IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT 1.Surendra Singh Vs. State of Rajasthan (D.B. Criminal Appeal No.616/2005) 2.Kesar Singh Vs. State of Rajasthan (D.B. Criminal Appeal No.617/2005) 3.Devi Lal Vs. State of Rajasthan (D.B. Criminal Appeal No.587/2005) D. B. Criminal Appeals under Sec.374 (2) Cr.P.C. against the judgment dated 17-6-2005 in Sessions Cases Nos.01/2001 and 20/2002 passed by Shri Shiv Singh Chauhan, RHJS, Special Judge (Fake Currency Cases) Jaipur City Jaipur. Date of Judgment: January 23, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE R.S.CHAUHAN Mr. H.P. Singh ] for the appellants. Mr. Biri Singh ] Mr. Sanjay Mahala] Mr. Ashwini Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Challenge in these appeals is to judgment dated June 17, 2005 of learned Special Judge (Fake Currency Cases) Jaipur City, whereby three appellants were convicted and sentenced as under:- Surendra Singh, Kesar Singh and Devi Lal: U/s.302/149 IPC: Each to suffer imprisonment for life and fine of Rs.500/-, in default to further suffer simple imprisonment for one month. U/s.148 IPC: Each to suffer rigorous imprisonment for one year. Substantive sentences were ordered to run concurrently. 2. Co-accused Gulab Singh although convicted under section 148 and 302 IPC, referred to Juvenile Board under Section 20 of the Juvenile Justice (Care and Protection of Children) Act,2000. 3. Co-accused namely Lokeshwar Singh, Pushpendra, Ramesh Chand, Satya Narayan and Mukesh were not found guilty and acquitted of the charges under sections 147, 148, 323, 149 302 read with 149 IPC. The State of Rajasthan however did not file appeal against the finding of acquittal. 4. It is the prosecution case that on August 10, 2000 at 11.50 AM informant Subhash Chand Jain (Pw.2) handed over a written report (Ex.P-23A) to the SHO Police Station Vidhayadhar Nagar Jaipur. It was inter alia stated in the report that some unknown assailants had killed his son Deepak Jain. On that report case under sections 147, 148, 149, 302 and 34 IPC was registered and investigation commenced. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge (Fake Currency Cases) Jaipur City Jaipur. Charges under sections 147, 148, 302, 323 read with 149 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 22 and 23 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. 5. Having given our anxious consideration to the submissions advanced before us we notice that death of Deepak Jain was homicidal in nature. A look at Post Mortem Report (Ex.P-35) reveals that following ante mortem injuries were found on the dead body:- 1. Abrasion mark on Rt. cheek promince 1½cm x 1cm x bone deep 2. Abrasion mark on Rt. angle of mouth ¼cm x ¼cm x bone deep 3. Abrasion Mark on Rt. ante superior iliac spine ½cm x ½cm bone deep 4. Abrasion mark on front mid part of Rt. thigh ¼cm x ¼cm x bone deep 5. Oblique incised wound, obliquely inflicted Rt. parietal region 4cm x 1cm x bone deep clean cut edges with cut in outer table of parietal bone 1½cm x 1/10cm, fresh clotted blood seen. 6. Verticle oval incised wound in Lt. inguinal ligament region lower side mid part 1¾cm x 1¼cm x cavity deep going in upward backward & medially in direction towards peritoneal cavity clean cut edges with effusion of blood in muscles. In the opinion of Dr. Balmukund Upadhayay (Pw.18) the cause of death was hemorrhagic shock as a result of injury to blood vessel and urinary bladder. 6. Only two witnesses namely Devendra Singh (Pw.9) and Ajay Singh (Pw.10) partly supported the prosecution case. They although did not see the incident, they were part of the crowd gathered at the time of incident. According to them Gulab Singh was armed with knife at the time of melee. They further stated that Kesar Singh, Devi Lal and Surendra were also present in the crowd. According to them Deepak Jain, who sustained incised wounds died on the spot. 7. Accused Gulab Singh was arrested vide memo Ex.P-2 and pursuant to his disclosure statements, Katar (knife) and shirt stained with blood got recovered vide recovery memos (Ex.P-16) and (Ex.P- 18). Shirt and Katar (knife) were sealed in packets bearing marks `F' and `E-1' and sent for examination. Vide FSL report (Ex.P-38) human blood of Group `A' was found on shirt and Katar. Pant, shirt, Baniyan, underwear of the deceased stained with blood were sealed in packet marked `D'. As per FSL report (Ex.P-38) human blood of Group `A' was also found on the clothes. 