PALSHIKAR, J. - (1.) The Criminal Appeal No. 167 of 1991 is directed against the order passed by the learned Additional Sessions Judge, Bhilwara, dated 29-4-91 convicting the accused- appellant under S. 302 of the Indian Penal Code in Sessions Case No. 38 of 1990. Criminal Appeal No. 146 of 1992 also challenges the same order in so far as it acquits the other accused persons. The facts giving rise to these appeals, stated briefly are as under.
(2.) On February 27, 1990 there was a quarrel between the accused and the deceased and the accused persons fatally assaulted the deceased with four others, and, therefore, the deceased died a homicidal death. After due investigation prosecution was launched under S. 302 read with Ss. 34, 147, 148 and 149, IPC against five accused persons. The learned Additional Sessions Judge on appreciation of the evidence on record came to the conclusion of guilt only against Shanker and proceeded to convict him under S. 302, IPC and sentenced him to suffer imprisonment for life as aforesaid. It is this order of the learned Additional Sessions Judge, Bhilwara which is assailed in this appeal on the grounds mentioned in the memo of appeal.
(3.) Summarised briefly, the grounds are that,- (i) There is no evidence of independent nature on record to establish that the appellant was the only person responsible for homicidal death of the deceased. In fact there is no eye-witness account on which absolute reliance can be placed for coming to the conclusion of guilt. (ii) It is then submitted that the statement of material witnesses have been recorded after inordinate delay as the first information report was lodged immediately after the occurrence of the offence and the delay which is inordinate in nature gives rise to a reasonable suspicion that the statements have been recorded after it was decided as to the manner in which they should be given. For this reason, it is alleged that the witnesses be disbelieved. (iii) The entire order of conviction is based on the deposition of Kanhaiya Lal and Shyamlal and there being material contradictions in their evidence, the whole evidence is liable to be rejected. There is, therefore, no basis to maintain the conviction. (iv) The learned Additional Sessions Judge has not taken into consideration the totality of circumstances and the evidence on record with the result that grave injustice is done to the accused by the conviction. (v) The learned Judge should have seen that having rejected the testimony of these witnesses in relation to participation of other accused persons, the evidence of those very witnesses in relation to accused Shanker, the present appellant, could not have been accepted. The basic error has been made by the learned Additional Sessions Judge in approaching the case in this manner. He, therefore, prayed for an order of acquittal. ;