- (1.) This appeal by special leave seeks to challenge the judgment and order dated 11.02.2008 in DB-Criminal Appeal No.338 of 1983 passed by the High Court of Judicature for Rajasthan at Jodhpur acquitting the respondents of the offences punishable under Sections 147, 302 read with Section 149 IPC.
(2.) The matter arises out of reporting made by PW3 Lalaram at 11.30 pm on 21.05.1982 that at about 8.30 pm while returning from his field he had stayed at piao of Padmaji for having water and smoke. That time he saw Bhagirath, resident of Tausar ploughing his field with a tractor driven by PW4 Ramkaran. He also saw "one child" sitting on the tractor, whose name he did not know. While so sitting at piao he saw that the respondents- accused and one more person armed with lathis and kassies had formed an unlawful assembly and entered into the field of Bhagirath. As per reporting, he was able to identify them all in the light of the tractor and he had seen accused-respondent Manglaram stopping the tractor whereupon Bhagirath came down from the tractor. Accused Sampat Ram then allegedly inflicted a kassi blow on the head of Bhagirath who fell down. Treating him to be dead all the accused ran away. PW3 Lalaram went to the spot, remained there for about an hour and since nobody appeared he left the dead body of Bhagirath there itself.
(3.) On this reporting a case was initially registered against the respondents and one Bheenvraj. After investigation charge-sheet was filed against the respondents and Bheenvraj under Sections 147, 148, 149, 302 and 120B IPC. The prosecution examined sixteen witnesses. The informant PW3 Lalaram turned hostile and could not identify the assailants. PW4 Ramkaran, driver of the tractor could identify all the accused and stated that respondent Sampat Ram had dealt kassi blow on the head of Bhagirath while the others with their lathis had given blows to him. He further stated that immediately after the incident he had left the place of occurrence with his tractor to his house. The person who was referred to as "one child" in the initial reporting, according to the prosecution was PW5 Ramratan. As a matter of fact, PW5 Ramratan was aged about 22 years and a stout person. He could identify only one accused i.e. respondent Sampat Ram, who allegedly was carrying a kassi and had given a blow on the head of Bhagirath. PW11 Dr. Shankarlal had conducted post-mortem on the dead body of Bhagirath deposed about the injuries and his opinion was as under: "a lacerated wound of size 2" x " x deep muscle on the head of deceased, another lacerated wound of size " x " was over head. Apart from these injuries were also found over back and right arm. Upon opening the skull, bone fracture was found over left parietal bone and on the joint of parietal bones. There were other brain injuries also found. The cause of death of deceased was shock arisen due to brain injuries and internal bleeding. Several bones of skull found fractured. .............. These injuries were ante mortem in nature and were sufficient to cause death in the ordinary course of nature and the same could have been caused by the opposite side of kassi." The recovery of kassi Article 1 was proved by PW6 Ganpath on the basis of disclosure information Ext.P-19 given by Sampat Ram. However, upon chemical examination no blood was found on it.;