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CASE NO.: Appeal (crl.)  927 of 2005

PETITIONER: Dev Narayan and others                                   

RESPONDENT: State of Madhya Pradesh and others                       

DATE OF JUDGMENT: 11/10/2006

BENCH: G.P. Mathur & A.K. Mathur

JUDGMENT: J U D G M E N T

G.P. Mathur, J.

       This appeal,  by special leave, has been preferred by nine  accused against the judgment and order dated 21.2.2005 of High  Court of Madhya Pradesh by which the appeal filed by the appellants  against the judgment and order dated 11.3.1995 of Special Judge,  Sehore in Special Case No. 156 of 1994 was dismissed.  The learned  Special Judge (Sessions Judge) had convicted the appellants under  Sections 147, 148, 307 read with Section 149 and Section 302 read  with Section 149 IPC and had sentenced them to various terms of  imprisonment.  They were awarded life sentence and a fine of  Rs.5,000/- and in default to undergo RI for one year under Section  302 read with Section 149 IPC.  All the sentences were ordered to run  concurrently. 2.      The case of the prosecution, in brief, is that the complainant  Dinesh Singh is Thakur by caste and is resident of village Hasnabad.   Sardar, who lost his life in the incident in question, was working as  servant of Dinesh Singh and used to look after his cultivation.  All the  eleven accused also belong to village Hasnabad and they are Khati by  caste.  There was long standing enmity between Dinesh Singh and his  family members on the one side and persons of Khati community on  the other side.  Panchayat elections had taken place 3-4 months prior  to the incident in which Raju @ Rajesh Prajapati accused won the  election.  The case of the prosecution further is that the deceased  Sardar was unwell and he was brought to the house of the complainant  Dinesh Singh in the afternoon of 1.9.1994 so that some medical aid  could be provided to him.  The complainant Dinesh Singh took the  deceased Sardar on his scooter to Sehore Government Hospital  sometime before 6.00 P.M.  The doctor, after examining Sardar,  advised for certain investigations and prescribed some medicines.   Dinesh Singh then took Sardar to a place where his x-ray examination  was done and after purchasing the medicines he started for his village  Hasnabad at about 7.30 P.M.  When he had taken a turn on Hasnabad  road from the side of Echhavar road, which is about four kilometers  from Sehore, he saw eleven accused armed with various weapons  standing there.  He tried to accellerate the speed of his scooter and in  the light of the same saw and identified the eleven accused standing  by the side of the road.  However, the engine of the scooter stopped  and the accused surrounded both of them.  Dev Narayan, Laxmi  Narayan and Bhanwar Lal accused caught hold of the complainant  Dinesh Singh while Ghisi Lal, Ramesh, Babu Lal and Mahesh  accused caught hold of Sardar deceased.  Laxmi Narayan and  Bhanwar Lal accused then instigated that they should be finished.   Dev Narayan accused assaulted the complainant with a ’chhuri’ and  Hari Narayan accused assaulted him with a ’gupti’.  Ghisi Lal and

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Mahesh accused armed with ’kulharis’ assaulted Sardar.  The  complainant however tried to run away from the spot.  Meanwhile a  jeep came from the opposite direction and seeing the same the  assailants stopped chasing the complainant.  The complainant then  came to the house of Kailash, who was working as driver, and  narrated the incident to him.  Kailash then took him to P.S. Kotwali on  the jeep of Agricultural College.  The complainant lodged the FIR of  the incident at 8.30 P.M. on 1.9.1994 at P.S. Kotwali.  From there he  was referred to the district hospital.  After lodging of the FIR a case  was registered and the investigation followed.   3.      After completion of the investigation PW-15 B.R. Mistri  submitted charge-sheet against eleven accused.  The learned Sessions  Judge framed charges under Sections 147, 148, 307 read with Section  149 and Section 302 read with Section 149 IPC against all the  accused.  The accused pleaded not guilty and claimed to be tried.  In  order to establish the case prosecution examined 17 witnesses and  filed some documentary evidence.  The accused in their statements  under Section 313 Cr.P.C. denied the prosecution case and alleged  their false implication on account of enmity.  They examined one  witness, namely, Shiv Prasad, chowkidar of village Hasnabad, in their  defence.  The learned Sessions Judge believed the case of the  prosecution and convicted and sentenced all the eleven accused as  mentioned earlier.  The appeal filed by the accused was dismissed by  the High Court.  Out of the eleven persons who had been convicted,  only nine accused have preferred the present appeal. 4.      We have heard learned counsel for the appellants, learned  counsel for the State of Madhya Pradesh and have perused the record. 5.      Before examining the testimony of the eye witness the medical  evidence may be considered first.  PW-12 Dr. S.K. Jain examined  Dinesh Singh at 10.40 P.M. on 1.9.1994 in the District Hospital,  Sehore and found the following injuries on his person: - "1.     An incised wound on the right palm measuring  1=" x <" skin deep. 2.      Linear incised wound on the left shoulder scapular  region four in number of the size 5" x skin deep. 3.      Linear incised wound on the right scapular region  5" x skin deep. 4.      Two bruises on mid back region size 4" in length. 5.      A contusion on the head 2" x 2"."

