IPC. The charges were read over and explained to the
accused persons who denied the same and claimed trial,
whereafter the trial commenced accordingly.
3.2. During the course of trial, the evidence of 19 prosecution
witnesses were recorded and 39 documents were exhibited on
behalf of the prosecution; in defence, no witness was produced
however, 05 documents were exhibited; subsequently, the accused
persons were examined under Section 313 Cr.P.C., in which they
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pleaded innocence and their false implication in the criminal case
in question.
3.3. Thereafter, upon hearing the contentions of both the parties
as well as considering the material and evidence placed on record,
the learned Trial Court, convicted and sentenced the accused
persons, as above, vide the impugned judgment of conviction and
order of sentence dated 06.03.1992, against which the present
appeals have been preferred.
4. Learned Public Prosecutor appearing on behalf of the State
contended that the impugned judgment to the extent of acquittal
is unsustainable in law and on facts, as the prosecution had
proved its case beyond all reasonable doubts. It was urged that
the trial court failed to properly appreciate the prosecution
evidence, and hence the judgment deserves to be set aside.
4.1.1 . It was submitted that the prosecution had examined four
eyewitnesses, namely, Bhanwar Singh (PW.1), Nain Singh (PW.3),
Bagh Singh (PW.8), and Smt. Sohan Kanwar (PW.9), wife of the
deceased. However, the trial court failed to properly appreciate
their testimonies.
4.1.2. In particular, PW.1 Bhanwar Singh, the informant and
eyewitness, had categorically deposed regarding the assault on
the deceased, and his version stood corroborated by other
eyewitnesses and remained consistent in cross-examination, yet
the trial court erroneously declared him hostile, whereas his
testimony ought to have been relied upon.
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4.1.3. Likewise, the testimony of PW.3 Nen Singh with respect to
the dying declaration and documents Ex.P.7 and Ex.P.8 was
disbelieved on account of certain omissions and contradictions,
which, according to the prosecution, were minor in nature and
liable to be ignored.
4.2. Learned Public Prosecutor further submitted that the
deceased had made an oral dying declaration naming the
assailants in the presence of PW.2 Ram Singh and PW.3 Nain
Singh, which was also reflected in Ex.P.7 and Ex.P.8. Although
PW.2 Ram Singh was declared hostile and the trial court
disbelieved PW.3 Nain Singh's testimony on account of certain
omissions and contradictions, it was urged that such minor
discrepancies ought not to have been given undue weight. It was
contended that the substance of their statements stood
corroborated by other eyewitnesses, thereby lending credibility to
the dying declaration, which deserved acceptance.
4.3. Learned Public Prosecutor further submitted that accused
persons were armed with deadly weapons, namely a kulhadi, a
dhariya, and lathis, which were recovered at their instance during
investigation, and with which they inflicted multiple grievous
injuries upon the deceased. The medical evidence, including the
post-mortem report, fully corroborates the prosecution case, as
the injuries sustained were consistent with the weapons alleged to
have been used. It was urged that despite the clear evidence of
several serious and fatal injuries, the trial court erred in holding
that the injuries were not sufficient in the ordinary course of
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nature to cause death and thereby in discarding the charge under
Section 302 IPC. According to the prosecution, the nature,
number, and seat of injuries clearly establish the intention to
cause death, and thus the offence squarely falls under Section 302
IPC.
4.4. Learned Public Prosecutor further submitted that PW.9 Smt.
Sohan Kanwar, wife of the deceased, categorically deposed that
she had overheard the accused conspiring to kill her husband and,
on proceeding to the field to warn him, actually witnessed the
assault. The trial court, however, discarded substantial portions of
her testimony on account of minor contradictions which are
natural in the course of a trial. It was urged that these portions
deserved consideration, as they directly connect the accused
persons with the murder of Magh Singh. It was further contended
that the accused had constituted an unlawful assembly with the
common object of causing the death of the deceased, and the
fatal injuries were the outcome of their collective action, thereby
attracting the provisions of Sections 147, 148, 149, and 302 IPC.
4.5. Learned Public Prosecutor submitted that the plea of false
implication is untenable, as there was no reason for the
complainant to falsely implicate the accused persons while sparing
the real culprits. Minor discrepancies highlighted by the defence
are natural in oral testimony and do not affect the core of the
prosecution case.
