[2025:RJ-JP:37181-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Leave To Appeal No. 743/2024 State Of Rajasthan, Through P.p. ----Appellant Versus 1. Ram Sukh Alias Sukha Son Of Madan Lal, Resident Of Sungar, Police Station - Keshavraipatan, District - Bundi (Raj). 2. Babu Lal Son Of Mangi Lal, Resident Of Khatra Ka Bada, Police Station- Dablana, District - Bundi (Raj). 3. Ramesh Chandra Son Of Ram Kishan, Resident Of Nagonia, Police Station Khanpur, District- Jhalawar (Raj). 4. Kalyan S/o Shanti Lal, Resident Of Indra Colony, Taleda Police Station- Taleda, District - Bundi (Raj). ----Respondents For Appellant(s) : Mr. Jitendra Singh Rathore, A.G.A. with Mr. Manvendra Singh Shekhawat, Dy.G.C. For Respondent(s) : HON'BLE MR. JUSTICE INDERJEET SINGH HON'BLE MR. JUSTICE BHUWAN GOYAL JUDGMENT RESERVED ON : 12/09/2025 JUDGMENT PRONOUNCED ON : 24/09/2025 PER BHUWAN GOYAL J. : 1. The appellant – State of Rajasthan has preferred instant appeal under Section 419(i)(iii) of the Bhartiya Nagarik Suraksha Sanhita, 2023 challenging the Judgment and Order dated 06.07.2023 passed by the Additional Sessions Judge No. 2, Bundi in Sessions Case No. 151/2018 (State of Rajasthan vs. Ram Sukh @ Sukha) to the extent whereby accused-respondent Nos. 1 and 2, namely, Ram Sukh @ Sukha and Babu Lal, respectively were [2025:RJ-JP:37181-DB] (2 of 10) [CRLLA-743/2024] acquitted for offences under Sections 148, 458, 302 or 302/149 of I.P.C., accused-respondent No. 3 - Ramesh Chandra was acquitted for the offences under Sections 148, 458, 302 or 302/149 of I.P.C. and Section 3/25 of the Arms Act and accused-respondent No. 4 - Kalyan was acquitted for the offences under Sections 148, 458, 120-B & 302 or 302/149 of I.P.C. and Sections 3/25 & 5/25 of the Arms Act by extending them benefit of doubt. 2. Brief facts relevant for disposal of present appeal are that on 10.02.2018 at 4.15 a.m., complainant Mohammad Ayub (P.W. 1) submitted a written report (Ex.P/1) to the effect that his house was located in Shivaji Colony, Taleda. All the family members had taken dinner on 09.02.2018 and went to sleep at 10.00 p.m. and at 1.00 a.m., sound of breaking and knocking of the lock of their channel gate was heard. His son Asif woke up first and he told that Papa, there was a sound of knocking or breaking of the gate outside. On this, he and his son Mohammad Rahim both came out of the room but they did not see anyone. When they came near the gate, lock did not open then, all three of them came out from the back gate and saw 4-5 persons in the front lane near Mohammad Hussain Bhai's house. They shouted that the thieves came then, in the meantime, one of them fired a shot, which hit on the head of his elder son Mohammad Rahim. They fired and ran towards the fields. This incident must have taken place at 1.20 a.m. On hearing the sound, neighbourhood gathered there. They took Mohammad Rahim to Kota M.B.B.S. Hospital in Bablu Pathan's Scorpio car, from where they took him to Maitri Hospital. [2025:RJ-JP:37181-DB] (3 of 10) [CRLLA-743/2024] His son was admitted in the ICU and was unconscious. Due to darkness, they could not see their appearance etc. 3. On the basis of said written report, an F.I.R. No.56/2018 came to be registered at the Police Station Taleda, District Bundi for the offences under Sections 307, 458, 148, 149 & 34 of I.P.C. and Section 3/25 of the Arms Act and investigation was commenced. During course of investigation, injured Mohammad Rahim died during treatment, therefore, police added Section 302 of I.P.C. in the matter. After conclusion of investigation, police submitted charge-sheet against accused-respondent Nos. 1 & 2 for the offences under Sections 148, 149, 458 & 302 of I.P.C., accused respondent No. 3 - Ramesh Chand and co-accused Raju @ Rajesh @ Rajendra for the offences under Sections 148, 149, 458 & 302 of I.P.C. and Section 3/25 of the Arms Act and accused respondent No. 4 - Kalyan for the offences under Sections 148, 149, 458 & 302 of I.P.C. and Sections 3/25 & 5/25 of the Arms Act before the Judicial Magistrate Taleda, District Bundi, who took cognizance of aforesaid offences against accused-respondents and committed the case to the court of Sessions, from where it was transferred to the court of Additional Sessions Judge No. 2, Bundi (for short ‘learned trial court’ hereinafter). 4. After hearing arguments on the point of charges, trial court framed charges against accused-respondent Nos. 1 & 2 – Ram Sukh @ Sukha and Babu Lal for the offences under Sections 148, 458 or 458/149, 302 or 302 read with Section 149 of I.P.C., accused-respondent No. 3 - Ramesh Chand and co-accused Raju @ Rajendra for the offences under Sections 148, 458 or 458/149, [2025:RJ-JP:37181-DB] (4 of 10) [CRLLA-743/2024] 302 or 302 read with Section 149 of I.P.C. and Section 3/25 of the Arms Act and accused-respondent No. 4 - Kalyan for the offences under Sections 148, 458 or 458/149, 302 read with Section 149 & 120-B I.P.C. and Sections 3/25 & 5/25 of the Arms Act. The accused-respondents did not plead guilty and claimed trial. The prosecution examined as many as 35 witnesses and got exhibited documents Ex.P/1 to Ex.P/76 to prove its case. After conclusion of the prosecution evidence, accused-respondents were examined under Section 313 of Cr.P.C. and were confronted with the circumstances appearing against them in the prosecution case, which they denied and stated that prosecution evidence was false; they were innocent and had been falsely implicated in the case. The accused-respondents did not produce any oral evidence but exhibited documents Ex.D/1 to Ex.D/5 in their defence. 