2009(6 )  SCR 142 STATE OF RAJASTHAN

v. MOHAN LAL AND ORS.

(Criminal Appeal No. 822 of 2003) APRIL 15, 2009

[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Heard learned counsel for the appellant-State and  

learned counsel for the respondents.

2.  Challenge  in  this  appeal  is  to  the  judgment  of  a  Division  Bench  of  the  

Rajasthan High Court, Jaipur Bench directing acquittal of the respondents who faced  

trial  for  alleged  commission  of  offence  punishable  under  Section  302  read  with  

Section 34 of the Indian Penal Code, 1860 (in short 'IPC'). Originally five persons  

faced trial and out of them two accused persons namely Moti Ram and Ramji Lal  

were acquitted by judgment of learned Sessions Judge, jhunjhunu. By the judgment  

which was impugned before the High Court, the present respondents were found  

guilty of offence punishable under Section 302 read with Section 34 of the IPC.

3.  The  prosecution  version  in  a  nutshell  that  on  4.11.1995  Balusingh  

(hereinafter referred to as the deceased) was assaulted by the present respondents  

and the two acquitted accused persons and in the process Balu Singh lost his life.  

Information was lodged by Madan Singh Yadav (PW9)  who was  the son of  the  

deceased. After investigation, charge sheet was filed and since the accused persons  

pleaded innocence, trial was held. As noted above, the present respondents were

found guilty of offence punishable under Section 302 read with Section 34 IPC. The  

convicted person preferred an appeal before the High Court which as noted above  

directed their acquittal. The High Court found the evidence of so-called eye-witness  

PW1, 2,5 and 9 to be not credible and cogent and therefore directed the acquittal.  

4. In support of the appeal learned counsel for the appellant stated that since  

four eye-witnesses were there, there evidence should not have been discarded to  

direct acquittal. Learned counsel for the respondent supported the judgment of the  

High Court submitting that the view taken by the High Court is a possible view and  

has been arrived at after analysing the evidence of eye-witness.  

5. It is to be noted that the conduct of the so-called eye-witness was absolutely  

unnatural. They did not make any effort to either save the deceased when he was  

being assaulted or when the accused persons purportedly took away the dead body  

of the deceased.

6. Though in all cases the conduct of persons would not be determinative, it  

would depend on several factors. In the present case undoubtedly four persons who  

claimed  to  have  witnessed  the  occurrence  did  not  make  any effort  to  save  the  

deceased from the assaults made by the accused persons. PW1 was the son of the  

deceased. The High Court noticed that the presence of so-called eye witnesses was  

practically was not acceptable because of the various variations in the statement  

made during investigation and made in the court.

7. The High Court found that the conduct was not only unnatural but also proved  

that their presence at the place of occurrence doubtful. The view taken by the High  

Court  is  a  plausible  one,  we  find  no  reason to  interfere  in  this  appeal  which is  

accordingly dismissed.