4.5.1. Learned Public Prosecutor finally submitted that the
prosecution had proved its case beyond all reasonable doubts
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under Section 302 IPC, yet the Trial Court erred in not convicting
the accused for the said offence and instead recorded a lesser
conviction.
5. Mr. Harshvardhan Singh Rathore, learned Amicus Curiae
appearing for the accused herein, while assailing the impugned
judgment, submitted that the conviction as recorded by the
learned Trial Court in the impugned judgment is unsustainable in
the eyes of law, as the prosecution has failed to establish the guilt
of the accused beyond all reasonable doubts. It was urged that
the entire case rests upon the testimony of interested and
partisan witnesses who were either related to the deceased or
inimically disposed towards the accused. The non-examination of
independent witnesses, despite their availability, raises serious
doubts about the fairness and credibility of the prosecution story.
5.1. At the outset, it was submitted that the prosecution evidence
rests largely upon interested and partisan witnesses related to the
deceased, while no independent witness from the locality was
examined. This omission seriously undermines the credibility of
the prosecution story.
5.2. With respect to PW.1 Bhanwar Singh, it was submitted that
the learned Trial Court rightly found him unreliable and declared
him hostile. His testimony contains material contradictions
between the FIR, his statement under Section 161 Cr.P.C., and
deposition at trial. In view of such inconsistencies, his evidence
cannot form the basis of conviction. Once discredited, his
testimony cannot be relied upon to sustain impugned conviction.
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5.3. It was further argued that PW.3 Nain Singh's evidence
regarding the alleged dying declaration and the contemporaneous
documents Ex.P.7 and Ex.P.8 is wholly unreliable. His testimony
suffered from omissions and contradictions noted by the trial
court, and the prosecution has failed to explain these
discrepancies. The alleged documents are doubtful in origin and
cannot be treated as reliable proof of any dying declaration.
5.4. As regards PW.2 Ram Singh, it was pointed out that he was
declared hostile by the prosecution itself, and his testimony cannot
now be selectively relied upon.
5.5. With respect to PW.9 Smt. Sohan Kanwar, wife of the
deceased, it was urged that her testimony is full of material
contradictions and improvements. Her claim of overhearing a
conspiracy is unnatural and improbable, and the story that she
rushed to the field only to witness the assault is a later
development designed to falsely implicate the accused. The trial
court rightly discarded portion of her statement, as they were
inconsistent and unreliable. The conduct of PW.9 after over
hearing the accused persons conspiring to kill her husband also
casts a shadow of doubt as to the credibility of PW.9 as an
eyewitness.
5.5.1. It was also submitted by the learned counsel that the
statements of PW.9 were taken twice before the police, both
having contradictions amongst themselves. It is also highlighted
that the said statements, i.e., Ex.D. 4 and Ex.D.5, were taken on
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23.07.1989 and 10.09.1989. the two month gap shows the
developments and influence in her testimonies.
5.6. It was further submitted that the alleged recoveries of
weapons at the instance of the accused persons are of no
evidentiary value, as they were not seized contemporaneously, the
chain of custody was not established, and no forensic proof
conclusively linked them to the crime. PW.15 Lalit Kumar admitted
that the five recovered articles on 21.07.1989 were sent to the
Forensic Laboratory only on 14.09.1989, and the prosecution has
failed to explain this inordinate delay. In such circumstances, the
benefit of doubt must go to the accused.
5.7. As regards the medical evidence, it was argued that the trial
court correctly held that the injuries were not sufficient in the
ordinary course of nature to cause death and that out of all the
injuries caused, only Injury No. 27 which caused Internal injury
no. 3 was grave.
5.7.1. It was also submitted that Dr. Pramod PW.7 has clearly
deposed in his cross examination that puncture of the lung (right)
can also be caused when a body is mishandled or when external
pressure is applied on it. This could have been possible when PW.9
fell on her husband or when the deceased was being taken to the
hospital in the Jeep due to the broken road. The testimony of the
doctor raises a doubt to the possibility of how the lung got
punctured. In the such a circumstance, the prosecution has failed
to establish that the accused persons with the commission of
murder.
