D.B.Criminal Appeal No.20/1992 The State or Raj. vs. Ram Swaroop & ors. 1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT The State of Raj. vs. Ram Swaroop & ors. D.B.Criminal Appeal No.20/92 against the judgment dated 30.1.1990 passed by the learned Additional Sessions Judge, Nohar in Sessions Case No.35/87. Date of Judgment: July 03, 2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA,J. Mr. J.P.S. Choudharry, P.P. for the State. Mr. R.S. Gill for Mr. Mridul Jain for the respondents. BY THE COURT : In Sessions Case No.35/87 in the court of Addl. Sessions Judge, Nohar, out of eight accused, five were acquitted for the charge under Sections 147, 302/149, 324/149, 323/149 and 447, IPC, who are Shivpal, Balveer, Dharampal, Amar Singh and Jaimal. The sixth accused Ram Swaroop was acquitted for charge under Section 307 and 447, IPC and D.B.Criminal Appeal No.20/1992 The State or Raj. vs. Ram Swaroop & ors. 2 Section 27, Arms Act. The seventh accused Jagdish was acquitted for the charge under Section 302/120B and 307/149, IPC. The only accused Daya Ram was convicted under Section 147, 149, 302/323, 323/1349 and 447, IPC and under Section 27 of the Arms Act. Daya Ram was sentenced to undergo life imprisonment under Section 302 IPC, one years rigorous imprisonment under Section 324, IPC, one month's rigorous imprisonment under Section 447, IPC and one year's rigorous imprisonment under Section 27, Arms Act. Accused Daya Ram who was convicted by the judgment of the trial court dated 30.1.1990 and was sentenced as aforesaid, preferred D.B.Criminal No.76/1990, which was admitted by this Court and was allowed by the judgment dated 28.7.1997 and the sole convict's conviction was also set aside after appreciation of all evidence produced by the prosecution. The State preferred present D.B.Criminal Appeal No.20/92 after obtaining leave from this Court against the D.B.Criminal Appeal No.20/1992 The State or Raj. vs. Ram Swaroop & ors. 3 acquittal of the accused-persons who have been acquitted by the trial court by the above mentioned judgment dated 30.1.1990. On 12.9.1991, in D.B.Criminal Appeal No.20/1992, it was ordered that the appeal be connected with said Daya Ram's D.B.Criminal Appeal No.76/90 and on 7.1.1992, leave was granted to the State for preferring appeal by this Court, i.e., after connecting Daya Ram's appeal with the present State appeal. The case file of this State Appeal was lastly listed in court on 4.9.2000 and case was fixed for hearing but it appears that file was not traceable. This Bench after taking affairs of the office, directed to conduct physical verification of all old files, upon which this File-D.B.Criminal Appeal No.20/92 was traced out. The office reported that the connected appeal no.76/90 preferred by the co-accused Daya Ram has already been allowed by the Division Bench of this Court vide judgment dated 28.8.1997. Today, the learned counsel for the respondents-accused vehemently submitted that the Division Bench of this Court D.B.Criminal Appeal No.20/1992 The State or Raj. vs. Ram Swaroop & ors. 4 thoroughly considered the prosecution case while deciding D.B.Criminal Appeal No.76/90 and reached to the conclusion that even lodging of FIR at the police station at the relevant time itself is seriously doubtful. The Division Bench of this Court appreciated the evidence of each and every witness in detail and found that they cannot be relied upon and it has been further held that even injured witness Kishna was examined three days after the incident when the hospital was in nearby area only. The Court observed that there are lot of contradictions in the statements of the eye-witnesses and further it is highly improbable that when so many male persons were present then why a lady is sent to lodge the FIR at a very long distance, whose husband was lying injured having gun shot wounds. The Division Bench of this Court on each and every point clearly observed against the prosecution and thereafter acquitted the main accused against whom there was charge for offence under Section 302, IPC, whereas the other accused have been charged only with the aid of Sections 149 or 120B, IPC for Section 302, IPC, and for other D.B.Criminal Appeal No.20/1992 The State or Raj. vs. Ram Swaroop & ors. 5 offence also,not independently. In view of the above additional reason apart from the merit, the accused- respondents cannot be convicted for any charge because of plain and simple reason that that will render two contradictory judgments of the High Court. We considered the submissions of the learned P.P. as well as learned counsel for the respondents and perused the detail judgment delivered by the Division Bench of this Court in D.B.Criminal Appeal No.76/90 decided by judgment dated 28.8.1997. It appears from the said judgment that after hearing the State, the Division Bench of this Court found that even sole accused, who was convicted by the trial court, deserves to be acquitted. The same set of evidence is against the acquitted accused respondents. The evidence which was not found sufficient for conviction of co-accused and were found not reliable then can not be reliable for these non- petitioners in the facts of this case. D.B.Criminal Appeal No.20/1992 The State or Raj. vs. Ram Swaroop & ors. 6 In view of the above reasons, the State Appeal against acquittal by the judgment dated 30.1.1990 passed by the court of Addl. Sessions Judge, Nohar in Criminal Case NO.35/87 is dismissed. The respondents who have been summoned by bailable warrants and submitted the bail bonds, their bail bonds are cancelled. ( CHAND MAL TOTLA) ,J. (PRAKASH TATIA),J. mlt