[2025:RJ-JP:7091-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Appeal No. 1099/2002 State of Rajasthan ----Appellant Versus 1. Akil Khan @ Pintu son of Sattar Khan, Resident of Vigyan Nagar, Kota 2. Rais alias Bhuriya son of Jameel Rehman, Resident of Chatrapura Kachchi Basti, Vigyan Nagar, Kota 3. Allu alias Aleem son of Ajeez Khan, Resident of Sanjay Gandhi Nagar, Kota 4. Chagan alias Sandeep Sharma son of Omprakash, Resident of Vigyan Nagar, Kota ----Respondents For Appellant(s) : Mr. Sudesh Kumar Saini, Addl. GA & Mr. Vivek Sharma, Addl. GA with Mr. Gaurav Gupta, Asstt. GA & Ms. Neha Goyal For Respondent(s) : None present HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA HON'BLE MR. JUSTICE BHUWAN GOYAL Judgment JUDGMENT RESERVED ON : 18/02/2025 JUDGMENT PRONOUNCED ON : 20/02/2025 (PER BHUWAN GOYAL J.) 1. This is criminal appeal under Section 378(i)(iii) of the Code of Criminal Procedure, 1973 filed by the appellant-State against Judgment and Order dated 09.05.2002 passed by Additional Sessions Judge No. 1 (Fast Track), Kota in Sessions Case No. 5/2002, vide which accused-respondent No. 1 - Akil Khan @ Pintu was acquitted for the offences under Sections 302/34, 307/34, [2025:RJ-JP:7091-DB] (2 of 7) [CRLA-1099/2002] 324/34 & 323 of I.P.C., accused-respondent No.2 - Rais @ Bhuriya was acquitted for the offences under Sections 302, 307, 324/34 & 323/34 of I.P.C., accused-respondent No. 3 - Allu @ Aleem was acquitted for the offences under Sections 302/34, 307/34, 324/34, 323 or 323/34 of I.P.C. and accused-respondent No. 4 - Chagan @ Sandeep was acquitted for the offences under Sections 302/34, 307/34, 324 & 323/34 of I.P.C. 2. Facts of the case in short are that on 29.07.2001, injured Jakir Ali (P.W. 3) gave parcha bayan (Ex.P/3) to the police to the effect that when he and Mukesh were going towards Sabji Mandi, Vigyan Nagar and reached in the street behind Government School, Chagan, Bhuriya, Allu and Girish @ Pintu armed with weapons, surrounded and beaten them. Bhuriya inflicted sword blow on his head, Girish inflicted pipe blow on thigh of his left leg. When Mukesh started running then, Allu and Girish caught him and Bhuriya inflicted 3-4 blows on his head and Chagan inflicted Katar blow in his stomach but same was stopped by Mukesh from his hands, due to which he sustained injuries on his thumbs and hand claws of both hands. Mukesh fell down. Yusuf and Shejaad who were coming behind, saw the incident. Mukesh was taken and admitted in the hospital. On the basis of said parcha bayan, F.I.R. No.374/2001 (Ex.P/10) was registered at Police Station Vigyan Nagar, Kota for the offences under Sections 341, 307 & 34 of I.P.C. and investigation was commenced. During investigation, injured Mukesh died, therefore, police added Section 302 of I.P.C. in the matter and after conclusion of investigation, submitted charge-sheet against accused-respondents for the offences under [2025:RJ-JP:7091-DB] (3 of 7) [CRLA-1099/2002] Sections 302, 307, 341 & 34 of I.P.C. and Section 3 of S.C./S.T. Act. The trial court framed charges against accused-respondent No. 1 - Akil Khan @ Pintu for the offences under Sections 302/34, 307/34, 324/34 & 323 of I.P.C., accused-respondent No.2 - Rais @ Bhuriya for the offences under Sections 302, 307, 324/34 & 323/34 of I.P.C., accused-respondent No. 3 - Allu @ Aleem for the offences under Sections 302/34, 307/34, 324/34 & 323 of I.P.C. and accused-respondent No. 4 - Chagan @ Sandeep for the offences under Sections 302/34, 307/34, 324 & 323/34 of I.P.C. and trial was commenced. After conclusion of trial, the trial court passed judgment and order dated 09.05.2002, whereby accused- respondents were acquitted of aforesaid offences. Hence, this criminal appeal has been preferred by the appellant-State with a prayer to convict accused-respondents for the offences alleged against them. 3. Heard learned Public Prosecutor. 4. Learned Public Prosecutor has submitted that prosecution has produced cogent evidence on record and established commission of offence of murder of the deceased Mukesh by accused-respondents beyond all reasonable doubt. The recoveries of weapons of offence i.e. Katar, iron pipe and sword were also made from the possession of accused Chagan alias Sandeep, Akil Khan @ Pintu and Rais @ Bhuriya, respectively. But the trial court erred in not believing testimony deposed by the prosecution witnesses coupled with recovery of weapons and wrongly acquitted accused-respondents for offences alleged against them without any cogent reasons. He has, therefore, prayed that this [2025:RJ-JP:7091-DB] (4 of 7) [CRLA-1099/2002] criminal appeal may be allowed and accused-respondents may be convicted and sentenced for the offences alleged against them suitably. 5. Despite service, no one was present on behalf of the accused-respondents. 6. We have considered the arguments and have gone through impugned judgment and record of the trial court. 