CASE NO.: Appeal (crl.) 107-109 of 2002 PETITIONER: KANWARLAL & ANOTHER Vs. RESPONDENT: STATE OF M.P. DATE OF JUDGMENT: 10/09/2002 BENCH: DORAISWAMY RAJU & SHIVARAJ V. PATIL. JUDGMENT:
Shivaraj V. Patil J.
The appellants and six other co-accused were tried
by Sessions Court for offences under Sections 148, 302,
in the alternative under Sections 302, 148, 307 or
307/148, 323 or 323/149 IPC and the appellant No. 1 was
also charged under Sections 25 and 27 of the Arms Act.
After trial, death sentence was awarded to the
appellant no. 1 finding him guilty of various offences
and the remaining seven accused were sentenced to
imprisonment for life besides imposing fine and
imprisonment for other offences. On appeal, by the
impugned judgment and order, the High Court acquitted
the other six co-accused; the appellants were held
guilty only under Section 302 IPC and were sentenced to
imprisonment for life and death sentence passed against
the appellant No. 1 was set aside. Aggrieved by their
conviction and sentence passed by the High Court, the
appellants are before this Court in these appeals.
In short and substance, the prosecution case was
that on 31.5.1996 at about 7.30 A.M., deceased Dwarka
accompanied by Prakash, Jeevan and Shambhu was on his
way to Ramganj Mandi. When they were in the playground
of Higher Secondary School of village Sandhara, the
accused persons surrounded the deceased Dwarka and
started assaulting him by means of lathi, ballam, axe
etc. Shambhu (PW-12) came home and informed the family
members about the occurrence; thereupon deceased Bheru
accompanied by Kaniram, Nandlal, Jalam and Jaikishan
reached the spot and when they tried to save Dwarka,
they were also assaulted by the accused. Appellant No.
1 Kanwarlal allegedly fired gun shot at Bheru causing
his instantaneous death. Kaniram lodged First
Information Report on the same day at 9.30 A.M. at P.S.
Bhanpur., Dwarka and other injured persons were sent to
Civil Hospital, Bhanpura for treatment. Dwarka was
sent to Civil Hospital, Mandsaur as his condition was
serious but he died on the way. The police after
investigation filed the charge-sheet. As already
noticed above, the trial court after considering and
appreciating the evidence on record held that the
prosecution proved its case against all the eight
accused persons and consequently they were convicted
and sentenced. However, the High Court in appeal,
acquitted six other co-accused and convicted and
sentenced the appellants as already noticed above.
The learned counsel for the appellants urged that
the impugned judgment and order cannot be sustained for
the reasons more than one. There were inherent
contradictions in medical evidence as recorded by Dr.
Pramila Nahar (PW-18) and Dr. A.K. Gulati (PW-21); five
prosecution witnesses have given different versions and
mentioned different arms being used by the appellant
No. 2; hence their evidence ought not to have been
believed; the High Court having held that Kaniram
(PW-1) and Jalam (PW-7) had no occasion to see as to
who in fact caused injury to Dwarka and that there was
no corroboration to their testimony, committed an error
in holding appellant no. 2 guilty of offence under
Section 302; despite recording a finding that the
accused suffered injuries and it was some kind of free
fight between two parties and no role was assigned to a
particular accused and having held that Section 149 IPC
was not attracted, the High Court erred in holding
appellant No. 2 solely guilty for causing the death of
Dwarka; since Dwarka died as a result of head injury,
the High Court was not justified in convicting the
appellant no. 2 on the basis of evidence of PW-10 and
PW-12 inasmuch as PW-10 has stated in his deposition
that the appellants were carrying rifles while PW-12
has stated that Kanwarlal had pierced the shoulder of
Dwarka with spear and Laxminarayan had fired at
Kaniram. The learned counsel also contended that the
High Court committed a manifest error in convicting the
appellant No. 2 on the basis of the evidence of
witnesses having disbelieved their evidence with regard
to the incident in which Dwarka was killed.
The learned counsel representing the State made
submissions in support of the impugned judgment and
order. According to her, the evidence against the
appellant no. 1 is consistent as to firing gun shot at
Bheru causing his instantaneous death; the
contradictions pointed out on behalf of the appellants
in the evidence of the prosecution witnesses were not
material. According to the learned counsel, taking an
overall view looking to the material placed on record,
the impugned judgment and order is quite justified.
We have carefully considered the respective
submissions of the learned counsel for the parties.
