However, the High Court chose to place reliance upon the testimony of some of the witnesses who had been won over and had turned hostile and on the basis of their statements has discarded the prosecution case.
Kishanlal gave abuses and thereafter all the five accused armed with fire arms started firing from their respective weapons.
Santosh had sustained pellet injuries on abdomen and right auxilliary fold.
According to the prosecution, the incident took place at about 5.30 p.m. on 21.12.1985 in village Bhajnawas when PW1 Daya Ram was cutting fodder in his Nohara.
Leela Ram had sustained pellet injuries on chest, abdomen, chin and below right eye.
Bholu Ram had sustained multiple pellet injuries on chest, abdomen, arms and thighs and Smt.
At about 5.30 p.m. on the date of the incident, he was cutting fodder in the Nohara, when Bhawani and Kishanlal armed with guns, Hari Singh and Amilal armed with companyntry made pistols, Ramjilal armed with pistol and 11 other accused armed with lathis and farsies came there.
An FIR of the incident was lodged by PW1 Daya Ram, brother of Deshraj, deceased, at 8.00 p.m. on 21.12.1985 at P.S. Mundawar, which is 17 kilometers from the place of occurrence in which 16 persons were named as accused.
PW22 Mahesh Chand Dube was posted as Station House Officer at P.S. Mundawar on 21.12.1985.
PW21 Dr. P.N. Aggarwal, who was posted in General Hospital, Alwar on 22.12.1985, medically examined PW1 Daya Ram and found gunshot injuries on his jaw, left side of neck, chest, shoulder and left arm.
Deshraj had received 22 gunshot wounds on chest in 7 diameter, 10 gunshot wounds on abdomen, epigastric and umblical region besides number of gunshot wounds on left forearm, right arm and face.
Deshraj and Hoshiar died on the spot as a result of the injuries received by them.
He has further stated that thereafter he went to the Police Station Mundawar on the jeep of Babulal Vaidya, where he lodged a written report of the incident at 8.00 p.m. Similar statements have been given by PW5 Bholu Ram brother of Hoshiar, deceased , PW6 Leela Ram, PW10 Babulal, PW11 Dhanni, PW12 Lali, PW13 Sajana, PW14 Sarwan, PW15 Patori, PW16 Santosh and PW17 Bharpai.
PW23 Dr. Gopal Maheshwari, who was posted as Medical Officer at Government Hospital, Kot Putli on 22.12.1985, medically examined PW5 Bholu Ram, PW6 Leela Ram, PW7 Makhan Ram, PW8 Daulat Ram, PW9 Ratan Lal and PW16 Santosh on that day and found gunshot injuries on their person.
Sternum and third, fourth and fifth ribs of both sides were fractured and plura was perforated.
The sound of gunfire also attracted Bholu, his wife Santosh and Hoshiar to the Nohara, but they also fell victim to the shots fired by the accused and fell down after receiving injuries.
The respondent No.1 Bhawani had been further companyvicted under Section 3/25 of the Arms Act and had been sentenced to one year RI and a fine of Rs.500/ .
Deshraj, Leela, Daulat, Ratan, Makhan and Babulal who were sitting in the Baithak came outside, after hearing the abuses and sound of gunfire.
Three accused, namely Kishanlal, Ramjilal and Amilal were number prosecuted as they had absconded.
The internal examination showed that sternum and third, fourth, fifth and sixth ribs of both sides were punctured and plura was perforated.
In his deposition, he has given details of the various steps taken by him during the companyrse of investigation of the case.
On the basis of the FIR, a case was registered and usual investigation followed.
In the opinion of the Doctor, the ante mortem injuries sustained by both the deceased were sufficient in the ordinary companyrse of nature to cause death.
Out of these 11 eye witnesses PW1, PW5, PW6, PW10 and PW16 had received gunshot injuries and are, therefore, injured witnesses.
The accused also fired upon them due to which they received gunshot injuries.
Hoshiar Singh had sustained 12 gunshot wounds on chest central part in 6 diameter, two gunshot wounds on epigastric region, two gunshot wounds on right and left forearms.
PW26 Dr. Srichand Sharma, who was posted at Public Health Centre, Mundawar, companyducted post mortem examination on the bodies of deceased Deshraj and Hoshiar Singh on 22.12.1985.
As a result of firing, two persons, namely, Deshraj and Hoshiar died on the spot and several others received gunshot injuries.
PW1 Daya Ram has stated that a litigation regarding Nohara was going on with Kishanlal absconding accused in the Court of SDM, Kishangarh, due to which the accused bore enmity with him.
The remaining accused who were alleged to have been standing outside the Nohara and were alleged to have been armed with lathis and farsies and had number been assigned any specific role of causing any injury to anyone, were acquitted.
The respondents Bhawani armed with gun, Hari Singh armed with companyntry made pistol and three others namely Kishanlal armed with gun, Ramjilal armed with pistol and Amilal armed with companyntry made pistol suddenly came there and after giving abuses, started firing from their respective weapons.
The motive for the assault is said to be a litigation regarding the Nohara which was pending between the parties in the Court of SDM, Kishangarh.
The learned Additional Sessions Judge held that from the evidence on record it was proved beyond doubt that Bhawani, Hari Singh, Kishanlal, Ramjilal and Amilal had formed an unlawful assembly and in prosecution of their companymon object they had trespassed into the Nohara and had caused death of Deshraj and Hoshiar and gunshot injuries to others by firing at them.
The respondents Bhawani and Hari Singh preferred an appeal against their companyviction and sentence which has been allowed by the High Court by the judgment and order which is under challenge in the present appeal.
It is said that some other persons who were armed with lathis and farsies were standing outside the Nohara.
The remaining 11 accused who were armed with lathis and farsies had surrounded the Nohara and did number allow anyone to escape.
JUDGMENT P. Mathur, J. State of Rajasthan has preferred this appeal by special leave against the judgment and order dated 31.1.1991 of Jaipur Bench of High Court of Rajasthan by which the appeal preferred by the respondents against their companyviction and sentence was allowed and they were acquitted.
The learned Additional Sessions Judge, Kishangarh Alwar had companyvicted the respondents under Sections 148, 307, 302 and 448 IPC and had sentenced them to one year RI, 7 years RI and a fine of Rs.1000/ , imprisonment for life and a fine of Rs.100/ and one month RI respectively under each companynt.
He also examined PW10 Babulal and found gunshot injuries on his right hip, thigh and left hand.
PW2 Raja Ram, PW3 Babulal, PW4 Ram Singh alias Radheyshyam, PW7 Makhan, PW8 Daulat Ram and PW9 Ratan did number support the case of the procesuction and were accordingly declared hostile.
The prosecution, however, submitted charge sheet against 35 accused.
The remaining 6 eye witnesses were also resident of the same place and their houses were nearby and, therefore, they were the best witnesses of the incident.
