BADRI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment of the Division Bench of the rajasthan High Court in dismissing the criminal appeal filed by the appellant-accused and in maintaining conviction and sentence under section 302 read with Section 34 and Section 307 read with Section 149 along with some other offences. It is not necessary for us to traverse the entire gamut of the prosecution case. Suffice it to say that the conviction of these appellants was based on the evidence of eyewitnesses PWs 5, 6, 7, 8 and 9 as well as injured PW 1. The learned Sessions Judge discussed the evidence of these witnesses and believing them, came to the conclusion that the prosecution case has been proved beyond reasonable doubt. In appeal, the high Court, however, without discussing the evidence on which the learned sessions Judge relied upon merely stated that a careful consideration of the prosecution evidence and reasons given by the District and Sessions Judge was sufficient to affirm the conviction and sentence awarded by the learned sessions Judge. In our considered opinion, the High Court failed to exercise his jurisdiction vested in law in not discussing the evidence and not coming to his own conclusion. When the accused prefers an appeal against his conviction and sentence the appellate court is duty bound to consider the evidence-on-record and examine the question of reliability of those witnesses on which the conviction is based. The High Court while deciding the appeal filed by the accused, convicted of offence under Section 302 IPC, has to examine all the relevant and material circumstances before upholding conviction. In that view of the matter, we think it appropriate to remit the matter to the High Court as in our view the judgment cannot be held to be one in accordance with law. We, therefore, set aside the impugned judgment of the High Court and direct that Criminal Appeal No. 442 of 1977 be reheard and re-disposed of in accordance with law by giving opportunity of hearing to the party concerned. Since the appeal is an old one, the High Court is requested to dispose of the same within 3 months from the date of receipt of our order. The records of the case may be sent back to the High Court immediately. Accused 4 to 9 were released on bail during the pendency of the appeal in this Court and therefore they shall be permitted to continue on the same bail until disposal of the criminal appeal by the High Court.