STATE OF RAJASTHAN Vs. MAHAVEER

JUDGEMENT

(1.) Both these appeals out of the judgment and dorder passed by the High Court of Rajasthan in Criminal Appeal Nos. 398 and 382 of 1983. The High Court acquitted the appellants in those appeals and, therefore, the State has preferred these appeals against their acquittal.

(2.) According to the prosecution about 12 to 13 persons armed with guns and other weapons had gone to the house of Babu on 22-8-1981 at about 5.30 p.m. and shot dead Ram Bharosa, Shankar and Bhikha. They had burnt the house of Babu and also taken away certain articles belonging to the persons residing therein. Eleven out of them were challaned by the police. As two accused were absconding, the trial proceeded against the remaining nine accused. One of them was found to be a child witness and therefore his trial separated. Out of eight accused who came to be tried for the offences punishable under Sections 148, 302, 302/149 and 436 IPC, the trial Court convicted seven. They had preferred two separate appeals one was by five accused and the other by two. The High Court acquitted them all on the grounds that the version given by the four eye-witnesses was improbable, that they had made material improvements while giving evidence in the Court and that police statements of some of them were recorded late. The High Court also considered the evidence of each eye-witness separately and held that they could not be regarded as reliable witnesses as their evidence suffered from various infirmities.

(3.) It was submitted by the learned counsel for the appellant-State that the incident had taken place during the day time and in the house of Babu and, therefore, the persons residing in the house must have seen the incident. It was, therefore, not proper for the High Court to discard the evidence of the eye-witnesses who were in fact residing in that house merely because there were some inconsistencies in their evidence and were contradicted on certain points by their police statements. He also submitted that admittedly there was enmity between the accused on the one hand and Babu and his relatives on the other hand and as the witnesses had said, it was for taking revenge that the accused had gone to Babu's house on that day and had killed the male members who could be found there.