if one of accused is acquitted, the same reasoning is apply to the other accused, in the absence other material evidence

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NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1779 OF 2019
[Arising out of SLP (Crl) No. 8410 of 2016]
Jodhraj & Anr. .. Appellant(s)
Versus
State of Rajasthan .. Respondent(s)
WITH
CRIMINAL APPEAL NO.1780 OF 2019
[Arising out of SLP (Crl) No. 5350 of 2017]
J U D G M E N T
M. R. Shah, J.
Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 19.01.2016 passed by the High Court of
Judicature for Rajasthan, Jaipur Bench in DB Criminal Appeal No.
549 of 2012 by which the High Court has confirmed the conviction
of the appellants herein – original Accused Nos. 1 and 12 for the
offences punishable under Section 302 r/w Section 149 of the IPC,
the original Accused have preferred the present appeal.
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  1. By the impugned Judgment and Order, the High Court has
    acquitted the respondent herein Bhanwar Lal ­ Original Accused
    No. 3. Therefore, the State has preferred an appeal against his
    acquittal.
  2. The case of the prosecution is that on 22.5.2005 in the night
    at 9.30 P.M., in the revenue estate of village Kadiayavan, 14
    persons namely Jodhraj s/o Mathura Lal, Hemraj s/o Birdhi Lal,
    Bhanwar Lal s/o Mathura Lal, Mathura Lal s/o Baldev, Dwarka Lal
    s/o Ram Narayan, Dev Kishan s/o Ram Narayan, Prakash @ Om
    Prakash s/o Birdhi Lal, Naval @ Naval Kishore s/o Birdhi Lal, Badri
    Lal s/o Kanwar Lal, Ram Prasad s/o Narayan @ Ram Narayan,
    Prabhu Lal s/o Bridhi Lal, Jagdish Prasad s/o Mathura Lal, Ram
    Dayal s/o Ram Narayan and Pooran Mal s/o Ram Narayan,
    constituted unlawful assembly and caused injuries to Hariram, as a
    result of which, on the intervening night of 22nd May and 23rd May
    of 2005, Hariram died.
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    3.1 That all the accused came to be tried by the Learned Trial
    Court for the offences punishable under Sections 147, 148,
    323/149, 324/149, 326/149, 3/2 r/w 149 and 379 of the IPC.
    3.2 To prove the case, the prosecution examined in all 18
    witnesses including PW2 Om Prakash and PW3 Ram Dayal – so
    called eye­witnesses. The prosecution also brought on record the
    documentary evidence such as injury report relating to deceased
    Hari Ram. In the Injury Report, the following injuries were found
    on the deceased Hari Ram:
    “(i) abrasion 1 cm X 1 cm, right side of forehead,
    simple, blunt.
    (ii) Incised wound, 7 cm X 1cm, muscle deep,
    right side of neck, obliquely, simple, sharp.
    (iii) Incised wound, 20cm X 7 cm, intestine
    coming out, anterior on abdomen, longitudinal,
    grievous and dangerous to life, sharp.”
    3.3 Upon appreciation of evidence, the Learned Trial Court
    convicted five accused – Jodhraj, Bhanwar Lal, Dwarka Lal, Jagdish
    Prasad, Pooran Mal for the offences under Sections 148, 302/149
    and 379 IPC and acquitted rest of the accused by giving them
    benefit of doubt. The Learned Trial Court imposed punishment for
    life so far as the convicted accused are concerned.
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    3.4 Feeling aggrieved and dissatisfied with the Judgment and
    Order dated 11.05.2012 passed by the Learned Trial Court, the
    convicted accused preferred appeal before the High Court. Against
    the order of acquittal of some of the accused, the State also
    preferred an appeal before the High Court. By the impugned
    Judgment and Order, the High Court has acquitted Original
    Accused No. 3 – Bhanwar Lal by giving him benefit of doubt, not
    believing the deposition of very PW2 and PW3. However, at the
    same time, relying upon the deposition of PW2 and PW3, the High
    Court has confirmed the conviction of the appellants herein –
    Jodhraj and Jagdish Prasad – original Accused Nos. 1 and 12.
    3.5 Being aggrieved and dissatisfied with the impugned Judgment
    and Order passed by the High Court confirming their conviction,
    original Accused Nos. 1 and 12 – Jodhraj and Jagdish Prasad have
    preferred the present Appeal. Against the order of acquittal passed
    by the High Court acquitting the accused Bhanwar Lal, the State
    has also preferred the appeal. Both the appeals are heard together.
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  3. Learned Counsel appearing on behalf of the appellants –
    convicts Jodhraj and Jagdish Prasad has vehemently submitted
    that in the facts and circumstances of the case, the High Court has
    materially erred in confirming the conviction of the appellants.
    4.1 It is vehemently submitted by the Learned Counsel appearing
    for the appellants­convicts that the High Court has confirmed the
    conviction of the appellants solely relying upon the deposition of
    PW2 and PW3. It is submitted that the statements of PW2 and PW3
    under Section 161 of the Cr.P.C. were recorded after 18 days. The
    statements made by PW2 and PW3 were in exaggeration. It is
    submitted that the grounds on which Bhanwar Lal and others came
    to be acquitted, namely, not believing the deposition of PW2 and
    PW3, the same shall be applicable to the appellants also. It is
    submitted that therefore no reliance can be placed upon the
    deposition of PW2 and PW3 so far as the appellants/accused are
    concerned. It is submitted that except the deposition of PW2 and
    PW3, the High Court has not relied upon and/or considered any
    other evidence.
