IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
DEVI LAL & Ors. V/S The State of Rajasthan
D.B. CRIMINAL APPEAL No. 43 of 1987
Date of Judgment : 5thJanuary, 2010
PRESENT
HON'BLE SHRI N.P.GUPTA,J.
HON'BLE SHRI C M TOTLA,J.
Mr. NIRANJAN SINGH for Mr. MK GARG, for the appellant.
Mr. A.R. NIKUB, PP, for the State.
BY THE COURT: (Per Hon'ble Gupta, J.)
This appeal by the five accused persons
Devilal, Lalchand, Rajiram, Mohanlal, and Utama Ram
arises out of the judgment of the learned Additional
Sessions Judge No.2, Hanumangarh dt. 30.1.1987 passed
in Sessions Case No. 70/1985 convicting and sentencing
each of the accused appellant as under:-
Under Sec.148 IPC- Sentenced to one year’s R.I.
U/s. 302 r/w 149 IPC- Imprisonment for life and fine
of Rs. 500/-; in default to
undergo three months’ R.I.
U/s. 27 of the Arms Act- One year’s R.I. And a fine of
Rs. 200/- in default to
undergo one month’s R.I.
The appeal was admitted on 9.2.1987, and
thereafter, after receipt of the record, the sentence
awarded to the accused persons were also ordered to be
suspended.
2
However, as transpires from the marginal
notings of the order-sheet dt. 26.4.1999, that the
appellants no. 1 and 4 Devilal and Mohanlal
respectively had expired. Thus, the present appeal
survives only on behalf of Lalchand, Raji Ram, and
Utma Ram.
The necessary facts are, that on 20.9.1982 at
about 8.30 A.M. P.W. 3 Jagdish lodged a first report
Ex. P-4 at Police Station Hanumangarh Junction,
alleging interalia that at about 6.45 in the morning
that day the informant along with his brother Lalchand
and one Balwant (deceased) being the brother in law of
Lalchand were going to Dhanis of 32 LLW for the
purpose of purchasing milching buffalo, when they
reached in the Rohi, where their own land existed, one
Red Jeep overtook them, and stopped a little ahead
wherefrom 9 accused persons being Devilal, Utma Ram,
Mohanlal, Raji Ram, Chanan Ram, Mani Ram, Chhotiya @
Jarnail Singh, Lalchand and Saudagar Singh alighted,
and challenged them. Devilal gave out that they should
not be spared now, and thereupon the accused persons
started indiscriminately firing. However, informant
and his brother Lalchand could escape, but Balwant
Singh who was hiding in the Gwar was spotted, and was
shot. After receiving gun shot injury the victim
raised a cry, whereupon the informant and his brother
went and found the victim badly injured. They carried
him for some distance but he died. Thereupon a formal
report Ex.P-5 was recorded, and registered for the
offence under Section 302, 34 IPC, and 27 of the Arms
3
Act, necessary investigation was conducted, and
challan was filed in the Court of Magistrate
concerned, wherefrom the case was committed, and was
ultimately tried by the learned trial court.
The learned trial court framed charges
against the accused Mani Ram, Saudagar Singh, and
Chhotiya @ Jarnail Singh for the offence under Section
147 and 302 read with Section 149 IPC, and charged all
other accused persons for the offence under Sections
148, and 302 read with Section 149 IPC, while all the
accused persons were also charged for the offence
under Section 27 of the Arms Act. During trial the
prosecution examined six witnesses, and tendered in
evidence numerous documents while the defence did not
examine any witness, however, tendered few documents
in evidence. In statement under Section 313 Cr.P.C.
the accused persons took a stand of denial. The
accused Lalchand took the stand, that Jagdish and his
brother Lalchand want to snatch away his land which is
of his ownership, and possession, and where he is
living with his family by erecting a Dhani, and by
involving him in a case he wants to illegally grab the
land, and that the land is his ancestral one; while
the other accused persons took the stand of having
been falsely implicated on account of somehow being
related with Lalchand, or being working on the field
of Lalchand etc. The accused Devilal also pleaded,
that informant Jagdish is an educated person, who with
the collusion of the police authorities wants to
implicate the entire family and grab the land. Learned
trial court after completing the trial, by the
4
impugned judgment acquitted four accused persons,
being Chanan Ram on the ground of his having not
inflicted any injury, and also acquitted Mani Ram,
Chhotiya @ Jarnail Singh, and Saudagar Singh on the
ground that they did not in any manner take part in
the incident. Thus, qua these four persons it is found
that it is not established beyond doubt that they
formed unlawful assembly, or committed rioting, while
the other five accused persons were found guilty for
the offences as mentioned above, and were sentenced as
above.
