JUDGMENT :

1. In 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 Court, for the safety of all concerned.

2. The incident is of 07.08.1988 which happened near Bhati Choraha Ratanada, Jodhpur at about 10:00 p.m. when it is alleged that the jeep of the complainant party pertaining to Excise Department was attacked by another jeep allegedly consisting of Ramdeen, Gordhan Ram and Babu Lal. There was an allegation that the accused persons assaulted the complainant with Dharias and Lathis. The charge-sheet was filed after investigation against five persons.

3. Mr. Dhirendra Singh, learned Senior Counsel assisted by Mr. R.K. Bishnoi and Ms. Laxmi appearing on behalf of appellant submit that though Gordhan Ram was facing the similar allegations but the learned trial court has after due adjudication acquitted him. Learned Senior Counsel further submits that in the investigation itself, Deva and Harlal, who were included earlier, were excluded when the charge-sheet was filed. It is also averred that Birbal Ram and Babu Lal, who are the other accused, were charge-sheeted and died before passing of the judgment.

4. Learned Senior Counsel for the appellant has drawn attention of this Court to the testimony of PW-5, in which, he has deposed that their jeep was attacked and a forceful collusion was caused by the accused persons, who were about 6 to 7 persons and after such collusion having been caused, Mukna Ram along with the others attacked the complainant party with Dharias and Lathis. The deposition includes that Mukna Ram over ran the PW-5 with the jeep and the jeep was run over his neck and he suffered numerous injuries.

5. Learned Senior Counsel for the appellant has pointed out that there is nothing in the deposition so made, which can render the case of the present accused appellants distinguishable from that of similarly situated person Goverdhan Ram, who was acquitted by the learned trial court itself.

6. Learned Senior Counsel for the appellant has further drawn attention of this Court towards the categorical reiteration by the injured witness PW-5 Richpal Singh that he was hit by Dharia by Birbal, Ramdeen and Gordhan as per his previous statement.

7. Learned Senior Counsel for the appellant has, thereafter, drawn attention of this Court towards the statement of PW-4, who is a Doctor. PW-4, in his statement, has deposed about the 19 injures caused of which the grievous injury was the 19th injury. The doctor in his cross-examination has categorically deposed that the injury is probably not caused by running over of the jeep. He has further reiterated that the injury No.19 was not external but had to be treated by the concerned surgeon due to tenderness and pain. The doctor has specifically opined that the wound which has been caused in the present case is a lacerated wound.

8. Learned Senior Counsel for the appellant submits that there is a consistency of two issues, which has been primarily deposed by the prosecution witnesses; one is an attacked by Dharia and another running over of the jeep and both the aspects have been seriously contradicted by the doctor, who has been examined as PW-4, as he rules out any injury caused by Dharia and also rules out the jeep having been over run the neck of the injured persons.

9. Learned Senior Counsel for the appellant has taken this Court through the Ex.-5, which is the injury report, in which, all the injures are simple in nature except for certain injuries where there is an advise of x-ray and regarding injury No.19, it is only tenderness over the neck, however, subsequently the same was subjected to surgery and medical treatment.

10. Learned Senior Counsel for the appellant further submits that once the Gordhan Ram, who has been consistently named by the PW-5, has been acquitted then the prosecution story and deposition of PW-5 comes into the shadow of doubt.

11. Learned Senior Counsel for