IMPORTANT POINT
If deposition of eye-witnesses are not reliable qua one of accused and one of accused came to be acquitted by giving benefit of doubt, same benefit ought to have been given to other accused also unless there is some further material/evidence against other accused.

JUDGMENT :

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 19.01.2016 passed by the High Court of Judicature for Rajasthan, Jaipur Bench in DB Criminal Appeal No. 549 of 2012 by which the High Court has confirmed the conviction of the appellants herein – original Accused Nos. 1 and 12 for the offences punishable under Section 302 r/w Section 149 of the IPC, the original Accused have preferred the present appeal.

2. By the impugned Judgment and Order, the High Court has acquitted the respondent herein Bhanwar Lal Original Accused No. 3. Therefore, the State has preferred an appeal against his acquittal.

3. The case of the prosecution is that on 22.5.2005 in the night at 9.30 P.M., in the revenue estate of village Kadiayavan, 14 persons namely Jodhraj s/o Mathura Lal, Hemraj s/o Birdhi Lal, Bhanwar Lal s/o Mathura Lal, Mathura Lal s/o Baldev, Dwarka Lal s/o Ram Narayan, Dev Kishan s/o Ram Narayan, Prakash @ Om Prakash s/o Birdhi Lal, Naval @ Naval Kishore s/o Birdhi Lal, Badri Lal s/o Kanwar Lal, Ram Prasad s/o Narayan @ Ram Narayan, Prabhu Lal s/o Bridhi Lal, Jagdish Prasad s/o Mathura Lal, Ram Dayal s/o Ram Narayan and Pooran Mal s/o Ram Narayan, constituted unlawful assembly and caused injuries to Hariram, as a result of which, on the intervening night of 22nd May and 23rd May of 2005, Hariram died.

3.1 That all the accused came to be tried by the Learned Trial Court for the offences punishable under Sections 147, 148, 323/149, 324/149, 326/149, 3/2 r/w 149 and 379 of the IPC.

3.2 To prove the case, the prosecution examined in all 18 witnesses including PW2 Om Prakash and PW3 Ram Dayal – so called eyewitnesses. The prosecution also brought on record the documentary evidence such as injury report relating to deceased Hari Ram. In the Injury Report, the following injuries were found on the deceased Hari Ram:

“(i) abrasion 1 cm X 1 cm, right side of forehead, simple, blunt.

(ii) Incised wound, 7 cm X 1cm, muscle deep, right side of neck, obliquely, simple, sharp.

(iii) Incised wound, 20cm X 7 cm, intestine coming out, anterior on abdomen, longitudinal, grievous and dangerous to life, sharp.”

3.3 Upon appreciation of evidence, the Learned Trial Court convicted five accused – Jodhraj, Bhanwar Lal, Dwarka Lal, Jagdish Prasad, Pooran Mal for the offences under Sections 148, 302/149 and 379 IPC and acquitted rest of the accused by giving them benefit of doubt. The Learned Trial Court imposed punishment for life so far as the convicted accused are concerned.

3.4 Feeling aggrieved and dissatisfied with the Judgment and Order dated 11.05.2012 passed by the Learned Trial Court, the convicted accused preferred appeal before the High Court. Against the order of acquittal of some of the accused, the State also preferred an appeal before the High Court. By the impugned Judgment and Order, the High Court has acquitted Original Accused No. 3 – Bhanwar Lal by giving him benefit of doubt, not believing the deposition of very PW2 and PW3. However, at the same time, relying upon the deposition of PW2 and PW3, the High Court has confirmed the conviction of the appellants herein – Jodhraj and Jagdish Prasad – original Accused Nos. 1 and 12.

3.5 Being aggrieved and dissatisfied with the impugned Judgment and Order passed by the High Court confirming their conviction, original Accused Nos. 1 and 12 – Jodhraj and Jagdish Prasad have preferred the present Appeal. Against the order of acquittal passed by the High Court acquitting the accused Bhanwar Lal, the State has also preferred the appeal. Both the appeals are heard together.

4. Learned Counsel appearing on behalf of the appellants – convicts Jodhraj and Jagdish Prasad has vehemently submitted that in the facts and circumstances of the case, the High Court has materially erred in confirming the conviction of the appellants.

4.1 It is vehemently submitted by the Learned Counsel appearing for the appellants-convicts that the High Court has confirmed the conviction of