JUDGMENT

Santosh Hegde, J.-The State of Rajasthan is in appeal before us against the judgment of the High Court of Rajasthan at Jodhpur made in Criminal Appeal No. 111 of 1991. The appeal before the High Court was against a judgment of Additional Sessions Judge No. 1, Hanumangarh who by the said judgment, while acquitting 13 other accused persons, convicted the respondents herein for offences punishable under Sections 302 and 302 read with 34 IPC. By the impugned judgment, the High Court has allowed the appeal setting aside the conviction and sentence imposed on the respondents by the trial court.

2. Brief facts necessary for the disposal of this appeal are as follows:

Because of certain enmity arising out of political rivalry between the group of respondents herein and the complainant PW-1, it is stated that on 10.6.1988 at about 11 - 11.30 p.m. in Chowk Bazar near the bus-stand in the village Tibi, respondents herein and 13 others formed themselves into an unlawful assembly and attacked deceased Mahavir Singh in which attack second respondent herein exhorted the first respondent to shoot said Mahavir Singh who belonged to the group of complainant and pursuant to the said exhortation A-1 shot said Mahavir Singh with a 12 bore gun which shot hit him on the back of his neck consequent to which Mahavir Singh fell down dead. The incident in question according to prosecution, was witnessed by PWs.1 and 2 and PW-3 who happened to come to the place of incident immediately thereafter. The complaint in this regard was lodged in Police Station Tibi by about 10.40 a.m. on 11.6.1988, and the special report in regard to this incident actually reached the jurisdictional Magistrate at about 12 Noon on that day.

3. The investigation in the case was conducted by PW-7 and based on the evidence of PWs.1 to 3 coupled with the supporting evidence led by the prosecution, the trial court came to the conclusion that the case against A-3 to A-15 has not been established by the prosecution, hence, acquitted them, while it found A-1 guilty of an offence punishable under Section 302 and A-2 was convicted for an offence punishable under Section 302 read with 34 IPC.

4. The High Court in appeal on re-appreciation of evidence came to the conclusion that the prosecution has failed to establish its case even against these accused persons, hence, allowed the appeal, setting aside the judgment of the trial court.

5. Mr. Alok Bachawat, learned counsel appearing for the appellant-State, contended that the High Court committed an error in coming to the conclusion that PWs.1 and 2 could not have witnessed the incident in question. According to him, these two witnesses (PWs. 1 and 2) who had gone to see the brother of the deceased who was injured in a previous incident, were on their way-back from the hospital along with the deceased when the deceased was attacked by respondent No.1 at the instance of respondent No.2, because the deceased was the brother of the said Surendra Singh and a party man of their political rival. Learned counsel also submitted that the court below erred in coming to the conclusion that the complaint in question was filed belatedly after due deliberations. He also challenged the finding of the High Court which held the place of incident as projected by the prosecution has not been established.

6. Mr. Sushil Kumar, learned senior counsel appearing for the respondents, supported the judgment of the High Court.

7. From a perusal of the judgment of the High Court, it is seen that the High Court has allowed the appeal on following grounds:

(i) Presence of PWs.1 and 2 at the place of incident is doubtful;

(ii) Though admittedly deceased was bleeding profusely and he was carried by PWs.1 and 2 to the hospital their clothes were not blood-stained;

(iii) The version of PWs.1 and 2 as to the nature of attack is contrary to medical evidence and there is a serious doubt in regard to the place of occurrence;