Arguing the appeal, assailing the impugned
judgment good amount of criticism was advanced against
the evidence of informant P.W.3 Jagdish, and P.W.4
Lalchand, for that purpose the site plan, and site
inspection note Ex. P-6 and Ex.P-6A were also pressed
into service. Then, Ex.P-13 was also relied upon to
show, that from the person of the deceased one empty
of 8 mm bore was recovered. Reliance was placed on the
statement of I.O. P.W.5 Richhpal Singh, and it was
contended that as a matter of fact the land is
ancestral land of Lalchand appellant which the
prosecution party wanted to grab, on account of the
fact, that they claim to have got executed a sale deed
from Lalchand’s grand mother Santo, though Lalchand is
living on the land with his family, having erected a
Dhani. It was contended that in the earlier evening
the prosecution party came in a body, armed with
firearm, and to create an atmosphere of terror in the
area, firing was done, rather it was the prosecution
party who had come on the fateful day in a body armed
5
with deadly weapons, including firearms, to somehow or
the other dispossess Lalchand, and for that purpose it
was the prosecution party who opened indiscriminate
firing, and unfortunately in that process one of the
fire hit their own man Balwant, and Jagdish taking
advantage of the unfortunate death of Balwant, on
account of already existing dispute has cooked up the
incident, in another attempt of snatching the land
from the appellant. It was also submitted that for the
incident of earlier evening F.I.R. was also lodged,
whereupon as admitted by the Investigating Officer
P.W.5, a challan was filed. It was also contended that
on account of the registered sale deed being fake or
forged, in that regard also the prosecution was
launched, and thus it is clear, that it was the
prosecution party, who somehow or the other wanted to
grab the land, and unfortunate incident has been
foisted on the appellants.
Learned Public Prosecutor, on the other hand,
supported the impugned judgment, and submitted that
the case rests on the testimony of the two eye
witnesses P.W. 3 and P.W.4, and there is no reason to
disbelieve their statements. Regarding the deposition
by the Investigating Officer P.W. 5 during cross
examination, it was contended to be only hearsay, and
being not admissible in evidence. It was also
submitted that the evidence of P.W. 3 and P.W. 4 is
plain and simple, when they were going to purchase
buffalo, there was no occasion for the accused to go
armed with any weapon, and they were waylaid by the
accused persons unawares, and the accused persons
6
opened firing, wherein the deceased had died. Thus,
there is no reasonable ground to interfere with the
impugned order of conviction.
We have heard learned counsel, have
considered their submissions, and have gone through
the record closely and carefully.
Since the prosecution relies upon, and rests
its case mainly on the evidence of P.W. 3 and 4, we
may gainfully recapitulate their evidence in order to
see as to whether it would be safe for us to rely upon
them to find the three accused appellants guilty for
capital offence.
Jagdish informant P.W. 3 has deposed, that
the three persons were going to purchase milching
buffalo in the Dhani of 32 LLW, and when they reached
near the land purchased by them, at about 7 A.M. a red
colour jeep overtook them, and stopped a little ahead,
wherefrom nine named accused persons alighted. He has
described that the accused Devilal was armed with 12
bore gun, while the accused Lalchand, Mohanlal and
Rajiram were armed with pistol, and Utama was having a
Pakki Gun, Chanan Ram was having Gandasi, and the
remaining three accused persons were empty handed. He
further deposed that immediately on alighting the
accused persons challenged, and Devilal told that they
should not be spared today, and the accused persons
opened indiscriminate fire, the witness and his
brother Lalchand could escape, while the deceased was
hiding in Gwar, who was shot by the accused persons,
7
on hearing hue and cry of the injured they reached
near Balwant, and when they were carrying him to
village, on the way he succumbed to the injuries. Then
Lalchand was left to look after the corpse, and the
witness went to police station to lodge the first
information report. He has proved Ex.P-4 and P-5. It
is also deposed that there existed a dispute between
the prosecution side, on the one hand, and Lalchand,
the accused party on the other hand, and on account of
that enmity the incident has been caused. In cross
examination he has admitted that he is ex-student of
Rampuriya College, and had also admitted to have left
attending college for the last one year, and despite
leaving college he is continuously living in Bikaner
in a rented room, and claims to be having bachelor
degree in commerce. According to him earlier they had
46 bighas of land in 29 LLW. Then, he has stated that
he did not give out orally to the S.H.O., rather gave
it in writing which writing was scribed by him sitting
outside. Then, he was confronted with his police
statement Ex.D-2 regarding omission about existence of
Dhani of the informant on the land in question, but he
could not give out any reason for the omission. Then,
