V.G.PALSHIKAR, J. - (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 :- "Heard Mr. M.D. Purohit learned Public Prosecutor for the State and perused the judgment passed in this case by the Sessions Judge Pratapgarh on 5-2-1980 by which the non petitioners Nos. 1 to 8 were acquitted of all the charges levelled against them by the trial Court. Upon perusal of the judgment we are satisfied that Goliya, Baliya Nanunath, Sojiya, Ganganath, Smt. Sajani and Prithvi Singh non-petitioners were rightly acquitted of the offences punishable under Sections 148, 302, in the alternative 302 read with Section 149, I.P.C. and under S. 29 of the Arms Act. The trial Judge has given good reasons with which we fully agree for not holding the aforesaid non petitioners guilty of the above mentioned offences and we see absolutely no reason to take a different view specially when the prosecution could not lead satisfactory evidence to show that they or any one of them took part in the commission of the crime of murder. The evidence against them is that they were present at the time of occurrence, and they had gone there to secure money non credit from the deceased. Consequently we find no justification for interference with the findings of the trial Judge as to their innocence. The leave sought by the State against these non petitioners Nos. 2 to 8 is therefore refused. The case of Hajari alias Mithiya stands on different footings. In our opinion leave to this Court against his acquittal should be granted, consequently we accept the application for leave to appeal filed by the State against his acquittal only under Sections 148, 302 and 302/149, I.P.C. and Sections 25 and 3/27 of the Arms Act. Register the appeal against Hajari alias Mithiya Respondent only and issue bailable warrant in the amount of Rs. 5000/- (Rupees five thousand only) against Hajari alias Mithiya Respondent to enforce his attendance in this Court on 8-9-1980." And the appeal was admitted and leave granted only against accused Hajari. We are, therefore, concerned with the appeal of the State only in relation to Hajari.
(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.;