JUDGMENT : G.R. Moolchandani, J. Appellant State of Rajasthan has assailed validity of judgment dated 15.5.1995 passed by the Addl. District & Sessions Judge, Khetri, District Jhunjhunu (for short 'the trial court') in Sessions Case No. 90/93, whereby the trial court has acquitted all the accused-respondents. 2. This Court while admitting leave to appeal accorded leave only against accused-respondents Jagmal, Shrawan Kumar, Rajendra, Vinod, Naresh, Mahesh and Prabhudayal on 2.11.1995. District & Sessions Judge, Khetri, District Jhunjhunu (for short 'the trial court') in Sessions Case No. 90/93, whereby the trial court has acquitted all the accused-respondents. 2. This Court while admitting leave to appeal accorded leave only against accused-respondents Jagmal, Shrawan Kumar, Rajendra, Vinod, Naresh, Mahesh and Prabhudayal on 2.11.1995. Written report Ex.P/41, which was presented by complainant was before Station House Officer, Singhana on 12.6.93 at 6.10 p.m., case FIR was registered for the offences under Sections 147, 148, 149, 324, 325, 447, 323 and 302 IPC and contents of the written report are being reproduced here-in-below :- fuosnu gS fd vkt fnuakd 12-06-1993 dks esjs ?kj xkao <+k<+ksr [kqnZ esa lqcg djhc 9 cts tc esjs HkkbZ ekrqjke] /keZiky] dSyk'k] lqjs'k rFkk dykorh iRuh ekrqjke rFkk ekrqjke ds cPps lqjsUnz vkfn ?kj dk dkedkt dj jgs FksA egs'k FkksM+h nwj ij gy pyk jgk Fkk ml le; txeky iq= jkeÁlkn] jktsUnziq= txeky] Jo.k iq= jke Álkn] fouksniq= txeky] jksfgrk'k iq= txeky cukjlh yky iq= jkeÁlkn egkohj iq= jkeÁlkn] ujs'k iq=] egkohj] ÁHkq iq= jkeÁlkn] egs'k iq= ÁHkw] xhrk iRuh fo|k/kj] :de.kh iRuh txeky] Hkksykjke iq= egkohj] lqHkk"k iq= txeky] /keZohj iq= gjpUn tkV fuoklh flykniqjh] ekrqjke iq= ';ksdj.k [kkrh] xaxk iRuh egkohj] lUrks"k iRuh jktsUnz] deyh iRuh jkeÁlkn vkfn buds ifjokj ds enZ vkSjr gkFksa esa ykBh dqYgkM+k] tSyh vkfn ysdj ekrqjke ds ?kj vk, rFkk bu lcus feydj ekrqjke] /keZiky] dSyk'k lqjs'k dks ekrqjke ds [ksr esa ydfM+;ksa] dqYgkM+ksa o tSfty;ksa ls ekjkA ekrqjke dks txeky] jktsUnz] Jo.k us ekjk gS ckdh us /keZiky dSyk'k lqjs'k dks cqjh rjg ?kk;y dj fn;k gSA jksfgrk'k us /keZiky dk ck;ak gkFk ydM+h ls rksM+ fn;k gSA ?kj ij ekrqjke dk yM+dk lqjsUnz vdsyk gh cpk Fkk ftldks txeky ds ifjokj ds lHkh O;fDr;ksa us 2 cts rd ?kj ls ugha fudyus fn;k dgk fd dksbZ Hkh fjiksVZ djus tk,xk mls tku ls ekj nsaxsA yxHkx nks cts ekrqjke dh pksVksa ls e`R;q gks xbZ vkSj os yksx fla/kkuk pys x,A rc lqjsUnz us <+k<+ksr ls fla/kkuk vkdj eq>s ;g tkudkjh nhA /keZiky] dSyk'k] lqjs'k dks lh/ks gh gkWLihVy esa HkrhZ djk fn;k gSA ekrqjke dk 'ko ekSds ij gh iM+k gSA ?kVuk ds oDr jkes'oj iq= fyNeujke czkgE.k ekSds ij igaqp x;k Fkk rFkk gjQwy iq= ';ksdj.k fuoklh <+k<+ksr dyk Hkh ogha ij FkkA fjiksVZ dk;Zokgh gsrq is'k gSA 3. On the basis of Ex.P/41, Ex.P/42 bearing FIR No. 85/93 was registered at Police Station Singhana against 19 accused persons. 