State of M.P. Vs.
Wazir Khan & ANR.  INSC 1752 (16 October 2008)
JURISDICTION CRIMINAL APPEAL No. 1510 OF 2004 STATE OF M.P. ... Appellant(s)
Versus WAZIR KHAN & ANR. ... Respondent(s)
Dr. ARIJIT PASAYAT,J.
Heard learned counsel
for the appellant-State and learned counsel for the respondents. The High Court
by its impugned judgment directed acquittal of the respondent who faced trial
for alleged commission of offence punishable under Section 302 read with Section
34 of the Indian Penaal Code, 1860 (in short 'IPC').
version as unfolded during trial in a nutshell is as follows:- In the night of
3.9.1993 at about 8:45 respondent No. 1 had thrown a petrol bomb on Saheed Khan
(hereinafter referred to as 'deceased') after igniting the petrol bottle with
match stick. According to the prosecution Wairkhan had a petrol bomb in his
hand. Hanif ignited the petrol bomb with match stick and Wazirkhan threw the
said bottle filled with petrol at Saheed. The bomb burnt instantly which
resulted into the death of deceased by burning. After filing FIR, charges were
tried and convicted for the offence. An appeal was filed against the order of
conviction. Respondents submitted before the High Court that nature of evidence
adduced against the respondents is not reliable and prosecution story itself
demonstrates that the story is not reliable. Respondents invited attention to
the evidence of PW-2, Ashok. This witness had deposed that Wazirkhan was
holding bomb in his hand which was ignited by Hanif by match stick and then the
said bomb was thrown on deceased Saheed and Saheed started burning. He came out
of the shop and rushed to inform Abdul Khalil, uncle of Saheed. This witness in
para 6 has deposed that after climbing the stairs, bomb was thrown in the shop.
Similar statement was
given by PW3 Sattar Khan that Wazirkhan had thrown the petrol bomb which hit
the head of Saheed and he was burnt. He chased the accused but he could not
catch them. Thereafter he returned back and deceased was taken by Matador to
hospital. Mehboob Khan PW4 had deposed that Hanif had ignited the bomb by match
-3- stick and thrown at Saheed. This witness had deposed that burning petrol
bomb fell on the deceased and he was burnt alive. Dr. Vinod Lahiri PW12 had
deposed that deceased was having second and third degree burn injuries. The
burns were dry. The percentage of burn was 90%. He admitted that the injury can
be caused if petrol is poured over the body and body is ignited by fire. He
further deposed that if some bottle or bag filled with petrol is thrown at any
person and fire ignited then the person cannot receive the injuries as are
received by the deceased. If a glass bottle filled with petrol is ignited and
thrown at the deceased will have injuries by glass pieces but no injuries by
glass pieces were found.
It was noted as
follows:- In the light of evidence of doctor and eye witness it was held that
the prosecution has failed to prove its case beyond reasonable doubt. Case of
the prosecution that the bomb was thrown at the deceased is belied by the
medical evidence and the fact that no injury by glass pieces was found on the
body of the deceased. We hold that the prosecution has failed to prove its case
beyond resonable doubt.
The High Court with
reference to the evidence of -4- the Doctor found that the scenario as
presented is not believable. Accordingly, the appeal filed by the respondent
questioning correctness of their conviction as was done by learned Additional
Sessions Judge-IInd, Gunna was allowed and the conviction of the respondents
was set aside.
Learned counsel for
the appellant-State submitted that the High Court in a very cryptic manner
passed the order of acquittal. It has proceeded on the basis of hypothetical
answer given by the Doctor overlooking the evidence of eye-witnesses. Learned
counsel for the respondent supported the judgment of the High Court.
We find substance in
the stand of learned counsel for the appellant that the judgment is very
cryptic. But when the materials on record and the discrepancies in evidence as
pointed out by accused persons are taken into account, the inevitable
conclusion is that the High Court's ultimate conclusion directing acquittal is
in order. It is not only the opinion of the Doctor which affects credibility of
the prosecution version. There are several other factors which were highlighted
by the trial court- i.e. the delayed presentation of the FIR and the delayed
despatch to the Elaka Magistrate.
-5- In that view of
the matter, we do not consider this to be a fit case for consideration. Hence
the appeal fail and is dismissed accordingly.
(Dr. ARIJIT PASAYAT)
(Dr. MUKUNDAKAM SHARMA)
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