Mahavir Singh vs State Of Madhya Pradesh

The brief facts of the case as culled out from the case of the prosecution are that on 26th December, 1987 at about 1 p.m. while Gambhir Singh (PW 7) (brother of the deceased) was having lunch at his home, the appellant along with a group of co-accused persons, each armed with deadly weapons rushed to his house hurling abusive filthy words and picked up a quarrel with his brother Jagannath Singh (deceased) who was sitting outside on a platform (Chabutara) along with his nephew Bir Singh (PW 11). When Jagannath Singh (deceased) raised objection to their behavior, the appellant fired a gunshot in the abdomen of the deceased as a result of which he fell down on the ground and succumbed to the injuries.

Gambhir Singh (P.W. 7) carried the body of the deceased to the police station, Lahar on a bullock cart and lodged the FIR (Annexure P-1) at 4.15 PM on the same day. Dilip Singh Yadav (PW-13) prepared inquest memo and Dr. A. K. Upadhyay (P.W. 12) conducted autopsy on the dead body. On the next day, Dilip Singh Yadav (PW 13) seized blood stained soil and plain soil from the place of occurrence, as per seizure memo. He also seized a gun, 12 live cartridges and 9 empty cartridges from the possession of appellant Mahavir Singh, an axe from Sobaran (co-accused) and a lathi from Kanched Singh (another co-accused) as per seizure memo and sent them to the Forensic Science Laboratory at Sagar. Consequently, statements of witnesses were recorded under section 161 of Cr.P.C., spot map was prepared and Charge-sheet was filed against the appellant under sections 302, 147, 148 and 149 of the IPC in the Court of Judicial Magistrate First Class, Lahar who committed the case to Court of Sessions for Trial. The Trial Court framed charges u/s 302 and 148 of IPC against the appellant and under sections 148, 302/149 of IPC against co-accused. All the accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, the prosecution has examined 13 witnesses and marked several Exhibits while the accused examined none in defence and no exhibits were marked on his behalf.

The Trial Court by its judgment and order dated 30th November, 1994 acquitted the appellant from the alleged offences mainly on the ground that there are contradictions in the evidence of eyewitnesses to that of medical evidence, prosecution has failed to prove beyond reasonable doubt formation of unlawful assembly with a motive of committing murder of the deceased and also failed to establish that the bullet had been fired with the firearm seized from the appellant.

Dissatisfied with the Judgment of the Trial Court, the State preferred an appeal before the High Court claiming that the judgment of the Trial Court is perverse and illegal inasmuch as it did not appreciate the prosecution evidence in right perspective and ignored the evidence of the eyewitnesses. The High Court, on a reanalysis of evidence of prosecution witnesses and other material available on record came to the conclusion that the Trial Court was right in acquitting the other co-accused persons but found fault with the acquittal of the appellant under Section 302 IPC. The High Court, therefore, partly allowed the appeal by confirming the judgment of the Trial Court in respect of the charge under Section 148 and convicted the appellant herein for the offence under Section 302, IPC and sentenced him to undergo imprisonment for life. Aggrieved by the Judgment of the High Court, the appellant approached this Court in appeal.

In the background of this factual matrix, learned counsel for the appellant has advanced his arguments that since the appellant and victim parties have prior enmity over some pending criminal cases, the family members of the deceased, i.e., Gambhir Singh (PW 7), Shanti Devi (PW 8), Bir Singh (PW 11) in connivance and with the help of a pocket witness Madho Singh (PW 9) concocted the story, by projecting himself as an eyewitness, and falsely implicated the appellant. According to him, this fact is clearly established with the contradictions in the medical evidence and the unreliable evidence of the alleged interested eyewitness. The presence of Gambhir Singh (PW 7), at the time of occurrence, as heavily relied upon by the prosecution, proves to be false in the light of evidence of Bir Singh (PW 11) who nowhere in his testimony mentioned that Gambhir Singh (PW 7) alone came out of the house and witnessed the incident and Madho Singh (PW

9) claimed that soon after the shooting, Gambhir Singh (PW 7), Bir Singh (PW 11) and Shanti Devi (PW 8) came out of the house and therefore the accused fled away from the spot. It is also contended that the alleged eyewitnesses Gambhir Singh (PW 7), Bir Singh (PW 11) and Shanti Devi (PW

8) was not mentioned in the FIR, there is positive evidence on record to establish her presence at the time of incident along with other eyewitnesses and this fact has been established by their corroborative statements and there is no reason to disbelieve their statements. Here it is worthwhile to mention that both the Courts below formed a common opinion that the prosecution has failed to prove the charges under Sections 148 and 302/149 of IPC against the co-accused and discharged them from those charges. The disagreement between the Trial Court and the High Court is only in respect of the charge under Section 302, IPC against the appellant.

Resultantly, the appeal is allowed and the judgment of conviction and order of sentence passed by the High Court is set aside. Consequently, the appellant shall be set at liberty forthwith if not required in any other case.