4. After committal of the case, trial court formulated charges against the accused-respondents and trial was initiated. Prosecution produced 20 witnesses and 76 documents were exhibited. Incriminating factual aspects were subsequently read over and explained to the accused-respondents, who denied the same, while examining under Section 313 Cr.P.C., 1973 The trial court by the impugned judgment acquitted all the accused-respondents, being aggrieved by the same, State of Rajasthan has preferred the instant appeal. 5. PW-19 Dr. B.S. Dadarwal, who conducted autopsy on the body of 10 deceased has narrated that following injuries were found in the body of the deceased in PMR (Ex.P/60) (A) Wounds on the body (i) One lacerated wound on right side of face lateral to right angle of mouth " x " x Horizontal. (ii) One incised wound 13/4" x " x bone deep. On right side of forehead extending from lateral part of right eyebrow, towards the mid part of forehead oblique. (iii) One lacerated wound " x " x bone deep above & parallel to the injury No. (ii). (iv) One lacerated wound on the top of skull 1" x " x bone deep. Horizontal, 7" above the root of nose. (v) One lacerated wound on right parietal region "x" x bone deep oblique. (vi) One Incised wound between left thumbs and Index finger 11/2 x "34". (B) Bruises (i) One bruise on right blade of scapula "x" oblique dark red oblique. (ii) One bruise 3" x 11/2" on Ant. Aspect of Left Shoulder, Vertical, Colour dark Red. (iii) One Bruise 11/2" x 11/2" on Ant. aspect of upper part of right side of chest, near sternum. (C) Abrasions (i) One Abrasion "x " x ?" on lateral epicondrya of left elbow. (ii) One Abrasion " x " x ?" on dorsal aspect of mid part of Left forearm. (iii) One Abrasion 1" x 1" x " on dorsal aspect of left hand. (iv) One Abrasion on dorsal of Left wrist joint " x " x " x ?"". (vi) One Abrasion " x " x ?" on lateral aspect of right knee joint. (vii) One Abrasion 11/2" x x" x ?" on post aspect of right lower part of the right arm. (iv) One Abrasion on dorsal of Left wrist joint " x " x " x ?"". (vi) One Abrasion " x " x ?" on lateral aspect of right knee joint. (vii) One Abrasion 11/2" x x" x ?" on post aspect of right lower part of the right arm. (viii) One Abrasion on post part of the body joint above right ilium bone 3" x " x ?". (C) Fractures (i) Fracture of right frontal bone into three pieces. (ii) Fracture of right parietal bone in two pieces. (iii) Fracture of right part of anterior fossa of bone of skull. 6. A cross version pertaining to factum of sustaining injuries by the accused persons, in the same incident has appeared in the cross-examination made by accused Shrawan Kumar, Rajendra, Vinod and Mahesh under Section 313 Cr.RC. which is vitally pertinent which has been described in the impugned judgment of the trial court and this utterance is as under:- fnuakd 12-06-1993 dks os muds [ksr esa ls jkLrs&jkLrs maV xkM+s ls tk jgs Fks rks muds mij ekrq] /keZiky] dSyk'k] lqjs'k o gjQwy us geyk dj fn;kA muds pksVs igaqpkbZA mUgksaus cpko fd;kA [ksr dk [kljk uEcj 196 gS ftldk [kkrk muds o dSyk'k] /keZiky oxSjk dk lkeykrh gSA cpko esa ekrqjke ds Hkh yxh gksxhA le; fnu ds nl cts dk FkkA 7. Similarly another accused persons Naresh, Mahaveer, Banarasi Lal and Prabhudayal have also narrated same kind of cross version that they were assaulted by the complainant side and injuries