IN THE SUPREME COURT OF INDIA      CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No. 1510 OF 2004        

STATE OF M.P. ...   Appellant(s)                         Versus    WAZIR KHAN & ANR. ...  Respondent(s)

J U D G M E N T

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').  

The prosecution 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

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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 framed.

Respondents 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

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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

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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.   

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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.

              ...................J.                                  (Dr. ARIJIT PASAYAT)   

             ....................J.                         (Dr. MUKUNDAKAM SHARMA)

New Delhi, October 16, 2008.