The doctor has opined that injury Nos. 1, 2 and 3 had been caused by  a sharp edged weapon and injuries Nos. 4 and 5 had been caused by a  blunt weapon. 6.      PW-14 Dr. Anand Sharma, Assistant Surgeon of District  Hospital, Sehore conducted Post Mortem examination on the body of  the deceased Sardar on 2.9.1994 and found the following injuries on  his person: - "1.     An incised wound right leg above anterior medical  middle 1/3 of tibia and fibula.  Size of wound is 1" x 1="  x 1" wound cutting the bone. 2.      An incised wound over right leg 6" below knees  anterior side of leg.  Size of wound is 1" x =" x =". 3.      Incised wound on right thigh, medically 3" above  the knee joint, size of wound was 1" x =" x =". 4.      An incised wound left leg lower 1/3 on anterior  lateral side of leg, size of wound is 2" x 1" x 1=" cutting  fibula bone. 5.      An incised wound left leg, middle 1/3 of anterior  tibia area, size of wound is 2" x 1" x 1=". 6.      An incised wound lateral side of knee on left leg  size of wound is 2" x 1" x 1=", wound cut the fibular  head. 7.      An incised wound on left hip region on upper end  of femoral region, size of wound is 1" x =" x 1". 8.      An incised wound on glottal region of hip.  Size of

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wound was 1" x =" x 2". 9.      An incised wound on left side of chest on posterior  axillary line 3" below axilla.  Horizontally size of wound  2" x 1" x 3" piercing thoracic cavity. 10.     An incised wound left side of neck region starting  from =" below left ear lobule going up to centre of neck,  transversely and obliquely replace size 4" x 2=" x 3"  cutting muscles of the neck, carotid vessels and vein of  the neck, cutting cartilage of neck and trachea and left  carotid artery cut. 11.     An incised wound on left side of face, starting  from angle of mandible reaching up whole of body of the  mandible, all muscle of region cut and cutting mandible  also, transverse and obliquely placed.  Size of wound 4"  x 3" x 3". 12.     An incised wound over right hypochordrium size  1" x =" x ="."

The doctor has opined that the death had occurred on account of shock  and haemorrhage and injuries No. 9, 10, 11 and 12 were sufficient in  the ordinary course of nature to cause death. 7.      There is only one eye witness of the incident, namely, PW-1  Dinesh Singh.  He has admitted in his cross-examination that Chain  Singh of Khati community had been murdered about 3-4 years back in  which he and Sardar (deceased) had been prosecuted but had been  acquitted about 2 years prior to the present incident.  He has also  admitted that on account of the aforesaid murder case there was strong  feeling of enmity between his family members on the one side and  persons belonging to Khati community on the other side.  His  statement, therefore, establishes the fact that his family members and  the persons belonging to Khati community of his village are on  inimical terms.  Hence his testimony has to be assessed with care and  caution. 8.      PW-1 Dinesh Singh claims to have identified the accused, who  were standing by the side of the road, in the light of the scooter.  He  has admitted that as soon as he saw the accused he tried to accellerate  the speed of the scooter but its engine stopped as he had not pressed  the clutch.  The light of the scooter too would have switched off after  the engine had stopped.  In such circumstances he would have got  only a momentary glimpse of the assailants.  His statement shows that  Dev Narayan accused was armed with a ’chhuri’; Hari Narayan  accused was armed with a ’gupti’ and Ghisi Lal and Mahesh accused  were armed with ’kulharis’.  In the FIR and also in his statement in  court PW-1 Dinesh Singh has assigned specific role to these four  accused of causing injuries to himself and to Sardar deceased.  The  injuries sustained by PW-1 Dinesh Singh and by the deceased Sardar  could have been caused by the weapons with which the aforesaid four  accused were alleged to have been armed.  The active participation of  these four accused in the incident in question is, therefore, fully  established. 9.      In view of the fact that PW-1 Dinesh Singh is highly inimical to  the members of Khati community of village Hasnabad and also the  fact that he got only momentary glimpse of the assailants in the light  of the scooter, which got switched off when the engine of the scooter  stopped in the process of accellerating the speed of the same, we do  not consider it safe to maintain the conviction of the accused other  than those who have been assigned specific role.  We may clarify here  that we are not doubting the prosecution case in its entirety but are  adopting the said course of giving benefit of doubt to remaining  accused by way of abundant caution. 10.     In the result the appeal filed by the appellant No. 1 Dev  Narayan, appellant No. 3 Ghisi Lal Khati and appellant No. 7 Hari  Narayan Khati is dismissed.  Mahesh accused has not preferred any  appeal in this Court and has been arrayed as respondent No. 3 in the  present appeal.   The appeal filed by appellant No. 2 Ramesh Khati,

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appellant No. 4 Raju @ Rajesh Prajapati, appellant No. 5 Laxmi  Narayan, appellant No. 6 Bhanwar Lal, appellant No. 8 Rajesh Verma  Khati and appellant No. 9 Babu Lal is allowed.  The conviction of the  aforesaid appellants and the sentences imposed upon them are set  aside.  They shall be released forthwith unless wanted in some other  case. 11.     Ramesh Chandravanshi has not preferred any appeal in this  Court and has been arrayed as respondent No. 2 in the present appeal.   However, as he has not been assigned any specific role in the  statement of PW-1 Dinesh Singh and we have set aside the conviction  of other accused who are identically situate, his conviction also  deserves to be set aside.  Accordingly we set aside the conviction of  Ramesh Chandravanshi (arrayed as respondent No. 2 in the present  appeal) and the sentences imposed upon him by the learned Sessions  Judge, which was affirmed in appeal by the High Court.  He shall also  be released forthwith unless wanted in some other case.