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5.8. The defence also submitted that the application of Section
149 IPC was erroneous. The evidence, at best, attributes
individual overt acts to some of the accused, but the prosecution
has not proved any premeditated common object to kill Magh
Singh. Constructive liability under Section 149 IPC cannot be
fastened in the absence of cogent proof of common object.
5.9. It was also submitted that the acquittal of 5 accused in the
same case speaks for the fact that the prosecution is trying to
frame as many accused persons as possible for the said crime.
5.10. It was lastly submitted that the plea of false implication is a
valid defence in this case. Given the strained relations between
the parties and the absence of independent corroboration, the
possibility of exaggeration and false implication cannot be ruled
out. The prosecution version suffers from material infirmities,
contradictions, and lapses in investigation, all of which entitle the
accused to the benefit of doubt.
5.11. On the above premise, it was prayed that the conviction of
the accused herein under Sections 302/149 IPC is wholly
unsustainable and liable to be quashed and set aside.
6. Heard learned counsel for both the parties as well as perused
the record placed before us.
7. This Court observes that the instant adjudication arises out
of the common judgment dated 06.03.1992 passed by the learned
Sessions Judge, Jalore, in Sessions Case Nos. 9/1990, 10/1990,
and 30/1990, whereby five accused were convicted under Sections
304 Part II/149, 148, and 447 IPC and others acquitted. During
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the pendency of the proceedings, accused Shaitan Singh and
Ishwar Singh expired and their appeals abated. Accordingly, the
present adjudication is confined to the surviving accused --
Guman Singh, Parbat Singh, and Narpat Singh.
8. This Court further observes that the prosecution rests its
case on PW.1 Bhanwar Singh, PW.3 Nain Singh, PW.8 Bagh Singh,
and PW.9 Smt. Sohan Kanwar, all closely related to the deceased.
While such testimony cannot be rejected merely for relationship,
the absence of neutral witnesses, reduces the impartial strength of
the case and calls for careful scrutiny.
9. This Court also observes that PW.1, the informant and
purported eyewitness, was rightly declared hostile. His FIR
(Ex.P.1), his Section 161 Cr.P.C. statement, and his deposition
before the Court contain material contradictions. Such
inconsistencies go to the root of the prosecution case and render
his testimony unreliable as a foundation for conviction.
10. This Court also observes that the alleged dying declaration,
reflected in Ex.P.7 and Ex.P.8 and spoken to by PW.3, suffers from
serious infirmities. The documents' origin is doubtful; PW.2,
another supposed witness, turned hostile; and PW.3's version is
inconsistent. A dying declaration, though admissible under Section
32 of the Evidence Act, must be voluntary, truthful, and free from
tutoring before it can form the sole basis of conviction (Khushal
Rao v. State of Bombay, Criminal Appeal No. 184 of 1956,
decided by the Hon'ble Supreme Court on 25.09.1957). The
present material falls short of these requirements.
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11. This Court further observes that PW.9 Smt. Sohan Kanwar's
testimony is marred by material improvements and contradictions.
Her claim of overhearing a conspiracy and subsequently
witnessing the assault is inherently improbable. Furthermore, her
two police statements (Ex.D.4 and Ex.D.5), recorded nearly two
months apart, contain contradictory versions. Such divergences
undermine her credibility as an eyewitness.
12. This Court also observes that the alleged recoveries of
weapons at the instance of the accused are of negligible
evidentiary worth. Though seizure was effected on 21.07.1989,
the articles were forwarded to the Forensic Laboratory only on
14.09.1989, thereby breaking the chain of custody. No conclusive
forensic link was established between the weapons and the
injuries and therefore, the probative value of such recoveries is
thus destroyed.
13. This Court further observes that the medical evidence,
though recording multiple injuries, discloses only Injury No. 27
(puncture of lung) as serious. Importantly, PW.7 Dr. Pramod
conceded that such an injury could result from mishandling during
transport. For conviction under Section 302 IPC, the prosecution
must prove that the injury was "sufficient in the ordinary course of
nature to cause death". That test is not satisfied here, thereby
eroding the prosecution case.
