PETITIONER: S. VELAYUDHAN Vs. RESPONDENT: KRISHNAN AND ORS. DATE OF JUDGMENT: 01/04/1998 BENCH: G.T. NANAVATI, V.N. KHARE ACT: HEADNOTE: JUDGMENT:
J U D G E M E N T
Nanavati , J.
The two respondents were convicted under section 302
read with Section 34 IPC for causing death of Shanku. The
trial court based their conviction upon the evidence of PWs
1,2,3 and 4. The High court after reappreciating their
evidence set aside the conviction and acquitted the
respondents.
The High Court in its judgement has observed that upto
a certain point, the prosecution version and the defence
version are the same and, therefore, the only question was
whether the deceased and PWs 1 and 3 were the aggressors.
After taking into consideration the fact that all the eye
witnesses were close relatives of the deceased and that they
had not explained the injury on accused No.1, the High
court came to the conclusion that it was not proved by the
prosecution that the respondents were the aggressors. The
High Court further observed that out of the two versions,
the version of the defence was more probable. Thus accepting
the defence versions, the High Court allowed the appeal and
acquitted the respondents.
After scrutinising the evidence, we do not find that
the view taken by the High Court is unreasonable and calls
for any interference by this court. However, we would like
to say that the observation made by the High Court that even
if the prosecution evidence was believed, the accused could
have been convicted only under Section 323 IPC and not under
Section 302, does not appear to be correct.
Subject to this observation, this appeal is dismissed.