As can be seen from the impugned judgment, the
High Court noticed that there was some discrepancy in
the medical evidence but without examining further, the
High Court held that the deceased Dwarka had only one
head injury and in fact no fire arm injury was suffered
by Dwarka; the incident had taken place in two parts;
in the earlier part, Dwarka was assaulted, in the later
part, Bheru was killed; the High court disbelieved the
statements of PWs 1, 6 and 7 as to the assault on
Dwarka but on the basis of evidence of PWs 10 and 12
found the appellant No.1 guilty having held that there
was an attempt on the part of these witnesses to
implicate majority of the accused falsely; these two
witnesses testified that the appellant No. 2 and other
accused assaulted the deceased Dwarka by means of
lathis, farsis and ballams and PW-12 further stated
that the appellant no. 2 gave lathi blows to the
deceased. However, the medical evidence revealed that
deceased Dwarka had no injury caused by cutting or
pointed weapons like farsis and ballams. It may also
be added that PW-12 was declared hostile in the trial
court. The High Court has observed that the prosecution
witnesses seem to resort to exaggeration, embellishment
and padding up to support the story; the truth and
falsehood were so mixed up inextricably that it was not
possible to disengage the truth from falsehood. The
High Court with these observations and findings
acquitted the other six co-accused but on the basis of
the same evidence of the prosecution witnesses recorded
conviction on the appellants. In para 13 of the
impugned judgment, the High Court has observed thus:-
“According to the learned trial judge, this
accused Kanwarlal acted in a filmy style
firing repeated shots at the complainant
party. In fact that part of prosecution
story appeared to be wholly unbelievable.
Kanwarlal, it appears, only fired once at the
deceased. His was a country made gun used
with the help of gun powder and for every
fire he was required to load the gun afresh.
There was no occasion for using the gun in
that manner. His was an act of plain
shooting causing death of Bheru without there
being any element of brutality in it.”
The High Court has also noticed that PWs 1, 7 and
16 also received injuries in the incident. However,
there was no specific evidence as to which of the
accused caused these injuries; it is admitted by the
witnesses that the stones were pelted from both the
sides and injuries to these persons were caused by
pelting of stones; it appears that there was some kind
of free fight on the spot between the two parties; so
unless it was shown that a particular accused caused
these injuries, no one can be held responsible by
taking recourse to Section 149 IPC.
The appellant no. 2 was held guilty principally on
the basis of the evidence of PWs 10 and 12 who deposed
that deceased Dwarka was assaulted by farsis and
ballams. However, medical evidence shows no cut or
pointed injuries. PW-1 denied even lodging of F.I.R.
PWs 1, 6 and 7 stated to have reached the spot on
hearing about the assault on Dwarka. It was held by
the High Court that their evidence as to the assault of
Dwarka could not be believed. They stated that Dwarka
was assaulted by the appellant No. 2 by means of farsi
but no cut injury was found on Dwarka as per medical
evidence. As per the prosecution witnesses, several
accused assaulted Dwarka but there was only one injury
on his head. In the absence of any corroboration, the
prosecution case could not be believed to hold that the
appellant No. 2 was guilty for an offence under Section
302 IPC. Further, there are material contradictions in
the evidence of these so-called eye-witnesses rendering
the prosecution case doubtful and improbable in order
to fix appellant No. 2 guilty for the offence under
Section 302 IPC in relation to deceased Dwarka. The
High Court having stated that there was an attempt on
the part of the PWs 10 and 12 to implicate majority of
the accused; that evidence of PWs 1, 6 and 7 did not
inspire confidence; that there appeared to be a free
fight between parties and it was not shown that a
particular accused caused the injuries to have recourse
to Section 149 IPC. In these circumstances, the
impugned order convicting and sentencing the appellant
No. 2 cannot be sustained as the High Court did not
analyze and appreciate evidence objectively as it ought
to be by the court of first appeal. The serious
infirmities and contradictions found in the prosecution
case were not duly considered. Consequently, the
finding recorded by the High Court affirming the
finding recorded by the trial court, in our view, is
unsustainable having regard to the state of affairs
found in the case.
Although there were serious contradictions in the
evidence of the so-called eye-witnesses PWs 1, 6 and 7
in regard to the assault on deceased Bheru, one thing
appears to be probable that appellant no. 1 fired a gun
shot on deceased Bheru causing his instantaneous death.
It is on record, as found by the High Court on the
basis of evidence that there was a free fight between
two parties for quite sometime and in that fight
prosecution witnesses also received injuries. No
offence was made out in convicting the appellants
either under Section 34 or Section 149 IPC by the High
Court. Under the circumstances, it appears that the
appellant No. 1 fired a gun shot in a free fight
suddenly under grave provocation when there was free
fight between the parties for quite some time. In this
situation, considering the facts and circumstances, we
hold the appellant No. 1 guilty under Section 304(II)
IPC instead of Section 302 IPC. We are informed that
he is in custody for over six years i.e. from 4.6.1996.
In the light of what is stated above, we acquit
the appellant No. 2 and convict the appellant No. 1 for
an offence under Section 304(II) IPC instead of under
Section 302 IPC and sentence him to imprisonment for
the period already undergone. The appellants shall be
released forthwith if they are not required in any
other case. The appeals are ordered accordingly.