Rajasthan High Court - Jodhpur
Ugma vs State (2025:Rj-Jd:42827) on 24 September, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:42827]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 241/1993
Ugma son of Shri Deva, by caste Jangali, resident of Nathadiyas,
Police Station Raipur, District Bhilwara
(At present lodged at suj-jail, Bhilwara)
----Appellant
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Mr. Rajeev Bishnoi
For Respondent(s) : Mr. NS Chandawat, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
Reportable
24/09/2025
1. The appeal has been preferred against the judgment dated
22.06.1993 passed by the learned Addl. Sessions Judge, Bhilwara
in Sessions Case No. 93/1990 whereby he was convicted for
committing an offence under Section 307 of IPC and sentenced to
suffer 5 years rigorous imprisonment and a fine of Rs. 500/- with
a default clause of further undergoing 3 months simple
imprisonment in default of making payment of fine.
2. Succinctly stated, the facts of the case are that the appellant
along with three others was tried in regard to an incident alleged
to have taken place in the intervening night of 9-10 January
1990. It was alleged by the first informant Amarchand, PW-1, that
he along with his family members was sleeping in the house. At or
about 12 o'clock, the appellant along with Rameshwar, Mangu, and
Deva came in a Jeep; the appellant was having a gun with him
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and Deva fired upon the first informant. However, he bent on his
knee as a result thereof, the pellet did not strike him but instead
struck the wall of the house, whereafter the accused fled away
from the spot. Exhibit P-1, the FIR, came to be lodged,
whereafter, after investigation, four accused including the
appellant were challaned, and after usual investigation, the
chargesheet for committing an offence under Section 307 of IPC
came to be submitted.
2.1 The learned Magistrate took cognizance of the offence and
thereafter committed the case for trial. After receipt of the file and
the whole proceedings, the learned trial Judge proceeded to frame
charge under Section 307 of IPC against the appellant and three
others. During the course of investigation as many as six
witnesses were examined in the trial and the prosecution placed
reliance upon certain documents, particularly Exhibit P-1 FIR,
Exhibit P-2 site memo, Exhibit P-3 seizure of pellets and Exhibit P-
4 statement of witness recorded during investigation under
Section 161 of Cr.P.C. The accused was thereafter examined under
Section 313 Cr.P.C. and he absolved himself from the charges and
claimed innocence, whereafter the parties were heard on merits
and vide the impugned judgment, the learned trial court acquitted
the accused Mangu, Rameshwar and Deva from the charge under
Section 307 read with 34 of IPC, however the appellant Ugma was
convicted for committing the offence under Section 307 of IPC and
sentenced as mentioned above.
3. I have heard learned counsel for the appellant and learned
Public Prosecutor. Gone through the record of the case,
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particularly the statement of PW-1 Amarchand and PW-6, SHO
Udai Singh, who conducted investigation in the matter.
4. Learned counsel for the appellant fervently and vehemently
urged that there were no reasonable grounds that the appellant
had committed the offence. He was falsely implicated in this case
with an oblique motive. The facts and circumstances appearing in
the case unerringly suggest that no case for offence under Section
307 of IPC is made out if it is prudently examined. As per him, the
circumstances of the crime scene clearly reveal that the story of
the alleged gun fire was nothing but a concoction. According to
him, the prosecution has miserably failed to prove the charges
against the appellant and thus he deserves acquittal.
5. On the contrary, the learned Public Prosecutor strongly
opposed the submissions made by learned counsel for the
appellant. As per him, there is strong evidence, particularly the
statement of PW-1 Amarchand, that the accused along with three
others made an assault over the house and the appellant shot a
gun fire targeting the victim Amarchand. He thus prayed that no
error has been committed by the learned trial court, therefore the
appeal be dismissed.
6. After pondering over the submissions made by learned
counsel for the parties and critically analyzing the evidence
brought on record by the prosecution, my observations are as
under:-
6.1 Indisputably, a major part of the prosecution story has been
belied by the learned trial court itself. It was the case of the
prosecution that four accused, after having a common intention to
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hurt the victim, made an assault over him and a gun shot was
fired. However, the learned trial court acquitted three accused
namely Mangu, Rameshwar and Deva, but on the same set of
evidence, the appellant has been convicted. In my considered
view, from the statement of the prosecution witnesses particularly,
PW-1 Amarchand and PW-2 Lehari, there seems no distinguishable
feature wherefrom only the appellant can be chosen for the
alleged commission of crime and three others be exonerated. Why
a particular part of these two witnesses PW-1 and PW-2 be
discarded and disbelieved and why the same be accepted to bring
home the guilt of the appellant only? No justification has been
shown by the learned trial court in doing so. This Court is au fait
with the principle of law that the maxim falsus in uno falsus in
omnibus, meaning a lie at one place is a lie for all purposes has
not been followed in our country. It is a settled principle of law
that from the evidence of the witnesses examined during trial, it is
upon the prudence of the learned trial Judge to pick the reliable
and trustworthy part and to disbelieve the rest. After making a
meticulous reading of prosecution witnesses, there seems no
significant point where a line could be drawn to believe some part
of the statement of a witness and to disbelieve the rest. No
cogent, plausible and reasonable explanation has been given in
the impugned judgment to draw a line between the statements of
the two prosecution witnesses based on which the appellant alone
can be held guilty and exoneration of the three others be justified.