he was confronted with the portion A to B wherein it
is mentioned that accused Lalchand is living by
erecting Dhani. The witness deposed to have not given
out this portion. Then he has maintained that
immediately after alighting from the jeep, the accused
persons fired indiscriminately, and killed Balwant by
indiscriminately showering firearm injuries. It may be
noticed here, that there is only one firearm injury on
the body of the deceased. Then, he has stated that the
8
I.O. came at the place of incident at about 10 A.M.,
and he also went in the jeep of S.H.O. though for
going to police station he claims to have gone by bus,
and was carrying ticket when he reached the police
station, but then took a U turn, and stated that the
conductor had taken away the ticket and torn it in the
way. He has also stated that there was no blood
available at the place where Balwant was killed. He
had gone to fetch photographer but the photos of the
place of incident could not be taken because
Additional S.P. had refused. Then, he has admitted
that in the Dhani mentioned above now the accused
Lalchand lives forcibly, though he had not initiated
any legal action for dispossessing Lalchand. He has
deposed that the victim was carried by them to a
distance of 6-7 Bighas but then both the brothers who
carried him did not get any blood stains, nor any
blood fell on the route. Then, he has also stated that
the place where Balwant was killed, Gwar was sown by
them. However, subsequently the accused persons took
possession of that land, for which also no legal
action was initiated. He has maintained that he did
not narrate the incident to the Panch or Sarpanch of
the village which is at a distance of 4 ½ Murabba, nor
did he take anybody with him, though he narrated the
incident to his Uncle. Then, he was cross examined to
test his reliability about the place where the victim
was lying, by asking about the crops standing in the
neighbouring fields, to which he deposed ignorance. He
has also gone to the extent of stating that he does
not recollect as to whether there was any blood or not
when they removed the victim from the place where he
9
was lying. Then, he has stated that the jeep stopped
at a distance of ¾ Kilo (probably Bigha), and
immediately after alighting therefrom they opened
fire. The way was Kacha, and the witness was on foot.
They put the dead body in the field of Jotram, the
distance from the place where the dead body was kept
and they heard the cry was 6 to 7 kilas. Then, he has
stated that he did not show the place where the jeep
was standing, nor the marks of tyre of the jeep to the
I.O., but he has denied the suggestion about there
being no tyre marks of the jeep at that place, or the
story of accused persons coming in a jeep being a
concoction. He has then stated that his signatures
were not obtained by the police on any paper. He has
denied the suggestion about his having told to Jot Ram
s/o Ram Pratap about their having gone on the land of
Lalchand to forcibly take the possession, and in that
process the fire shot by their own person hit the
victim. The witness has deposed that he did not meet
Jot Ram. He has deposed ignorance about Jot Ram having
been examined from prosecution, and to have been
listed as a witness. Similar suggestion was made about
the witness to have narrated to Bharmal, which too has
been denied by stating that he did not meet Bharmal,
and has also deposed ignorance about Bharmal being
kept as a witness of prosecution. Similar is the
situation about his having told to Hajari s/o Dana Ram
Jat. He has denied the suggestion about one jeep full
of persons having come to take possession of the land
of the accused Lalchand on 19.9.1982, or those persons
have shot air fire to create an atmosphere of fear. He
has denied the suggestion about Balwant being armed
10
with 18 MM gun. He has also denied the suggestion
about his having told Khajan s/o Janduram about their
having gone to take possession of the land of accused
Lalchand, and in that process Balwant had died by
their own fire. He has also denied the suggestion
about having given out at 9 P.M. on 19.9.1982 in
presence of Balwant Singh and Raji Ram that they have
to take possession of the land of the accused Lalchand
even at the cost of committing murder. He has also
denied suggestion about his having told Bhagiram to
have gone to take possession of the land of accused
Lalchand, in which process Balwant having died by
their own fire. Then, he has stated that his father
has a licensed gun which gun is lying in the Police
Station, Hanumangarh Junction, which was deposited
there by the accused Lalchand by snatching it. He has
admitted that there is litigation going on with the
accused Lalchand, whose father was Bhaniram, whose
father was Hariram, who had come from Pakistan, and in
whose favour 15 bighas of land was allotted as non-
claimant. He has deposed ignorance about Santo having
initiated any litigation against his brother Lalchand
with respect to land in question. He has also deposed
ignorance about their being any stay orders from
Rehabilitation and A.D.M. Ganganagar prohibiting Santo
from selling the land. Santo is alleged to have died.