were also caused to them. The exact say is as under :- bl ?kVuk ls igys mUgsa ekrqjke] /keZiky] lqjs'k] dSyk'k] dykorh] gjQwy] jkes'oj vkfn us ekjihV dj laxhu pksVsa igqapkbZ Fkh ftldk eqdnek muds fo:) /kkjk 307 Hkkjrh; n.M lafgrk dk blh U;k;ky; esa fopkjk/khu gS blfy, bl jaft'k ls mudks >wBksa Qalk;k gSA 8. PW-12 Mahesh, though stated to be an eye-witness, has not narrated anything alike and has only said similar to the rest of the accused persons. PW-1 Surendra son of deceased, PW-2 Smt. Kalwati wife of deceased and PW-3 Krishan daughter of deceased have described ocular version of the incident, likewise PW-4 Kailash, PW-5 Suresh have also narrated eye witness version of the incident. PW-15 Harphool has also narrated ocular version of the incident. 9. In defence, evidence has also been produced. PW-1 Surendra son of deceased, PW-2 Smt. Kalwati wife of deceased and PW-3 Krishan daughter of deceased have described ocular version of the incident, likewise PW-4 Kailash, PW-5 Suresh have also narrated eye witness version of the incident. PW-15 Harphool has also narrated ocular version of the incident. 9. In defence, evidence has also been produced. DW-1 Ganga Ram has said that the incident belongs to about two years back, at about 9 to 10 a.m. Rajendra, Vinod, Mahesh and Shrawan Kumar were coming by a 'gaadi' on the road, meanwhile at that time Matu Ram, Dharampal, Kailash, Suresh and Harphool met there, Matu Ram was having 'kulhada' and rest of the persons were armed with 'lathis'. Matu Ram gave a 'kulhada' blow on the head of Rajendra and Shrawan, Suresh, Dharampal were also beaten. 10. DW-2 Dr. Surendra Pal Singh has also said the on 12.6.93, he had examined injuries of Vinod, who was having four injuries on his person. On the same day, injuries of injured Rajendra were also examined, who was having two injuries on his person, similarly Shrawan Kumar was also examined and he was having two injuries on his body and has said that their injury reports are Ex.D/8 to Ex.D/10 respectively. It is important to observe that both complainant and accused parties are inter-related and are relatives. Ex.P/41 does not divulge names of PW-1 Surendra, PW-2 Smt. Kalwati and PW-3 Krishan as eye witnesses and several contradictory factual aspects and omissions have occurred between testimony of these three witnesses vis-a-vis their police statements. It is also strange at the time of alleged lethal assault, PW-1 Surendra did not even attempted to rescue his father, instead he allegedly fled away from there. Admittedly Surendra went to his uncle Sriniwas's home to inform him, who subsequently lodged the report but none even conveyed such a brutal tragedy to anyone and kept mum. Untrue versions have also appeared in the evidence of the prosecution because PW-4 Kailash has said that he was allegedly injured and was examined on 13.6.93, he has further said that at the time of scuffle and beatings, none came to intervene and save to them, whereas eye witnesses have twistingly uttered that Rameshwar and Mahesh had come to protect them as per say of PW-5 Suresh. 11. 