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  4. Learned Counsel appearing on behalf of the State has
    vehemently submitted that even the High Court has committed a
    grave error in acquitting Bhanwar Lal.
    5.1 It is submitted by the Learned Counsel appearing on behalf of
    the State that Injury No.3 was attributed to Accused – Jagdish
    Prasad which proved to be fatal. It is submitted that prior incident
    has been proved from the deposition of PW2 – Om Prakash. It is
    further submitted that PW2 in his deposition viz. the eye­witness of
    the occurrence has specifically attributed Injury No. 3 to Jagdish
    Prasad. It is submitted that to that extent the deposition of PW 2 is
    reliable and believable and therefore the Trial Court as well as the
    High Court have rightly convicted Jagdish Prasad. It is submitted
    that even another Accused – Jodhraj has also participated in the
    incident and Injury No.2 was attributed to him and therefore he has
    been rightly convicted by the Learned Trial Court and confirmed by
    the High Court.
  5. Learned Counsel appearing on behalf of the acquitted accused
    – Bhanwar Lal has supported the impugned Judgment and Order
    passed by the High Court acquitting Bhanwar Lal. It is submitted
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    that cogent reasons have been given by the High Court while
    acquitting Bhanwar Lal and, therefore, the acquittal of Bhanwar Lal
    is not required to be interfered with.
  6. Heard the Learned Counsel for the respective parties at length.
    We have gone through the entire evidence on record and the
    Judgment and Order passed by the Learned Trial Court as well as
    the impugned Judgment and Order passed by the High Court.
    At the outset, it is required to be noted that the Learned Trial
    Court convicted five accused out of 14 accused who came to be
    tried for the offences under Sections 148, 302/149, 379 of the IPC.
    The prosecution heavily relied upon the deposition of PW2 and PW3
    who claimed to be the eye­witnesses. The prosecution also relied
    upon the so­called dying declaration; however, the dying declaration
    has not been believed. In an appeal, the High Court has further
    acquitted another Accused Bhanwar Lal on the ground that the
    statement of PW2 Om Prakash and the statement of PW3 Ram
    Dayal under Section 161 of the Cr.P.C. were recorded after a period
    of 18 days and that the statement of Ram Dayal was exaggerated
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    and more and more persons of the family were tried to be
    implicated. Therefore, the High Court was of the opinion that
    recording the statement under Section 161 Cr.P.C. of Om Prakash
    PW2 and Ram Dayal PW3, leaves no doubt that both the witnesses
    took benefit of delay and for the three injuries on the person of the
    deceased Hariram, out of which one was abrasion, the witnesses
    have resorted to implicate 14 accused. Thus, the blemish on the
    part of the witnesses, calls upon us to sift grain from the chaff.
    Thus, the High Court did not accept the deposition of PW2 and PW3
    so far as the accused Bhanwar Lal is concerned. However, at the
    same time, relying upon the statement of very two witnesses PW2
    and PW3, the High Court has confirmed the conviction of the
    Appellants – Jodhraj and Jagdish Prasad. Therefore, considering
    the facts and circumstances of the case, we are of the opinion that
    if the deposition of PW2 and PW3 are not reliable qua one of the
    accused on the grounds stated hereinabove and one of the accused
    came to be acquitted by giving benefit of doubt, the same benefit
    ought to have been given to the other accused also, unless there is
    some further material/evidence against the other accused. As
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    observed hereinabove, except relying upon the deposition of PW2
    and PW3, there is no other evidence implicating the appellantsAccused convicts. Under the circumstances, in the absence of any
    further evidence implicating the accused­convicts, the High Court
    has materially erred in confirming the conviction of the appellant
    solely relying upon the deposition of PW2 and PW3 whose
    deposition has been doubted by the High Court and not relied upon
    by the High Court so far as one of the accused is concerned, the
    same reasoning should be applied in the appellants’ case also which
    weighed with the High Court while acquitting Bhanwar Lal. So far
    as the acquittal of Bhanwar Lal is concerned, we are in complete
    agreement with the view taken by the High Court. Cogent reasons
    have been given by the High Court for not believing the deposition
    of PW2 and PW3.
  7. In view of the reasons stated hereinabove, the appeal preferred
    by accused Jodhraj and Jagdish Prasad is hereby allowed. The
    impugned Judgment and Order passed by the High Court and the
    Judgment and Order passed by the Trial Court convicting them for
    the offences under Sections 302/149 IPC are hereby quashed and
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    set aside and both of them are acquitted for the offences for which
    they were tried, by giving them benefit of doubt. The accused be
    set at free forthwith, if not required in any other case. The appeal
    preferred by the State challenging the impugned Judgment and
    Order passed by the High Court acquitting the accused – Bhanwar
    Lal is hereby dismissed.
    …………………………..J.
    (ASHOK BHUSHAN)
    …………………………..J.
    (M. R. SHAH)
    New Delhi,
    November 29, 2019.