He has admitted that the accused Lalchand had
initiated litigation against this witness, and his
brothers Lalchand and Brijendra and father Ramkaran
for getting forged sale deed registered. He has stated
that a murder case was got registered by Utma Ram
against the witness, his brother, and father after
11
eight days of the registration of the sale deed. Then,
he has admitted that they did not go to any Dhani to
see buffalo, Chanan did not inflict any injury to
Balwant, and the other three accused persons who were
empty handed also did not cause any injury, nor did
they hold Balwant. However, he has maintained that
firing at Balwant continued for 5 to 6 minutes. He has
maintained that there was no blood at the place where
from the deceased was lifted, or where he was put. He
has admitted that there was no exit wound of the fire
injury. He has deposed ignorance about any bullet or
pallets having been found on the spot. Then, he has
deposed that no prosecution is pending against the
witness, and his father for firing at Balwant. He did
not see 8 MM cartridge in the pocket of the victim.
Then, he has denied the suggestion about the incident
having occurred at 3 A.M. in the night, and in order
to save himself from the prosecution, and to grab the
land, this false case has been cooked up. This is the
entire evidence of Jagdish, P.W.3.
Coming to the evidence of P.W.4 Lalchand. He
has also deposed the happening of the incident as
deposed by Jagdish, and has proved site plan Ex.P-6,
the site inspection note Ex.P-6A, and other memos
including seizure memo of Gandasi and shoe recovered
from near the dead body being Ex. P-11. He has also
proved the memo of recovery of empties from the spot,
being Ex.P-12 and P-13. In cross examination he has
deposed that five persons were armed with gun and
pistol, and all the five fired for 10 to 15 minutes,
and had showered firearm injuries at Balwant,
12
therefore, Balwant died. According to him one Kila
measures 30 paces. He has maintained that immediately
on alighting the accused persons opened indiscriminate
firing, he had shown the site to the I.O., and had
shown the place where they heard the cries of the
victim, and they returned. However, there were no foot
marks, the I.O. had enquired from the Patwari about
the land, and Patwari gave out the land to be in the
name of Santo, there was no blood at any other place
except the place where the dead body was put, no marks
were found of pallets or of bullets where Balwant fell
down. They did not see Balwant receiving firearm
injury. He has maintained that at Dhani children of
Lalchand or his family members were not there, nor any
residential articles were lying there. He did not see
any cattle tethered either. However, he has maintained
that Dhani was erected about two months before the
incident. He had admitted that nobody of their side
lives in Dhani. He claims to have been paying
irrigation charges but he did not give the receipts to
the Investigating Officer, he did not see 8 MM empty
in the pocket of the victim, he has then stated that
he does not know as to any memo was prepared about
seizure of that empty. However, he appended his
signatures at whatever place the I.O. desired. Gandasi
seized was of victim. He had maintained that the
accused armed with Gandasi, so also the accused
persons who were empty handed, did not cause any
injury to Balwant, he has deposed ignorance as to
after how many days registration of sale deed Santo
died. He has also deposed ignorance about the
appellant Utma Ram having lodged any prosecution
13
against the witness, and his brother Brijendra and
father Ramkaran for killing Santo. Then, he has denied
the suggestion about the prosecution persons having
gone to village Subhanwala at 9 P.M. on 19.9.1982 and
to have shot two fires there to create terror in
presence of Sadula Ram and Ramlal. He has denied the
suggestion about having collected many persons in the
village, and to have given out that they would be
taking back possession of the land from the accused
Lalchand, or to have told to Bharmal s/o Dhana Ram
that at 3 A.M. in the night Balwant died by their own
shot. Similar is the version about Jot Ram s/o
Rampratap, Ghagiram, Daluram etc. He has also
maintained that he and his brother did not receive any
blood stains in the process of carrying the victim. He
has denied the suggestion about the land being
allotted to accused Lalchand in Government record, he
was confronted with his police statement Ex.D-5 about
omission to depose Devilal having challenged. This is
the evidence of Lalchand.
Then, in order to appreciate the site plan
and site inspection note we may recapitulate briefly
the evidence of I.O. He has stated that site plan Ex.