5. Learned trial court, thereafter, proceeded to hear arguments of the Public Prosecutor and the defence counsel, appreciated the evidence available on record and delivered impugned judgment dated 06.07.2023, acquitting accused-respondents for the offences charged against them, as stated above. Aggrieved with the same, present leave to appeal has been filed by the appellant – State before this Court. 6. Heard learned counsel for the parties. 7. Learned Public Prosecutor appearing for the appellant – State of Rajasthan has submitted that prosecution has produced cogent evidence on record and established commission of murder of deceased Mohammad Rahim by the accused-respondents. He has also submitted that recovery of weapons of offence iron pipe, iron [2025:RJ-JP:37181-DB] (5 of 10) [CRLLA-743/2024] sariya, live cartridge and country made pistol connects the accused-respondents with the crime in the present case. But the trial Court has erred in not believing testimony deposed by the prosecution witnesses and wrongly acquitted accused-respondents for alleged offences without any cogent reason. He has, therefore, prayed that this leave to appeal filed by the appellant-State may be allowed. 8. We have given our thoughtful consideration to the arguments advanced by learned counsel for the State and have gone through impugned judgment and have minutely sifted through the evidence available on record. 9. In the case in hand, as per prosecution story, accused- respondents with common objective, formed illegal assembly and armed with weapons and country made pistol entered house of the complainant with the preparation to hurt and committed house trespass at night and opened fire on Mohammad Rahim, due to which he died and this incident was witnessed by complainant and his son Aasif. In this regard, a perusal of the statement of P.W. 1 - Mohd. Ayub reveals that he in his examination-in-chief has stated that on 02.02.2018 after having dinner at 10.00 p.m., all the family members went to sleep. At around 1.00 a.m., his son Aasif heard sound of knocking on the gate and breaking the lock of the house. He woke him up and said that Papa, there was a found of breaking the lock of our channel gate. So, Aasif, Mohd. Rahim, Aarij and he came near the channel gate and tried to open the lock with the key but the lock did not open. After this, he and his son Aasif, Mohd. Rahim and Aarij also came out from the back [2025:RJ-JP:37181-DB] (6 of 10) [CRLLA-743/2024] gate and when they looked towards the left side of their house, they did not see anything in the lane. They saw 4-5 men near Mohd. Hussain's house in the lane on the right side. After this, they tried to chase them away by shouting thief-thief. They reached out 10 steps away from them when one of them fired a shot from a weapon like a country made pistol. The bullet hit his son Rahim on his head and some bullets hit his hand as well and Rahim fell down. It was dark at that time and they could not see what the others were holding. These people fired the shot and ran towards the field. He has further stated that it was getting dark at that time. He saw the faces of those people but could not see them completely. He could not identify the accused right now but his son Mohd. Asif could identify them. In his cross-examination, he has admitted that no name of accused was mentioned in his report because he did not knew any of the accused, therefore, he did not mentioned in his F.I.R. (Ex.P/1). 9.2 P.W. 2 - Mohd. Aasif has stated in his examination-in-chief that on 09.02.2018, they were sleeping at their house after having dinner, it was around 1 O'clock in the night. They heard the sound of knocking on the channel of their main gate. He woke up his family members then, he got up to see, no one was seen then, after waking up his family members, he, his father Mohd. Ayub, his mother Joharat went to see the channel gate, the lock was twisted. Someone must have tried to open the lock but it did not open then, they went out from the other gate of their house and went towards the channel gate. His brothers Mohd. Rahim and Mohd. Arij also followed them. No one was seen around their [2025:RJ-JP:37181-DB] (7 of 10) [CRLLA-743/2024] house, two houses away from their house, there was a little darkness on the platform of Hussain's house, 4-5 men were standing there. They were going towards them to see them then, one of them fired from some weapon like a gun, due to which his brother Rahim got injured on the head. In his cross-examination, he