STATE OF RAJASTHAN Vs. HAJARI ALIAS MITHIYA

JUDGEMENT

(1.) This is an appeal against acquittal by the State of Rajasthan arising out of Sessions Case No. 42/79 decided by the learned Sessions Judge, Pratapgarh Camp Chittorgarh on 5-2-1980 acquitting all the accused persons (eight in number) in the sessions case of all the charges levelled against them. The accused persons were charged under Section 302 read with Sections 148 and 149, I.P.C. and Sections 27 and 3 read with Sections 25 and 29 of the Arms Act. The learned Judge on appreciation of the evidence, acquitted all the eight accused persons and this appeal was preferred against that order by the State in 1980. This appeal came up for grant of special leave on 28-7-1980. The Division Bench then observed vide a speaking order of that date as under :-

(2.) The prosecution story stated briefly is that on 23-12-1978 at around 3 p.m. the accused persons (eight in number) came to the residence of one Pema, accused No. 1 Hajari was armed with a gun and others were armed with lathis. They demanded money from Pema, who declined to pay any money and promised payment after adjudication of litigation infra-parties. It is then alleged by the prosecution that enraged by this refusal to pay, Hajari fired from the gun at Pema, who was hit in the stomach and died. Thereafter some of the witnesses present at the place, ran after the accused persons accosting Hajari and detained him while others succeeded in running away. After due investigation, challan was filed and the accused were charge-sheeted as above.

(3.) In support of its case, the prosecution has examined 11 witnesses. Of these witnesses, PW 3 Mangiya and PW 5 Smt. Motiya are eye witnesses to the incident. Another eye witnesses to the incident Rupa has turned hostile during trial. PW 8 Raju, PW 9 Rupa and PW 10 Bahadur Singh have also been declared hostile and their testimony is, therefore, inconsequential. PW 1 Dr. S. S. Das has proved that Pema met homicidal death. PW 4 Narain proved the recovery of the gun from the accused Prithvi Singh, who is acquitted and against whose acquittal, appeal was not admitted. It will be seen that the recovery of the gun is attributed to Prithvi Singh from his possession and not to Rupa, to whom the gun was handed over by Hajari according to the eye witness. It is worthwhile to note the statement of PW 3 Mangiya as an eye witness in this regard.