11. Learned trial court has dealt with contradictions, which have appeared in the testimony of different witnesses of the prosecution thoroughly and same has been observed : ih0M0 1 lqjsUnz] ih0M0 2 Jherh dykorh o ih0M0 3 d`".kk dk duMsDV vu uspqjy gS D;ksafd ?kVuk ds oDr dksbZ 'kksj ugha djrs gSa uk gh NqM+kus ds fy, tkrs gSA ?kVuk ds ckn esa os fdlh dks ugha crkrs gSa o uk gh fdlh dks fjiksVZ djus ds fy, dgrs gSA ;gka rd fd eqyfteku ds tkus ds ckotwn Hkh e`rd ds ikl ugha tkrs gSA iqfyl ds vkus ds ckn Hkh ?kVuk LFky ij ugha tkrs gSA ih0M0 1 lqjsUnz viuh ftjg esa dgrk gS fd geus Jh fuokl ls igys ;g ?kVuk fdlh dks ugha crkbZA geus cl esa Hkh ?kVuk ds ckjs esa fdlh ls ftØ ugha fd;kA fla?kuk cl LVs.M ij Hkh fdlh ls ftØ ugha fd;kA blh lUnHkZ esa ih0M0 2 Jherh dykorh us ftjg esa dgk gS fd iqfyl vkus rd ge rhuksa [ksr esa ugha x, FksA ekjihV fdruh nsj rd gqbZ Fkh og ugha crk ldrhA vUnkts ls Hkh ugha crk ldrhA lqjs'k] dSyk'k o /keZiky dks eqyfteku us fdruh nsjh rd ekjihV fd;k ;g og ugha crk ldrhA mlds ifr ds lkFk eqyfteku us fdruh nsj rd ekjihV fd;k ;g ugha cryk ldrhA blh izdkj ih0M0 3 d`".kk us viuh ftjg esa dgk gS fd ,d&nks fnu ckn iqfyl vkbZ rc Hkh mlus iqfyl dks dksbZ ckr ugha crkbZA ftjg esa vkxs dgrh gS fd eSa esjh eka o lqjsUnz us gjQwy o jkes'oj dks NqM+kus ds fy, ugha dgkA jkes'oj o gjQwy muds ?kj ij ugha vk,A bl Ádkj ih0M0 1 lqjsUnz] ih0M0 2 Jherh dykorh o ih0M0 3 d`".kk dk ?kVuk LFky ij mifLFkr gksuk lUnsgtud yxrk gS D;ksafd tSlk fd mij dgk x;k gS fd bu xokgksa dk duMsDV uspqjy ugha Árhr gksrk gSA ;g lgh gS fd bl ekeys esa ih0M0 4 dSyk'k o ih0M0 5 lqjs'k ds lxs HkkbZ /keZiky dks vfHk;kstu i{k us is'k ugha fd;k gSA vfHk;kstu i{k d vuqlkj /keZiky ds Hkh pksVsa dkfjr gqbZ FkhA ;|fi bl xokg dk pksV Áfrosnu i= Án'kZ ih0 57 Án'kZ djok;k x;k gS ijUrq /keZiky dks crkSj p'enhn xokg vfHk;kstu i{k us is'k ugha fd;k gSA bldk dksbZ ;qfDr;qDr dkj.k vfHk;kstu i{k ugha cryk ldrk gSA Likewise learned trial court has further dealt with this aspect as under:- tgka rd iksLVekVZe fjiksVZ dk lEcU/k gS ;g fjiksVZ ih0M0 19 MkW0 ch0,l0 nknjoky }kjk rS;kj dh xbZ gSA iapk;rukek yk'k esa e`rd ds 'kjhj ij flj esa dksbZ /kkjnkj pksV ugha crykbZ xbZ gS tcfd iksLVekVZe fjiksVZ izn'kZ ih0 60 esa /kkjnkj pksVsa fy[kh xbZ gSA iapk;rukek yk'k esa e`rd ds flj esa nkfgus iSjkbZVy Hkkx ij dksbZ pksV vkuk vafdr ugha gSA tcfd ih0M0 19 MkW0 ch0,l0 nknjoky us e`rd ds flj esa nkfgus iSjkbVy Hkkx ij ,d dqpyk gqvk ?kko vkuk crk;k gSA blh rjg M+kWDVj us iksLV ekVZe fjiksVZ esa fy[kk gS fd ÝsDpj vkWQ jkbZV iSjkbZVy cksu tks nks VqdM+ksa esa Fkk jkbZV iSjkbZVy cksu fdl txg ls VwVh gqbZ Fkh vafdr ugha fd;k gSA blh rjg fy[kk gS fd ÝsDpj vkWQ ÝUV~l cksu tks rhu VqdM+ksa esa Fkk ÝUVy cksu fdl txg ls VwVh gqbZ Fkh dgha vafdr ugha gSA blds vykok tc jkbZV iSjkbZVy Hkkx ij iapk;rukek yk'k esa dksbZ pksV ugha crkbZ xbZ gS rks jkbZV iSjkbZVy cksu dk ÝSDpj dSls gks ldrk gSA MkWDVj us iksLV ekVZe fjiksVZ esa ;g ugha fy[kk gS fd M~;wjkesVj rFkk ik;kesVj fdl LFkku ls ij gq, FksA ysljslu vkWQ czsu iksLVekVZe fjiksVZ esa vafdr gh ugha gS tcfd e`R;q dk dkj.k czsu ij vkbZ gqbZ pksV fy[kh gSA czsu ij D;k pksV Fkh dgha vafdr ugha gSA 12. Learned trial court has dealt with the