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2003 DIGILAW 653 (MP)

Jaggu v. State of M. P.

2003-05-02

N.K.JAIN, S.L.KOCHAR

body2003
JUDGMENT Kochar, J. -- Being dissatisfied with judgment dated 8.11.1996, rendered by the XII Addl. Sessions Judge Indore in Sessions Trial No.33/95, thereby convicting the appellants for the offence under section 302/34 IPC and sentencing them each to suffer imprisonment for life with fine Rs. 500/-, in default of payment of fine, to suffer further additional R.I. for one month, the appellants have preferred this appeal. Briefly stated, the facts of the prosecution case as unfolded before the trial Court were that on 13.10.1992 in the noon, Mukesh (PW 8) alongwith the deceased Kailash and Deepak Choudhary (PW 6) were standing near the betel shop of Anil. At about 2.10 p.m. deceased Kailash and Rajesh were chitchating at the shop of Rajesh. At that time appellant Jaggu alias Jagdish and Dharma reached over there and with intent to commit murder of Kailash, started assaulting Kailash by means of scissors. Kailash sustained several injuries. Mukesh (PW 8), Deepak (PW 6) and Rajesh (PW 7) tried to save the deceased, but the accused persons fled away from the scene of occurrence. Injured was taken to the M.Y. Hospital, Indore in an auto-rickshaw. Mukesh (PW 8) lodged the First Information Report (Ex. P-7). Police Registered the case under section 307/34 IPC. Kailash breathed his last in the hospital. The offence was converted into one under section 302/34 IPC. Police prepared the spot map, seized the weapon of offence, collected plain and blood-stained earth and sent them to the Forensic Science Laboratory for examination. Dr. Suresh Kumar (PW 13) conducted the autopsy on the dead body of Kailash. Postmortem report is Ex. P-20. After usual investigation, the accused-appellants were charge-sheeted for the aforementioned charge. The appellants denied their guilt. They took the plea of false implication. Accused Dharmendra took the plea of alibi. After trial, finding the appellants guilty, the trial Court convicted and sentenced them as indicated above. We have heard Shri Jaisingh learned Senior counsel assisted by Shri Viveksingh for the appellants and Shri G. Desai, learned Deputy Advocate General, appearing for the State and perused the entire record. Having regard to the postmortem report (Ex. P-20), statement of Dr. Suresh Kumar (PW 13) and the statements of the other witnesses examined by the prosecution, it is crystal clear that the deceased died a homicidal death. Having regard to the postmortem report (Ex. P-20), statement of Dr. Suresh Kumar (PW 13) and the statements of the other witnesses examined by the prosecution, it is crystal clear that the deceased died a homicidal death. It emerges from the record that the prosecution has examined as many as five eye witnesses but; only PW 6 Deepak and PW 8. Mukesh have supported the prosecution case and rest of the witnesses turned hostile. The conviction of the appellant is based on the testimony of these two eye witnesses. PW 6 Deepak has named only appellant Dharma in his statement. According to him, he failed to identify the other assailant, because he saw him from backside while causing injury to the deceased. This witness has also stated that the deceased was assaulted by two persons, but he could not identify the another one on the spot. So far as the appellant Dharma is concerned, he has given positive evidence about his participation and nothing incriminating has been elucidated by the defence in his cross-examination. Therefore, his testimony finds corroboration from the medical evidence as well as the statement of PW 8 Mukesh. We find absolutely no reason to disbelieve this witness regarding culpability of appellant Dharma. This witness has not been declared hostile by the prosecution for not supporting the prosecution case regarding the appellant No. Jaggu alias Jagdish. Therefore, the prosecution is bound by his testimony. (See Sukhram v. State of M.P. 1989 JLJ 121 = AIR 1989 SC 772 ). The another witness is PW 8 Mukesh. This witness is the brother-in-law of deceased Kailash and faced prosecution alongwith Kailash and other co-accused Naresh in the year 1990 for commission of murder of brother of appellant Jaggu alias Jagdish. The deceased Kailash was done to death by the appellants because of inimical terms. In view of this positive evidence and admission, this witness can be termed as interested and partisan witness. Therefore, his testimony is to be appreciated with care and caution. He has lodged the First Information Report (Ex. P-7) immediately on the same day naming the appellants as assailants of the deceased Kailash. Learned counsel for the appellants has submitted that this witness has admitted in his cross-examination that he did not mention the address of appellant Dharma in the First Information was brought into existence anti date and time. He has lodged the First Information Report (Ex. P-7) immediately on the same day naming the appellants as assailants of the deceased Kailash. Learned counsel for the appellants has submitted that this witness has admitted in his cross-examination that he did not mention the address of appellant Dharma in the First Information was brought into existence anti date and time. At this juncture, it is pertinent to note that the incident took place on 13.10.1992 and on the same date, the first information report was lodged, but this witness was examined on 29.6.1996, i.e. almost after three and a half year. Therefore, much Wight cannot be attached to such discrepancy in the statement of this witness. Since this witness is an interested and partisan witness, therefore his testimony must be scrutinised with great care and caution. To rely on his testimony we seek some corroboration from the independent material particulars and that is available only from the statement of PW 6 Deepak who has named only the appellant No.2 Dharma, for causing injuries by sharp edged weapon to the deceased. Therefore, in our considered opinion, against appellant No.1 Jagga alias Jagdish the prosecution has failed to prove its case beyond all reasonable doubt. Therefore, he is entitled for getting benefit of doubt. So far as appellant No.2 Dharma alias Dharam is concerned, there is consistent evidence of PW 6 Deepak and PW 8 Mukesh duly corroborated by the evidence of Dr. PW 13 Suresh Kumar. Therefore, his conviction and sentence deserve to be affirmed. In the result, this appeal is allowed in part. The appeal of appellant No. 1 Jagga alias Jagdish is allowed. His conviction and sentence are hereby set-aside. He is on bail. Therefore, his bail bonds shall stand discharged. The appeal of appellant No.2 Dharma alias Dharam stands hereby dismissed.