The court upheld the acquittal of two accused due to insufficient evidence while modifying the conviction of another from a higher to a lesser charge, emphasizing the presumption of innocence and the need for credible witness testimony.

ORDER :

1. Criminal Appeal 541 of 1996 has been filed by the State of Rajasthan to challenge acquittal of Sattar Khan and Mumtaj Khan recorded in Sessions Case No. 11 of 1995.

2. Babu Khan @ Salim, who is the informant, had filed Criminal Revision No.307 of 1996 which was later on converted into Criminal Appeal No. 277 of 2024. He has also challenged the judgment dated 10^th July 1996 passed in Sessions Case No.11 of 1995 for two reasons viz (i) to challenge the acquittal of Sattar Khan and Mumtaj Khan and (ii) to challenge conviction of Rahman Khan for a lesser offence and not under section 302 of Indian Penal Code.

3. Rahman Khan is also aggrieved by the judgment of conviction under section 304 Part-I of the Indian Penal Code and award of sentence of rigorous imprisonment for seven years and a fine of Rs.10,000/-. He had filed S.B. Criminal Appeal No.351 of 1996 which has been tagged along with the aforementioned two cases and are heard together.

4. On the basis of Parcha Bayan of Babu Khan @ Salim given around 3:50 PM on 23^rd November 1994, a crime was registered vide FIR no. 262 of 1994 under sections 302, 307, 324, 341, 323 read with section 34 of the Indian Penal Code and a charge-sheet was laid against Rahman Khan and Sattar Khan under sections 302, 307, 323, 324 and 341 read with section 34 of the Indian Penal Code. Mumtaj Khan was also sent up for trial for committing the offence under sections 341, 323 and 324 of the Indian Penal Code.

5. Later on, charge under sections 302/34, 324 and 341 of the Indian Penal Code was framed against Rahman Khan and Sattar Khan also faced the trial on the charge under sections 302/34 and 341 of the Indian Penal Code. Against the co-accused Mumtaj Khan, the trial Court framed charge under sections 341, 323 and 324 of Indian Penal Code. These accused persons denied the charges and claimed trial and in support of their defence produced four witnesses. Whereas, out of 11 witnesses produced by the prosecution, Babu Khan son of Mushraf Khan and Babu @ Salim son of Sadulleh Khan were projected as star witnesses.

6. In the trial, PW-3 Navratanmal did not support the prosecution case against the accused persons and he was declared hostile. Two other important witnesses, namely, Saleem and Irfan Ali were not produced by the prosecution in the Court and on that basis a plea was raised that the prosecution has suppressed the real version of the occurrence. This was also a ground urged on behalf of the accused-persons that no independent witness came forward to depose in support of the prosecution case though the place of occurrence was a busy market place.

7. The trial Judge after having carefully examined the testimony of PW-1 and PW-2 arrived at a conclusion that the evidence tendered by the prosecution witnesses against Sattar Khan and Mumtaj Khan were not sufficient to hold that they were involved in the crime and, that, they shared common intention to commit murder of Ali Mohammad.

8. The learned Additional District and Sessions Judge at Churu recorded the following reasons for acquitting Sattar Khan and Mumtaj Khan of the criminal charges framed against them:-

“First of all, it will be necessary to examine the evidence that has come against accused Mumtaj. The written statement Exhibit P4 has been registered by Babu Khan alias Salim PW2. In which it is only written that “At around 3 o'clock when we reached a little ahead of Jagdish Bhaleriwala's shop in the market ahead of the Safed Ghantaghar (white clock tower), Rehman was sitting behind on a scooter. Sattar was driving the scooter. Mumtaj and Nagaraj also came there. As soon as they arrived, they attacked and started beating, due to which Rahman stabbed Ali Mohammad in the chest, blood started coming out.” It is not written anywhere in this that Mumtaj said 'hit'. The police statements of both the witnesses, Exhibit D1 and Exhibit D2, have been perused. It is not written anywhere in this that Mumtaj took part in the fight or said 'hit'. Only Mumta