important infirmities which have appeared in the story of the prosecution that investigation was conducted prior to lodging of FIR and has observed as under tgka rd rQrh'k ds ckn ,Q0vkbZ0vkj0 ntZ djus dk Á'u gS tSlk fd mij dgk tk pqdk gS fd ih0M0 11 Jhfuokl us fnuakd 12-06-1993 dks 'kke dks 5 cts Fkkus esa tqckuh fjiksVZ is'k dh rks Fkkusnkj us dgk fd og igys nks vkneh Hkstsxk oks igys fjiksVZ ns[kdj vk;saxsaA ;s nks vkneh Fkkus ls yxHkx 5 cts ?kVukLFky ds fy, jokuk gks x, FksA bl lEcU/k esa ih0M03 d`".kk dk dFku gS fd iqfyl 4&5 cts ?kVukLFky ij vk xbZ FkhA ih0M01 lqjsUæ dgrk gS fd iqfyl vkbZ rc rd /keZiky] lqjs'k o dSyk'k ekSds ij gh iM+s FksA iqfyl igys dSyk'k] /keZiky] o lqjs'k dks ysdj xbZA fyf[kr fjiskVZ Án'kZ ih0 41 esa ;g fy[kk gqvk gS fd dSyk'k] /keZiky o lqjs'k dks vLirky esa HkrhZ djk fn;k gS tcfd fjiksVZ Án'kZ ih0 41 fnuakd 12-06-1993 dks 6-10 ih0,e0 ij Fkkuk esa is'k djuk crk;k x;k gSA bldk eryc ;g gS fd 'kke dks 6-10 ih0,e0 ls igys iqfyl ?kVukLFky ij tkdj eqyfteku dks ykdj vk xbZ FkhA ih0M04 dSyk'k 2-30 ih0,e0 ij iqfyl dk ?kVuk LFky ij igqapuk crkrk gSA og dgrk gS fd 2-30 cts tc iqfyl vkbZ eqyfteku ogka cSBs FksA xokg ih0M015 gjQwy dgrk gS fd ?kVuk ds fnu iqfyl pkj&lk<+s pkj cts ?kVuk LFky ij vk xbZ FkhA ih0M010 ';kelqUnj dgrk gS fd iqfyl us lk<+s ikap N% cts iapk;rukek yk'k cuk;k Fkk tcfd fjiksVZ 12-06-1993 dks 6-10 ih0,e0 ij Fkkuk esa is'k gqbZ gSA ;fn lqjs'k] /keZiky dks fla?kkuk vLirkyk esa 6-45 rFkk 7-45 ih0,e0 ij HkrhZ fd;k x;k gS rks Fkkus esa fjiksVZ Án'kZ ih0 41 kke dks 7-45 ih0,e0 ds ckn is'k dh xbZ gS tks Fkkusnkjska ds jkr dks ekSds ij ls vkB cts okfil vkus ds ckn is'k dh xbZ gSA bl ckr ls iqf"V gksrh gS fd ih0M011 Jhfuokl vius U;k;ky; ds c;ku esa dgrk gS fd Án'kZ ih 42 ,Q0vkbZ0vkj0 ij dk;Zokgh iqfyl ds uhps mlds gLrk{kj jkr dks 8 cts djok, Fks blls ;g lkfcr gksrk gS fd Án'kZ ih 42 ij 6-10 ih0,e0 ckn esa QthZ Mkyk x;k gS ftldh iqf"V ih0M011 Jhfuokl ds c;ku ls Hkh gksrh gSA mijksDr lHkh rF;ksa ls Árhr gksrk gS fd rQrh'k dkQh djus ds ckn esa ,Q0vkbZ0vkj0 ntZ dh xbZ gSA 13. Version of the prosecution that the accused waylaid and kept deceased Matu Ram surrounded even after his murder for hours together is also not plausible, since such a situation itself appears to be unreliable and flimsy. PW-15 Harphool has categorically admitted that accused persons Prabhu, Rajendra, Shrawan and Vinod had inflicted injuries in their defence and vital parts of Rajendra, Vinod Shrawan have been found inflicted with injuries but prosecution has tried to conceal this aspect, which have been inflicted upon several accused persons. This aspect has also been dealt by the trial court. 14. In totality of the evidence adduced by the prosecution and defence, it is obvious that prosecution has endeavoured to conceal, genesis of the crime and efforts have been made to keep the injuries of several accused persons latent and unexplained. Defence has also given evidence, which is duly supported by documentary evidence pertaining to their injuries delineated in Ex. P/8 to Ex. P/10. 