P-6 and site inspection note Ex. 6A were prepared, one
shoe and Barchhi were taken from the spot vide Ex. P-
11, and pieces of Dats of cartridge were recovered
from the spot, and were sealed vide Ex.P-12, clothes
of victim, another shoe and one empty cartridge
recovered from the pocket of the victim were taken
into possession vide Ex. P-13, and were seized. In
cross examination he has stated, that the eye
14
witnesses had shown him to be standing at the place
marked ‘E’ in Ex.P-6, and the place mark ‘A’ where the
dead body was found wherefrom blood stained earth was
taken, distance between the place marked ‘A’ to ‘E’ is
11 Kilas, and there was no trail of blood, there was
one Kotha in the field, where the ladies of the family
of the accused Lalchand were there, he has deposed
that the portion C to D in Ex. 6A has been mentioned
on the basis of his observation. Then, he has also
stated that 8 MM empty, recovered from the pocket of
the victim, was of 8 MM rifle, Gandasi recovered was
reported to be belonging to the deceased. Then, some
questions answer form statement was recorded, wherein
he has deposed that the witness Ramlal, Sadularam, and
Balwant Singh had given out that the prosecution party
collected the people in the night for taking
possession of the land of the accused Lalchand, and
for that purpose firing was done in village
Subhanwala, and fear psychosis was created. He has
also stated that Jot Ram had disclosed that the
prosecution party had gone to take possession of the
field of Lalchand, in which process their own person
received gun shot injury. This was disclosed to this
witness by Jagdish. Similar narrations were reported
to have been done by various other witnesses. He has
admitted to have put a note in the police diary about
the incident being relating to 3 A.M. in the night.
Then, he has also admitted that he submitted a challan
in the Court against Jagdish, Lalchand the complainant
and Ramkaran for having fired on the field of accused
Lalchand. This challan is regarding the incident
taking place in the night intervening 19th and 20th
15
September, 1982 at 3 A.M.
In this background a look at Ex.P-3 shows
that the land of Kila no. 2, 3, 8, 9, 12, 13, 18, 19,
22, and 23 of Stone No. 35/220 so also land of Kila
No. 21 to 25 of Stone No. 35/219 is in the name and
possession of Santo, Lalchand (accused). Then, a look
at Ex.P-6 and 6A shows that these lands are situated
north to south, and in further south there is a way
east to west. Point A is towards the far east, while
point C, D, E, F etc. are towards west. Then, point F
is marked at innumerable places in Kilas No. 16, 17,
18, 19, 22, 23, 24 and 25 as the places wherefrom
empties were recovered. Point D is in the southern
side of Kila No. 22, while point C is in the north
western side of Kila no. 24. Dhani is shown in Kila
no. 13 which is in the north side. With this, as
appears from Ex. P-6A that, according to prosecution,
the informant and two others were travelling from east
to west, and at point B they are said to have been
overtaken while at point A dead body of the deceased
is said to be lying. Then, C is the place where the
jeep is said to have stopped. Obviously C is in the
north west of Kila no. 24, and Kila no. 24 is a Kacha
field. Admittedly no firearm, or any other symptoms of
any jeep having come there have been found.
Then, D is the place where the victim is said
to have been shot, say to have received injuries. As
noticed above this D is in the south portion of Kila
no. 22. Obviously, in between point C to D there is a
full Kila no. 23, and some portion of Kila no. 22 and
16
24 also. This Kila no. 22 and 23 are shown to be in
possession of accused Lalchand. It is admitted by P.W.
4 that the way shown in the map A to B is not a
through and through way rather stops ahead.
In the background of the above situation, the
things are required to be comprehended, as to whether
the incident did at all occur in the manner in which
the Court is asked by P.W. 3 and 4 to believe. The
first thing that occurs is, that there was no occasion
for the three persons of the prosecution side to go
from east to west, and more particularly at point D.
Then, in absence of anything on record, it is too much
to believe, or assume, that the accused persons did
have the information about P.W. 3, P.W. 4, and the
victim being going on this way, so as to come armed
with firearms in a jeep, and to waylay them say
overtake them, and cause the incident. Admittedly
there is a dispute between the parties about the land.
