\ \\ xg U HIGH COURT OF WXDHYA 'PRADESH AT J'ABALWR Vs. state o£ M.P. Kheek Ram ( Criminal Appeal No.'49/95 ) /Z/s/1996 i Date of Order ‘ : ‘u yRESENT HON ' BLE SHRI JUST ICE S . K . KULSHRESTHA Shri‘0.P. Singh for the appellant shri‘R.K.Khare, (LA. for the state. ‘ .0...- The Appellant Kheek Ram a has preferred this appeal against his conviction for an offence u/s 304 Part II of the I.P.C. and sentence of 5 years rigorous imprisonment thereunder awarded by judgment , dated 3.12.95 in Sessions trial No.231/1993 passed by the learned Additional Sessions Judge, Mahasumand. 2. The appellant was prosecuted along with six others soy: offences u/s 147,148,307/149,b;92/149 on the allegation that on 12.3.93 at about 10 'a.m. in Madhuban, the appellant along with the said co-accused had £ormed an unlawful assembly which had armed itself pith deadly Weapons with a view to use criminal forces against NaRul», Kamalabai and Baijnath. It was further the case o£ prosecution that in pursuance of the acomon object or this assembly, these accused persons on account of some preVious disputes has proceeded to the £ield of Ishwar Prasad and had assualted Nakul 8 »w ..2 with the sticks(Lathi). The prosecution furthereallege& that when hearing the alarm raiseé by Nakul, his Wife Kamala baa. and son Baignath rushed to save hm, they were belabo-xred by the accused persons w1th the result they d1=o sustained injuries. The report of the incident was lodged by Met. Kamala be; at Pollce Station Baspa and offence was, registered at the Police Station u/s -302,'307,_read with section 34 of the I.P.C. 3 ‘ The appellant along with other acc’il'sed were afrested by tne Police end it is alleged that weapons were seized at the instance of these accused persons. The appellant was thus tried along With the said co-accused for the aforesaid offences. 4. The learnec trial court on consideration of the evidence adduced by the prosecution came to the conclusion that initially the grappling has started between the present appellant and deceased Nakul and the other accused W were t attracted to the scene of the occurence on hearing the commotion. :Ia't was later that these accused had also engaged in the quarrel which included involvement of Kamala bai and Baijnath froai the side of the complainant. The learned Judge, therefore, held that the accused‘had not formed any u‘nlawful assembly and therefore negatived the contention 9 oi: then prosecution'in so far as the committing of offences u/s 147 and 148 of the I P C. was concerned, The learned trial court thereafter proceeded to econSider the nature of the act of thex individual participants £rom amongst. the accused persons. Om finding / by the learned trial court that it was a case where ,u x * re ached ..3 . f ‘l——._._s.1 x a —3_ \ de$eased Nakul and the appellant Keekram had 1nlp1ally engaged in grappling and Qthérswere attracted later on; the learned Judge held that the participants could bemeld liable only for thelr ind1v1dual acts and could not be fastene& any constructive liablllty. 0n the basis of the evidence bf Baijnath(P.W‘.4‘), the 1. i leanned trial court came to the conclusion that in V l so far as the injuryes inflicted upon Kamala bai was concerned only co—dccused Maahv and Bihari were responsible and in this view of the matter‘§a’n‘d finding, it was notaacase for an offence u/s 307 LP.C. ii‘he learned Judge convicted the co-accused Madhav and » Bihari for offence u/s 323 and sentenceieach of them ’ 4 . " ' to rigorous imprisonment o£ one year and £ine of Rs.1000/—. It was stated at the bar that the two co—accused had not preferred any appeal against their conviction and sentence. x ' 5.; ‘ Considering the case with reference to charge u/s 302 of the I.P.c. for the murder of Nakul, the learned Jucige found that since the s Weapsont' ‘useé was merely la lathi and the accused appellan’cjihad also received injuries, it appears that the accused had used his weapon with some force. The learned trial court, therefore, ruled outany intention to commit murder and, instead, found that the act of the accused responSible for the death of Nakul fell u/s 304 part—II or the I P c. 6:. In dealing withrthe assualt upon deceased Nakul, the learned trial court has placed reliance solely on the ta ....4 l . . i eVidence of P.W.6. Ishwar Pra3ad, s'the other '~ witneases examined b’y the proSecution merely referred Vtox the general participation of the accused persons. P.VJ;6 Ishwar Prasad stated in his deposition that the accused Kheekramcuring the course of the g1rappling dealt a blow over Nakul and Nakul also bee; Kheekram. It is on the basis of this story that the learned trial court. has held that the present appellant was responsible £or caueing theedeath of Nakul. From t’hdtestimony of P.w.6 Ishwar Prasad, it would appear that. Ishwar Prasad had not disclosed this £act in ‘ rile statement u/s 161 0;. the Cr P C. the accused (Ex 13-3) that/had assualted the deceased. Though the learned counsel for the appellant on the basis ofthe statement made by other witnesses has greatly stressed that Ishwar Prasad could not have Witnessed the lncldent \ as the other vntnesses had not deposed to about his / 0theFY:L §01ng by the statement, 1t 1s olear that the testimony of P3.¥W'..6.7Ishwar Prasad especially account of the ommission o£ this fact in” his statement to the Felice’cannot safely be acted upon to found a conviction. Under these circumstances, the very foundation on which the conviction is based-becomes shaky and benefit of’doubt must go to the appellant. presence, even ‘ Accordingly we find that the prosecution has failed “N against to establish the offence/ x the present apoellant. In the result this appeal is allowed. ’fhe conviction and ‘ sentence massed against the appellant are set aside. The appellant be set at liberty if not required in any other case . \l g sal— a