15. It is imperative to divulge truth before the court and not to conceal origin of the incident. Several contradictions have appeared in the testimony of the prosecution, even injuries of accused persons have tried to be concealed. Utterance of alleged ocular injuries have even not found on the alleged parts, investigation also appears to have been done prior to lodging of the FIR and this frailty aspect has also not been properly explained. A number of accused persons have sustained injuries in the incident. Both the sides are close relatives, so their being non-neutral and partisan role can also not be ruled out. 16. Prosecution requires to prove its case beyond all the realms of reasonable doubt, which is lacking in this case. Learned trial court has dealt with every aspect and has thoroughly examined the evidence while recording acquittal. In Narendra Singh & Anr. v. State of Madhya Pradesh, [2004(2) WLC (SC) Cri. 14 : 2004(10) SCC 699 ], the Hon'ble Apex Court has recognized presumption of innocence as a human right and has gone on to say that: "30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof, it is equally well settled that there is a long distance between 'may be' and 'must be'. 17. In Baijnath & Ors. v. State of Madhya Pradesh, 2017(1) WLC (SC) Cri. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof, it is equally well settled that there is a long distance between 'may be' and 'must be'. 17. In Baijnath & Ors. v. State of Madhya Pradesh, 2017(1) WLC (SC) Cri. 53 : 2017(1) SCC 101 , Hon'ble the Supreme Court has held that in the cases of deficiencies of proof, benefit would be available to the person charged and in Narendra Singh & Another v. State of M.P., 2004(2) WLC (SC) Cri. 14 : 2004(10) SCC 699 , the Hon'ble Apex Court has also held that in 20 event of there being two possible views, one supporting the accused should be upheld and the Hon'ble Supreme Court has recognized presumption of innocence as a human right. 18. In the case of Sukliya v. State of Madhya Pradesh reported in 2010 (15) SCC 745, the Hon'ble Apex Court has held as under:- "6. The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other therefore is innocence, the view which is favourable to be accused should be adopted." 19. In view of the afore-discussed backdrop, we find no reason to upset the finding of acquittal, the appeal is devoid of merit so deserves to be dismissed and hence is dismissed. 20. Keeping, however, in view of the provisions of Section 437-A the Code of Criminal Procedure, the respondents are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand Only) each and a surety bond in the like amount, before the trial court. 20. Keeping, however, in view of the provisions of Section 437-A the Code of Criminal Procedure, the respondents are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand Only) each and a surety bond in the like amount, before the trial court. The bonds, so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the respondents on receipt of notice thereof, shall appear before the Hon'ble Apex Court. 21. Record of the trial court be sent back immediately with a copy of the judgment. 22. Appeal Dismissed-accused To Execute Bond And Surety Each For Rs. 20,000/-.