7. In the instant case, the prosecution was launched on the basis of parcha bayan of injured Jakir Ali, wherein it was stated that when he along with Mukesh was going towards Sabji Mandi, Vigyan Nagar, accused-respondents Chagan, Bhuriya, Allu and Girish @ Pintu armed with weapons, surrounded and beaten them. and this incident was witnesses by Yusuf and Shehjaad. A perusal of the statement of star prosecution witness i.e. injured Jakir Ali (P.W. 3) reveals that he in his cross-examination has stated that portion A to B and C to D of his police statement Ex.D/1 was wrongly written. He became unconscious, therefore, he did not know as to who brought Mukesh. He had stated that when they were going towards Sabji Mandi, accused suddenly came from back side and attacked upon them. He had admitted that injury on his head was inflicted from back side and after causing injury, he became unconscious. He had also admitted that after that, he did not remember as to which accused hit whom and how many times. He had also admitted that after he gained consciousness in the hospital, he was told names of accused by his brother and friends. He himself could not identify them. P.W. 4 - Yusuf in his cross-examination had admitted that when he reached the place [2025:RJ-JP:7091-DB] (5 of 7) [CRLA-1099/2002] of incident after hearing noise, Mukesh was lying in a pool of blood and people gathered there. The persons who had beaten Mukesh were not present there and fled away. He had admitted that people were talking that 3-4 persons beaten them with sword, Katar etc. He could not tell names of those people who beaten them. P.W. 7 - Shehjaad in his examination-in-chief had stated that it was sunday; at 4.00 - 5.00 O'clock in evening, he and his wife were going to visit a garden. When he returned from garden, he heard that someone had been murdered near Chatrapura pond. Jakir was injured. He went to the hospital to meet Jakir, who was unconscious. Many of his friends were there but he did not enquire from anyone there. Thus, from the statements of these witnesses, prosecution story that accused-respondents murdered deceased Mukesh and caused injuries on the person of injured has not been established beyond all reasonable doubt. 8. So far as recovery of weapons of offence is concerned, a Katar was recovered vide Ex.P/9 at the instance of accused - Chagan alias Sandeep in the presence of witnesses Mahendra (P.W. 9) & Babloo (P.W.10), an iron pipe was recovered vide Ex.P/11 at the instance of accused Akil Khan @ Pintu in the presence of witnesses Nijamuddin (P.W. 12) & Harish (P.W.14) and an iron sword was recovered vide Ex.P/21 at the instance of accused - Rais @ Bhuriya in the presence of witnesses Deendayal & Ram Singh. A perusal of the statement of P.W. 9 - Mahendra, who is witness to recovery of Katar, reveals that he in his cross- examination has stated that police showed his Katar. They came to his house to call him saying that they were recovering a Katar. [2025:RJ-JP:7091-DB] (6 of 7) [CRLA-1099/2002] His signature on Ex.P/9 was obtained in the police station. P.W. 10 Bablu, who is another witness to recovery of Katar, in his cross-examination had stated that he was taken to police station, where he saw Katar but he did not know said Katar belonged to whom. He was informed nothing by the police. P.W. 12 - Nijamuddin, who is witness to recovery of iron pipe, in his examination-in-chief had stated that no proceedings were carried out by the police in his presence. Police personnel called him in the night at 10 O'clock. His thumb impression on Ex.P/11 is at mark 'x'. When he put his thumb impression, proceedings were being carried out. P.W. 14 - Harish Kumar, who is another witness to recovery of iron pipe, has stated in his examination-in-chief that police did not come to carry out proceedings in his presence. In the cross-examination, he has stated that he did not remember as to why and where his signature was obtained. He did not read the document and signed it without reading. No recovery was affected in his presence. So far as witnesses to recovery of sword viz. Deendayal and Ram Singh are concerned, they have not even been produced by the prosecution in the witness box. It is pertinent to mention here that a perusal of the recovery memos (Ex.P/9, Ex.P/11 & Ex.P/21) reveals that there was no mention of any bloodstains found on the so-called weapons of offence. Even, no F.S.L. Report has been produced on record by the prosecution to prove that so-called weapons were used by accused in the commission of alleged crime and in absence thereof, it cannot be established that recovered weapons were used in the commission of offence in the present case. Thus, from the above evidence [2025:RJ-JP:7091-DB] (7 of 7) [CRLA-1099/2002] available on record, the prosecution has not been able to prove recovery of weapons of offence at the instance of accused- respondents so also prosecution story beyond all reasonable doubt. 9. In view of above discussion, this Court finds no ground to interfere in the well reasoned judgment and order passed by the trial court. 10. Accordingly, present appeal is dismissed. The Judgment and Order dated 09.05.2002 passed by the trial court is affirmed. 11. The record of the learned trial court be sent back forthwith. (BHUWAN GOYAL),J (NARENDRA SINGH DHADDHA),J INDER