JUDGMENT :

1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This Criminal Appeal under Section 374 Cr.P.C. has been preferred with the following prayer:-

“It is, therefore, respectfully prayed that this appeal may kindly be allowed and the accused appellant may be acquitted of all the charges leveled against them.”

3. At the outset, learned counsel for the appellants submits that the appeal against appellant no. 2, Peera Ram, stands abated, as on 05.02.2020, and that the above prayed for reliefs be granted to the appellant no. 1, Kika Ram.

4. Learned counsel for the appellant submits that the present criminal appeal has been against the judgment, dated 30.08.1993, passed by the learned Sessions Judge, Pali, in Sessions Case No. 123/1990 by which the appellant was convicted for offences under Section 304 Part II I.P.C. and was awarded a sentence of 5 years R.I.

5. Learned counsel for the appellant submits that an F.I.R. was lodged by complainant Moti S/o Bhuta Meghwal, at Police Station Guda Endla on 16.08.1990 at 09:15 a.m. stating therein that at about 07:30 a.m., while Moti was home, one Smt. Gajra W/o Poona came and informed that whilst her husband had gone to relieve himself in the morning, Peera and Lala @ Vora armed with lathis and Kika armed with ‘Dhariya’ followed him. It was further stated that Peera’s family and their family had a long standing feud, and that on the day of he incident in question they threatened his life and began to assault him with the aforementioned weapons, and that when her husband began wailing and screaming, the villagers rushed to the scene and found her husband lying on the ground, with his hands bleeding. Subsequently, when the investigation was launched against the accused persons, and charges were framed against hem under Sections 323 and 341 I.P.C. but since the victim-husband, passed away during said investigation, the charges against the accused were modified to the offence under Section 302 I.P.C. Subsequently, when the case was tried by the learned Sessions Court, the appellants, Peera Ram and Kika Ram were convicted under Section 304 Part II I.P.C. while the other accused, Lala @ Vora was acquitted from all charges levelled against him.

5.1 Learned counsel further submits that the F.I.R. against the accused was recorded after a considerable delay and that it was filed only after visiting the site where the incident in question took place, and that this calls into question the veracity of the F.I.R. And that furthermore, although the eye witnesses were examined before the F.I.R. was registered, they were not named in the F.I.R. and this also casts doubt on the version of the prosecution.

5.2 Learned counsel also submits that the alleged statement given by deceased-victim, Poona Ram, under Section 161 Cr.P.C. was taken to be a dying declaration, but that, the same was not accompanied by any note of the doctor stating that the now deceased-victim, at that time was in a fit condition to give the said statement, and moreover, the same was not signed by him.

5.3 Learned counsel further submits that the learned Trial Court, on the same set of evidences, has disbelieved the witnessess in respect of the charges levelled against Vora, and acquitted him of all the charges leveled against him.

5.4 Learned counsel also submits that this, therefore, calls into question the entire version of the prosecution and that the same was given due weightage by the learned Court below, and therefore, the impugned order deserves to be quashed and set aside, as it suffers from a misreading of evidence.

5.5 Learned counsel further submits that the appellant has remained in custody for a period of about 3 months and 17 days, and that this Hon’ble Court, vide its order dated 27.09.1993 in S.B. Criminal Misc. Bail No. 332/1993 has suspended the sentence of