has further admitted that at the time of giving his statement to the police, he did not know names of the accused, that is why he did not mention them in his statement; after the incident, accused were caught and their names appeared in the news-paper then, he came to know their names. He has also admitted that photos of accused were published in the news-paper. After this, identification proceedings were conducted in jail. He did not tell the Magistrate during the proceedings that he had seen photographs of the accused in the news-paper and read their names. He has also stated that people who were running had their backs towards them and their faces were not towards them. Thus, from the statements of both above witnesses, it is clear that both these witnesses did not see and recognize accused- respondents at the place of incident. In this context, it is also worth mentioning that it is an admitted position that there was dark night and no source of light has been shown in the site-plan, therefore, it is not possible for witnesses to identify any of the accused in a dark. In our considered opinion, if the above witnesses could have identified the accused, their names must have been mentioned in the written report (Ex.P/1). 10. So far as identification proceedings (Ex.P/42, 43, 44 & 45) are concerned, P.W. 2 - Mohd. Aasif has admitted that photos of [2025:RJ-JP:37181-DB] (8 of 10) [CRLLA-743/2024] accused were published in the news-paper and after this, identification proceedings were conducted in jail. Therefore, in our considered opinion, the identification proceedings too are of no significance. 11. Regarding verification of place of incident at the instance of accused-respondents is concerned, a perusal of Ex.P/35 - verification memo of place of incident reveals that same was prepared by the police on 29.03.2018, whereas, a perusal of Ex.P/6 - site plan of place of incident reveals that same was prepared on 11.02.2018 itself. It shows that the place of incident was well within the knowledge of the police since 11.02.2018. Therefore, in out considered opinion, mere verification of place of incident is of no significance. 12. With regard to recovery of bloodstained iron pipe and iron sariya vide Ex.P/2 and Ex.P/8 are concerned, a perusal of Ex.P/2 & Ex.P/8 reveals that both articles recovered from an open area i.e. place of incident itself in the presence of witnesses Satyanarayan (P.W. 4) and Mehran (P.W. 3), whereas, an iron sariya was recovered at the instance of accused-respondent Ram Sukh in the presence of witnesses Virendra Singh (P.W. 23) and Satyanarayan (P.W. 4) vide Ex.P/10. All aforesaid recovery witnesses are police officials and were subordinate to the Investigating Officer. Neither any rojnamcha regarding posting of these witnesses at the concerned police station nor log-book of vehicle was produced to show that they went to the place of recovery on relevant date. It is pertinent to note that examination of finger prints on the recovered articles i.e. iron pipe and sariya was also not conducted [2025:RJ-JP:37181-DB] (9 of 10) [CRLLA-743/2024] from the F.S.L. It is also pertinent to note that no blood was found on the iron sariya recovered vide Ex.P/10, however, as per F.S.L. Report (Ex.P/66) human blood was detected on iron pipe and iron sariya recovered vide Ex.P/2 & Ex.P/8, respectively but result of grouping of blood found on both these articles remained inconclusive. Further, there is no evidence on record to show that blood found on both these articles was of the deceased and none else. 13. Regarding recovery of a live cartridge as well as country made pistol and one empty cartridge, a perusal of Ex.P/31 reveals that a live cartridge was recovered at the instance of accused- respondent Ramesh Nayak from his rented flat in the presence of witnesses Dinesh Kumar Meena – FC 215 (P.W. 20) and Jitendra Singh - FC 221 (P.W. 15) P.W. 15 - Jitendra Singh has stated in his examination-in-chief that on 02.04.2018, accused Ramesh Chandra after entering in his rented flat produced a live cartridge from beneath the water tank kept near the gate. P.W. 20 Dinesh Meena has stated in his examination-in-chief that place from where recovery was affected, that room was locked. In his cross- examination, he has stated that Ramesh had asked for key of the flat from someone. It is pertinent to note that there is no evidence on record to show that said flat was given on rent to the accused- respondent Ramesh Nayak. Thus, from the above evidence available on record, the prosecution has not been able to prove its story qua accused-respondents beyond all reasonable doubt. 15. In view of the above discussion, this Court finds no ground to grant leave to appeal in favour of the appellant - State. [2025:RJ-JP:37181-DB] (10 of 10) [CRLLA-743/2024] 16. Accordingly, present criminal leave to appeal is dismissed. The Judgment dated 06.07.2023 passed by the trial court qua accused-respondents is affirmed. 17. The record of the learned trial court be sent back forthwith. (BHUWAN GOYAL),J (INDERJEET SINGH),J INDER/