14. This Court also observes that there was no cogent proof of a
premeditated common object so as to attract constructive liability
under Section 149 IPC. At best, individual overt acts may be
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attributed, but there is no credible evidence of a shared design to
kill. Section 149 IPC cannot be invoked mechanically; the
prosecution must establish that the accused shared a common
object. That burden has not been discharged.
15. This Court also observes that the non-examination of
independent witnesses, though available, is a serious lacuna. This
Court observes that the failure to produce such witnesses casts a
cloud on the prosecution case. The omission strengthens the
defence contention of partisan and selective prosecution.
16. This Court further observes that the acquittal of several co-
accused by the trial court, coupled with the admitted strained
relations between the parties, lends weight to the plea of false
implication. In cases of group assault, inconsistency in conviction
and acquittal of similarly placed accused demands close scrutiny.
The possibility of exaggerated or malicious implication here cannot
be ruled out.
17. This Court also observes that the conviction of the accused
herein under Section 304 Part II IPC and allied offences (148, 447
IPC) also cannot be sustained. Section 304 Part II requires proof
that the accused acted with knowledge that death was likely to
ensue. In the present case, the unreliable ocular testimony,
doubtful dying declaration, inconclusive medical opinion, and
infirm weapon recoveries negate such knowledge. Even if some
injuries are attributable to the accused, they do not establish
intention or knowledge requisite for Section 304 Part II. Likewise,
once the substratum of the prosecution case is disbelieved, the
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incidental charges of unlawful assembly under Section 148 IPC
and criminal trespass under Section 447 IPC cannot independently
stand.
18. This Court further observes that in light of the cumulative
decifiencies, partisan and inconsistent witnesses, unreliable dying
declaration, inconclusive medical and forensic evidence, absence
of independent corroboration, and failure to prove any common
object, the prosecution has failed to establish guilt even under a
lesser charge. It is trite that when two views are reasonably
possible, the one favourable to the accused must be adopted. The
accused are thus entitled to the benefit of doubt and consequent
acquittal.
19. For the aforesaid reasons, this Court observes that the
prosecution has failed to establish the guilt of the surviving
accused herein beyond all reasonable doubts. The ocular
testimony is found to be unreliable and inconsistent, the alleged
dying declaration is untrustworthy, the recoveries are inconclusive,
the medical evidence does not support homicidal intent, and the
ingredients of common object under Section 149 IPC are wholly
absent. The charges under Section 304 Part II IPC, as well as
under Sections 148 and 447 IPC, is not made out.
20. This Court further observes that the settled principle of
criminal jurisprudence is that suspicion, however strong, cannot
substitute proof. When two views are possible, the view favourable
to the accused must be adopted.
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21. Accordingly, this Court holds that the appeal preferred by the
accused persons (D.B. Criminal Appeal No. 80/1992) deserves to
be allowed and is hereby allowed. The conviction and sentence
recorded by the learned Sessions Judge, Jalore, against the
surviving accused-Guman Singh, Parbat Singh, and Narpat Singh
under Sections 304 Part II/149, 148, and 447 IPC, vide the
impugned judgment dated 06.03.1992, are quashed and set
aside, and the surviving accused herein are acquitted of all the
charges against them.
21.1. This Court further holds that the State's appeal (D.B.
Criminal Appeal No. 193/1993) against acquittal and for
enhancement of conviction under Section 302 IPC is devoid of
merit and is the same is dismissed.
22. Keeping in view the provisions of Section 437-A Cr.P.C. /
Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023,
each of the surviving accused herein are directed to furnish a
personal bond of Rs. 25,000/- and a surety bond of like amount
each before the learned Trial Court, which shall remain effective
for a period of six months. The bond shall ensure that in the event
of filing of a Special Leave Petition against this judgment or for
grant of leave, the surviving accused herein shall appear before
the Hon'ble Supreme Court upon receipt of notice.
23. All pending applications stand disposed of. The record of the
learned Trial Court be returned forthwith.
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24. This Court is thankful to Mr. Harshvardhan Singh Rathore,
who has rendered his assistance as Amicus Curiae on behalf of the
accused persons in the present adjudication.
(SUNIL BENIWAL),J (DR.PUSHPENDRA SINGH BHATI),J
Skant/-
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