6.2 Besides the above, manifest errors have been noticed in the
course of investigation. Admittedly, the victim sustained no
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injuries as he explained that seeing the appellant firing upon him,
he suddenly bent down and thus escaped from sustaining injuries.
It is the case of the prosecution that the pellets hit the wall
spreading over the length of more than 70 feet. These
circumstances clearly show that the marks noticed by the
Investigation Officer could not have been from the gun fire.
Interestingly, neither the gun was recovered from the appellant
nor were the pellets recovered from the spot sent to the forensic
or ballistic expert. The crime scene was not photographed; the
photographs of the crime scene and the pellets taken from the
spot were not sent to the FSL for the report of a ballistic expert to
ascertain whether the marks appearing on the wall were from the
recovered pellets. In the absence of an expert report that the
pellets allegedly found at the spot and sent to the FSL were fired
at a time proximate to when they were collected, it cannot be said
with utmost certainty that on the day of the incident these pellets
came from the gun allegedly wielded by the appellant with which
he opened fire. There should be a nexus between the firearm and
the pellets which has not been established in this case. In the
absence of a specific ballistic report and non-seizure of the gun
from the appellant, it would be highly unsafe to convict the
appellant for having an arm and opening gun fire upon PW-1
Amarchand, particularly when he sustained no injuries.
6.3 Looking from the other aspect of this case, if the accused
were four and the victim was all alone, and the accused were
having a gun in their hand, then there was occasion for them to
hit again and again to cause harm to the victim if there had been
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an intent to kill him. Why repetitions were not made when the
accused were in a dominant position and the victim was in a
hapless and helpless condition having no assistance from
anywhere? It was midnight and there was no rescue for the
victim. There was nothing special noticing which the accused, after
seeing the failure of one gun shot, would not make an attempt to
trigger a second round. The story of their fleeing from the spot
after making a blank gun fire certainly causes a serious dent upon
the genuineness and truthfulness of the prosecution story and
certainly goes to the root of the case, and a cloud of suspicion
arises. It is a well-settled principle of law that the burden always
lies upon the prosecution to prove the guilt beyond every shade of
reasonable doubt, which in this case it utterly fails to do.
6.4 The learned trial court, based on surmises and conjectures,
observed that if the victim Amarchand had not shouted or he had
not bent down, the accused might have killed him. This court is
surprised to see this imaginary conclusion because neither such
statements were made by the prosecution witnesses nor were
there any such circumstances to draw an inference in this regard.
An inference or presumption of committing any crime must always
be based on sound, legally admissible evidence and certainly
should not be based on hypothesis. The findings of the learned
trial court are based upon the statement of PW-6 Udai Singh, Sub-
Inspector, who verified the fact that the marks appearing on the
wall were of gun shots. Whether PW-6 had such expertise is a
further question open to moot.
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6.5 This Court also noticed certain incongruences in FIR Exhibit
P-1 and the statement of Amarchand, PW-1. If the narrative
shown in FIR Exhibit P-1 is accepted, then it would reveal that the
accused was in close proximity of the victim and the gun was
pointed at his chest. But when the same is compared with his
statement and the statement of other prosecution witnesses, any
prudent person can easily notice significant discrepancies. The
contradictions and discrepancies appearing in the statements of
prosecution witnesses further weaken its case.
7. After having a careful examination of the statements of
prosecution witnesses, Exhibit P-1 FIR, Exhibit P-2 site memo and
Exhibit P-3 seizure of pellets, this Court feels that the prosecution
did not succeed in proving its case beyond reasonable doubt. At
the cost of repetition, it is again reiterated that there is no
distinction to absolve three from the charges and choose the
appellant alone for the act allegedly committed by four persons.
8. Interestingly, no appeal has been preferred by the State
against the three persons who were acquitted by the learned trial
court. Taking serious note of the above, this Court concludes that
there is force in the appeal and it deserves acceptance.
9. Accordingly, the instant appeal is allowed. The judgment of
conviction and order of sentence dated 22.06.1993 passed by the
learned Addl. Sessions Judge, Bhilwara in Sessions Case No.
93/1990 is hereby set aside.
10. The appellant is acquitted of the charges. He is on bail. His
bail bonds are canceled. He need not surrender back. The record
be sent back forthwith.
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11. However, keeping in view the provisions of Section 437-A
CrPC, the appellant shall furnish a personal bond in the sum of Rs.
40,000/- and a surety bond in the like amount before the learned
trial court, which shall be effective for a period of 3 months to the
effect that in the event of filing of a Special Leave Petition against
the present judgment, on receipt of notice thereof, the appellant
shall appear before the Supreme Court.
(FARJAND ALI),J
39-chhavi/-
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