According to Ex. P-3 the land is recorded in the name
of Lalchand’s grand mother Santo. According to the
prosecution party, they purchased the land from Santo
by registered sale deed, and as appears from
collective reading of the statements of P.W. 3 and
P.W. 4, that after about 8 days of the registration of
the sale deed Santo came to be murdered, and the
appellant being Utma Ram had lodged prosecution
against P.W. 4, his another brother and father for
murder of Santo, apart from the fact that other
prosecutions were also launched about registry being
forged one. Of course, the date of the sale deed has
not come on record, but then this sequence of things
17
does show, that the land was in possession of Lalchand
at the time of incident. In this background a look at
Ex. P-6 and Ex. P-12 together again show, that empty
cartridges have been recovered from the Kilas no. 16,
17, 18, 19, 22, 23, 24, and 25. If the accused were
nine in number, and on the victim side there were only
three persons, the accused had already alighted from
the jeep, and had opened fire seeing which P.W. 3 and
4 had run away, only deceased Balwant Singh was there,
there could not be any occasion for the firing being
done from so many places, so as to scatter the empties
in as many as 8 kilas. Moreso when the deceased is
said to have received injury in Kila no. 22 at point
D, which is south west extreme corner of all the 8
Kilas.
This coupled with the fact that whether place
B or at any other place in Kilas no. 16, 17, 18, 19,
or 22, 23, 24, and 25 no marks, whether of blood, or
of human feet or of firing have been found except
recovery of empties. The blood stained earth is also
said to have been collected only from point A where
the dead body was put. Then, it is also required to be
considered, that according to Ex.-1 the deceased had
received bleeding injury, gun shot wound of entry in
the epigastrium mid line upper part slightly right
side, and he died due to severe haemorrhage resulting
into death, but then according to P.W. 3 and P.W. 4
despite their carrying the victim they did not receive
any blood stains on their clothes, nor any blood fell
from the place D to A.
18
In this background it does cast a serious
doubt on the reliability of the version of P.W. 3 and
P.W.4 about the manner of happening of the incident.
In our view, the story projected during cross
examination, and deposed by I.O. P.W. 5 in the cross
examination, does appear to be more probable, as
regarding the incident of the night even challan had
been filed. It is very well probable that since land
was recorded in the name of the accused Lalchand, who
was not prepared to give up the land, his grand mother
Santo had already been murdered, there was serious
controversy about the genuineness of the sale deed,
the prosecution persons must be feeling strong enough
to capture possession from the accused Lalchand by
force, including using of firearm, it is also well
nigh possible, that in this process they my have come
at the dead of the night i.e. 3 A.M., and opened
indiscriminate fire, resulting into scattering of
empties in as many as 8 Kilas upto Dhani situated in
Kila No. 13, and in that process of indiscriminate
firing, some shot might have unfortunately hit
Balwant, and then prosecution might have thought it a
good opportunity to avail, to achieve their intentions
of taking over possession of land from the accused
Lalchand.
It is significant to note, that despite the
weapons being recovered from the accused persons,
purportedly on the information, and at the instance of
the accused under Section 27 of the Evidence Act, and
despite good number of empties, say about a dozen,
19
having been recovered from the spot, none of them i.e.
whether weapon or empties were sent for ballistic
examination, even to lend the assurance about the
empties being fired by the weapons recovered from the
accused persons, much less about serviceability of the
weapons recovered from the accused persons.
Significantly further neither the weapons nor the
empties have even been produced in the court, much
less identified. We are constrained to repeat, that if
the incident were to take place in the manner alleged
by the prosecution, there was no occasion for the
accused persons to so fire, as to scatter the empties
in as many as 8 Kilas. Then, according to P.W. 3 and
P.W. 4 the firing continued for 5 to 6 minutes or 10
to 15 minutes continuously, and indiscriminately, on
the victim, while as appears from Ex. P-1, that the
victim had received only one entry wound, that too
with no blackening, which obviously shows that it was
not a close ranged fire, but the shot appears to have
been fired from good distance.
Since the learned trial court has taken the
matter in a lopsided manner, rather as if it was a
civil case, and the learned Judge was judging as to
whether the defence has been able to prove its story,
or the prosecution has proved it, and then has
proceeded with conjectures in favour of the
prosecution, to seek assurance to reliability of the
statements of P.W. 3 and P.W. 4, which in our view is
not a correct approach. This is for the prosecution to
prove its case beyond any reasonable manner of doubt,
and the accused, at best, is only required to
20
reasonably probablise the theory propounded by him,
and is not required to prove it.
All said and done, in any case, from the
entire scanning of the record, we do not find
ourselves to be safe, in believing the two witnesses
P.W. 3 and 4, to find the accused persons guilty for
the capital offence.
Resultantly the appeal is allowed. The
impugned judgment is set aside, and all the accused
persons are acquitted of all the charges. They are on
bail, they need not surrender, their bail bonds stand
cancelled.
( C M TOTLA ),J. ( N P GUPTA ),J. /Sushil/