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PETITIONER: NIRANJAN PRASAD & ORS.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       14/03/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) G.B. PATTANAIK (J)

CITATION:  JT 1996 (3)   398        1996 SCALE  (2)724

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE,J.      26 persons  including the  10 appellants were arraigned before the  Sessions  Judge,  Jabbalpore  for  rioting,  two murders and  other allied  offences. The  trial ended  in an acquittal  of   all  of  them;  and  aggrieved  thereby  the respondent-State of  Madhya  Pradesh  filed  an  application seeking leave  to appeal  under Section 378 Cr.P.C. The High Court however  granted leave  only against the 10 appellants (the respondents  therein). After  hearing the  parties  the High Court  allowed the  appeal, set  aside the acquittal of the 10  appellants and  convicted and sentenced each of them for offences punishable under Sections 148, 325/149, 302/149 (one count)  I.P.C.. Aggrieved  thereby the  appellants have filed the present appeal under Section 379 Cr.P.C.      Briefly stated  the prosecution case is on July 2, 1981 at or about 10 A.M. when Gajadhar (P.W.3) alongwith his sons Bhagwat and  Lakhanlal and  wife Kusumbai  were  cultivating their land, which is at a short distance from their village, the accused  persons came  there variously  armed. While the appellants Niranjan  Prasad and  Narayan Prasad (since dead) had rifles  with them  the other  appellants  were  carrying weapons like  lathis spears  and pharsas. Seeing the accused persons coming  in a  riotous mood  Gajadher and  his family members tried  to flee  towards their  village but could not succeed as  on the  way the miscreants caught them up on the road near  the house  of Khoobchand (P.W.4) and some of them started beating  Gajadhar with  the weapons  in their hands. When his  son Lakhanlal  came to  his rescue  the  appellant Sitaram assaulted  him on  his head  with a  ballam  (spear) while some  of the  other appellants assaulted him with iron rods. Khoobchand  then came  to  their  rescue  only  to  be assaulted by  some of  them. It  is the  further prosecution case that when they found Santkumar, another son of Gajadhar coming towards  the road  the appellants  Narayan Singh  and Niranjan Singh  fired at him. Then the miscreants fled away.

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An information about the incident was given by one Rametibai at the  Sihora police  station immediately  thereafter which was entered  in the  station diary.  After making that entry ASI Dayaram  Dube (P.W.27)  went to  the place of occurrence and first  recorded the  statement of  Khoobchand which  was treated as  F.I.R. He  then sent  the four  injured  to  the Hospital where  Santkumar and  Lakhanlal  succumbed  to  the injuries in  that very night. On completion of investigation P.W 27 submitted chargesheet.      To prove  its case  the prosecution  relied principally upon the  ocular version  of the  incident as  given out  by Gajadhar  (P.W.3).   Khoobchand  (P.W.4),   Raj  Kumari  Bai (P.W.5),  wife  of  the  deceased  Santkumar,  and  Kusumbai (P.W.6), wife  of Gajadhar  and a  dying declaration made by Santkumar.      On perusal  of the  judgment of the trial Court we find that  the  principal  grounds  which  weighed  with  it  for recording the  order of  acquittal  were  that  the  medical evidence that  was adduced  by the  prosecution to prove the injuries on  the person of the deceased Lakhanlal P.Ws.3 and 4 completely  belied the ocular version of the witnesses and that their version regarding the murder of Santkumar was not at all  reliable. Besides,  the trial  Court found  that the evidence regarding  the dying  declaration allegedly made by Santkumar was unsatisfactory.      In appeal the High Court concurred with the findings of the trial  Court regarding  the murder  of Santkumar as also the dying  declaration. The  High Court, however, found that the findings  of the  trial Court  that the medical evidence did not  fit in  with the  evidence of the eye-witnesses was not a  proper one.  According to the High Court the evidence of  the  eye  witnesses  clearly  established  that  the  10 appellants  herein   committed  rioting  armed  with  deadly weapons and  in prosecution  of the  common  object  of  the unlawful assembly they committed the murder of Lakhanlal and also caused grievous hurt to P.Ws. 3 and 4.      To ascertain  whether the  above finding  of  the  High Court as  against the  above 16 appellants is correct or not we have  carefully considered  the medical  evidence as also the evidence  of the  eye-witnesses in  the context  of  the prosecution case - as delineated through the eye witnesses - that the  deceased as  also the  injured were assaulted with sharp cutting  weapons. Surprisingly,  however, the evidence of the doctor who held postmortem examination shows that the deceased Lakhanlal  had no injury which could be caused by a sharp cutting weapon; and, indeed, he had sustained only one injury which  could be caused, according to the doctor, by a blunt weapon  only. Similar is the state of medical evidence so far  as the injured are concerned. If on the basis of the objective findings  of the  doctor the  trial Court found it unsafe to  rely upon  the ocular  version of the incident as given by the above four witnesses it cannot be said that the finding of  the trial  Court in  this regard was against the weight of  evidence or  perverse so  as to  justify the High Court to set aside the same.      We, therefore, allow this appeal set aside the impugned judgment and  acquit  the  appellants  of  all  the  charges levelled against them. Since the appellants are on bail they are discharged from their respective bail bonds.