Kanwarlal
& Anr Vs. State of M.P [2002] Insc 382 (10 September 2002)
Doraiswamy
Raju & Shivaraj V. Patil. 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.
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