The prosecution must prove the accused's guilt beyond a reasonable doubt, and acquittal is warranted where evidence is inconsistent or lacks credibility.

JUDGMENT :

BHUWAN GOYAL J.

1. D. B. Criminal Leave to Appeal No. 866/2024 has been filed under Section 419 (i)(iii) of the Bhartiya Nagarik Suraksha Sanhita, 2023 by the appellant - State, whereas, D.B. Criminal Appeal No.300/2023 has been filed under Section 3 72 of Cr.P.C. by the appellant-complainant - Dinesh assailing impugned Judgment and Order dated 24.08.2023 passed by Additional Sessions Judge No.1, Bayana, District Bharatpur in Sessions Case No.36/2021 (15/2012) titled as "State of Rajasthan vs. DAuji @ Dadu & ors.", vide which accused-respondents viz. Hansa, Veero, Atar Singh @ Atara Gurjar, Sahab Singh @ Sabo, Surendra and Gordhan have been acquitted for the offences under Sections 3 02 , 302/149, 341, 323/149 & 148 of the INDIAN PENAL CODE and Section 3 /25 of the ARMS ACT by extending benefit of doubt.

2. The facts of the case in short are that on 10.12.2010, complainant Dinesh (P.W. 11) submitted a written report (Ex.P/11) at Police Station Rudawal to the effect that in the intervening night of 09.12.2010 and 10.12.2010 at about 12.30 a.m., his brother Bijendra was sleeping under the tinshed of the house and other family members were sleeping in the rooms, when, after consultation, Bhagmal, Gordhan, Soni alias Sohan Singh, Pritam, Darab, Sabo alias Sahab Singh, Jagan, Ajab, Bhagwan Singh, Rajesh, Jagan, Ramsahay and 10-12 other masked persons, armed with guns, pachphera, katta and sticks, came with the intention of killing Bijendra. Gordhan and Darab had Pachphera in their hands. Bhagmal had a 12 bore gun, Ramsahay and Jagan had guns, Jagan had a katta, Sabo had a stick, Pritam had a Pachphera, Jagan, Bhagwat and Bhagwan Singh had sticks in their hands. As soon as they came, they called out to Bijendra, on which Bijendra came out of tinshed into courtyard and Gordhan fired a shot from Pachphera to kill Bijendra. As soon as Gordhan fired, everyone started firing, out of which one of the bullets hit Bijendra near his shoulder, due to which everyone got scared and kept watching the whole scene from inside their rooms through the windows and the jungalas. Bulbs were burning in the courtyard outside. In the light of which, these people were clearly visible to them. This incident was witnessed by Buddhi, Ramprasad, Jagan etc. When the incident was happening, they informed Rudawal Police Station through mobile. By the time police arrived, accused had already left. Bijendra was brought to Bayana for treatment, from where he was referred to Bharatpur but he died on the way before reaching Bharatpur. This incident was committed due to enmity etc.

3. On the basis of said written report, F.I.R. No.334/2010 was registered for the offences under Sections 147 , 148, 149, 323, 341 & 302 of I.P.C. After investigation, police submitted charge-sheet against accused Dauji, Gajra and Dhundhi for the offences under Sections 147 , 148, 149, 323, 341 & 302 of I.P.C. and Section 3 /25 of the ARMS ACT before the Judicial Magistrate, Bayana, District Bharatpur but investigation qua accused Hansa, Veero, Atar Singh, Sabo @ Sahab Singh, Surendra and two other culprits who were members of Prem Singh Dacoit was kept pending under Section 173(8) of Cr.P.C.

4. The concerned Judicial Magistrate took cognizance of aforesaid offences against Dauji, Gajra and Dhundhi and committed the case to the court of Sessions, from where it was transferred to the court of Additional Sessions Judge No. 1, Bayana, District Bharatpur (for short 'trial court' hereinafter). The charges were framed against accused Dauji and Gajra for the offences under Sections 3 02 /149, 148, 341, 323/149 of I.P.C. and accused Dhundhi for the offences under Sections 3 02 /149, 341