8. The prosecution examined Ganesh Singh (Pw.5), Balbir Singh (Pw.6), Vijay Pratap Singh (Pw.7), Dipendra Singh (Pw.22), Durga Das (Pw.1) and Sandeep Solanki (Pw.4) as eye witnesses of the incident but they did not support the prosecution case and were declared hostile. 9. The prosecution case thus rests on circumstantial evidence and the circumstances that were found established read as under:- (i) Cause of death of Deepak Jain was hemorrhagic shock as a result of injury to blood vessel and urinary bladder. The injuries were caused by sharp edged weapon. (ii) Katar (knife) and shirt got recovered at the instance of accused Gulab Singh and the clothes of deceased were stained with human blood of Group `A'. (iii) According to Devendra Singh (Pw.9) and Ajay Singh (Pw.10) accused Gulab Singh armed with knife was present in the crowd. At that time Deepak Jain was also present. (iv) There was a melee and Deepak Jain sustained incised wounds as a result of which he died. 10. Learned trial court on the basis of established circumstance observed in para 18 of the impugned judgment thus:- "इसमɅ सा¢ीगणकेबयानɉ सेजोतØ यआयाउसमɅ अिभयुÈ तगुलाबिसंहहȣ अगवाहोकरआया औरउसीकेसाथीदसरे ू थेऔरदȣपकजैनकोचोटɅ काǐरतकȧ हɇ औरदȣपकजैनकोजोचोटɅ काǐरतकȧ है, ूदश[ पी-35 पोः टमाट[मǐरपोट[ मɅ जोचोटसं. 6 आईहैवहधारदारहिथयारसे आईहै।अत: यहचोटगुलाबिसंहƮाराहȣ काǐरतकरनेकȧ हȣ उपधारणाबनतीहै।अत: गुलाब िसंहकेǒवǾƨ धारा 302 भा.दं.सं. काआरोपसाǒबतहोताहै।" 11. In regard to appellants Kesar Singh, Devi Lal and Surendra Singh, learned trial court observed that being the members of unlawful assembly they were guilty under section 302/149 IPC. According to Devendra Singh (Pw.9) and Ajay Singh (Pw.10), appellants Kesar Singh, Devi Lal and Surendra Singh along with accused Lokeshwar Singh, Pushpendra, Ramesh Chand, Satya Narain @ Sattu and Mukesh, all were present in the crowd, only appellants Kesar Singh, Devi Lal and Surendra Singh have been convicted and other co-accused were acquitted on the ground that there were no evidence against them. 12. A look at the material on record also demonstrates that Motor cycle bearing No.RJ-14 29M- 1575 got recovered at the instance of appellant Kesar Singh but motbirs Durga Das (Pw.1) and Sandeep (Pw.3) did not support the recovery and they were declared hostile. 13. In the ultimate analysis we find that the prosecution although establish guilt against Gulab Singh but it could not be proved beyond reasonable doubt that appellants were the members of unlawful assembly and they shared common object with Gulab Singh to kill Deepak Jain. Moreover the case of appellants Kesar Singh, Devi Lal and Surendra Singh is not distinguishable with that of co-accused Lokeshwar Singh, Pushpendra, Ramesh Chand, Satya Narain @ Sattu and Mukesh, who have been acquitted by the learned trial court and the State of Rajasthan did not assail the finding of acquittal. 14. In the ultimate analysis we find that the prosecution is only able to ex-facie establish charge against accused Gulab Singh, who is not before us. No opinion, therefore, can be expressed against accused Gulab Singh. Since co-accused Lokeshwar Singh, Pushpendra, Ramesh Chand, Satya Narain @ Sattu and Mukesh have been acquitted by the learned trial Judge and State did not prefer appeal against them and their case is not distinguishable with that of the case of appellants Kesar Singh, Surendra Singh and Devi Lal, we allow instant appeals and acquit Kesar Singh, Devi Lal and Surendra Singh of the charges under sections 148 and 302/149 of the IPC. Appellants Kesar Singh, Devi Lal and Surendra Singh, who are in jail, shall be set at liberty forthwith, if they are not required to be detained in any other case. (R.S.Chauhan),J. (Shiv Kumar Sharma)J. arn/