Madhya Pradesh High Court
The State Of M.P. vs Teeka Ram & Ors. on 27 July, 2017
Bench: S.K. Gangele, Subodh Abhyankar
1 Cr.A 326/1994 &
Cr.R 535/1993
HIGH COURT OF MADHYA PRADESH : JABALPUR
CRIMINAL APPEAL NO. 326 of 1994
State of Madhya Pradesh
Vs.
Teekaram & others
CRIMINAL REVISION No. 535 of 1993
Bablu @ Virendrakumar Sharma
Vs.
Teekaram and others
Coram :
Hon'ble Shri Justice S.K. Gangele, J
Hon'ble Shri Justice Subodh Abhyankar, J
Whether approved for reporting : Yes/No
Shri Prakash Gupta, Panel Lawyer for the State.
Shri Siddharth Datta, Advocate for complainant - Bablu @
Virendrakumar Sharma
Shri Sankalp Kochar, Advocate for the respondents..
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JUDGMENT/ORDER
(Passed on the ...... day of July, 2017)
PER: Subodh Abhyankar, J.
1. Both these cases are being disposed of by this common judgment / order as both of these arise out of an order of acquittal dated 05.07.1993 passed in Sessions Trial No. 47/90 by Second Additional Sessions Judge, Sagar. By the aforesaid order, leaned Judge of the trial Court has acquitted respondent No.1 A/1 Teekaram, respondent No.2 A/2 Munna, respondent No.3 A/3 Marsara and respondent No.4 A/4 Balmukund of the offences under Section 302 of the IPC. One Lakhan 2 Cr.A 326/1994 & Cr.R 535/1993 was also tried along with the aforesaid accused persons but due to his death during the trial, the case against him has abated.
2. In brief the facts of the case are that on 19.08.1989 a report was lodged by Pw/10 Babloo @ Virendra Kumar Sharma that he resides at Barkoti Kala Tigadda and runs a tea hotel /shop and Ratan Sharma happens to be his elder brother. It is further stated by him that on account of a dispute which took place around 2-1/2 months ago regarding jeep booking, Ratan Sharma was assaulted by accused Teekaram, Lakhan, Himmu, Nattha and Omprakash by Lathis and rods and in order to take revenge, around 1-1/2 months ago, Ratan had also assaulted Lakhan Patel, Munna Lohar etc with acid and on account of such dispute, on 19.08.1989 when he was standing at his hotel at Tiggada, at around 4' O Clock in the evening, he saw his brother running towards him and behind him there were accused Teekaram holding a gun, Marsara @ Omprakash holding a sword, Balmukund Brahmin holding a Ballam and and Munna Lohar. They were chasing him and shouting that he should not be spared. At that time, accused Teekaram fired a shot which hit the right arm of Ratan. After hearing the commotion, Ratan's mother Pw/8 Gulabrani, sister-in-law Pw/9 Rajobai and other witnesses Pw/6 Jamna Chamar and Pw/5 Jagdish Sharma came there. By this time, Ratan had entered into the house of Pw/3 Gulab Singh Thakur and closed the door from inside. They saw that outside the house of Gulab Singh Thakur, A/1 Teekaram was holding a gun, A/3 Marsara holding a sword and A/2 Munna Lohar holding a hand grenade, A/4 Balmukund holding a Ballam (iron rod with pointed edge). At that time, Babloo, his mother and his sister-in-law begged for the life of Ratan but A/1 Teekaram jumped over the roof of the house and fired a shot inside and, thereafter, A/3 Marsara opened the door and gave three sword blows on the head of Ratan Sharma, A/4 3 Cr.A 326/1994 & Cr.R 535/1993 Balmukund hit with an iron rod on his right hip and the chest and, thereafter, the four accused persons ran away from the spot. Ratan was taken to the hospital but was declared as brought dead and, thereafter, Babloo lodged an FIR at around 17:15 PM on the basis of which Crime No. 80/89 was registered under Sections 302/34 of the IPC against the accused persons.
3. Dr. M.K. Naik who has been examined as P.W.16 had prepared post-mortem report (Ex. P/21) wherein following injuries were found on the person of the deceased :-
(i) Incised wound - 17 cm X 3 cm X 5 cm on the right side of the face going deep into the bones also.
(ii) Incised wound - 11 cm X 0.5 cm equally deep as injury No.1 which had cut the right ear.
(iii) Incised wound - 1/2 cm X 1 cm, bone deep on the right side of the skull cutting through the right ear.
(iv) Gun shot wound - 4 cm X 2-1/2 cm on the right side of the auxiliary region with blackening. From this wound synthetic packing material was also recovered and there were many pellets in this wound also, in the left kidney.
(v) Gun shot wound - 7 cm X 5 cm on the left arm with
blackening.
(vi) Gun shot wound - 3 cm X 2-1/2 cm with blackening.
(vii) Gun shot wound - 0.5 cm X 0.7 cm on the right chest.
(viii) Gun shot wound - 0.7 cm X 0.5 cm - skin deep on the chest.
(ix) Gun shot wound - 0.7 cm X 0.5 cm - skin deep.
(x) Gun shot wound - 0.7 cm X 0.5 cm - skin deep.
(xi) Abrasion - 13 cm X 02 cm on the right side of back
4. In the present case, prosecution has examined 17 witnesses, whereas defence has examined 5 witnesses. Out of 17 witnesses examined by the prosecution, as many as five witnesses claim to be eye-
witnesses and others are the witnesses of investigation such as seizure 4 Cr.A 326/1994 & Cr.R 535/1993 etc.
5. During the course of investigation, the accused persons were arrested and from A/1 Teekaram, a 12 bore gun was seized vide Ex.P/8, from A/3 Marsara, a sword vide Ex.P/9, from A/2 Munna, a hand- grenade vide Ex.P/10, from A/4 Balmukund, a Ballam vide Ex.P/11. All these articles were seized in the presence of Pw/11 Ramprasad and one Vinod Sharma who has not been examined.
6. The learned judge of the trial court, vide its order dated 05.07.1993 has acquitted the respondents from all the charges leveled against them u/s.302/34 of IPC mainly on the ground that the ocular evidence is not consistent with that of the medical evidence and also that there have been material omission and contradictions in the testimony of the prosecution witnesses.
7. Shri Prakash Gupta, learned counsel for the Appellant State has submitted that the FIR-Ex.P/16 in the present case was lodged on 19.08.1989 at 17:15 hrs within half hour of the incident by Pw/10 Babloo @ Virendra Kumar who is younger brother of the deceased Ratan and, therefore, the statement made by Babloo cannot be doubted. It is further submitted that the trial Court has erred in holding that the statement of this witness does not match with the medical evidence. It is further submitted that the learned Judge of the trial Court ought to have permitted the prosecution to cross-examine prosecution witnesses Pw/6 Jamuna and Pw/5 Jagdish since their cross-examination itself was preferred by the defence after five months and there is all likelihood of this witness has been won over by the defence. It is further suggested that the deceased himself had hand grenade in his bag and the death may have resulted on account of explosion of this bomb.
8. Learned Counsel for the State has also submitted that the order 5 Cr.A 326/1994 & Cr.R 535/1993 of acquittal passed by the trial Court is palpably wrong and it is submitted that the acquittal is based upon illegal and improper application of evidence and should be set aside.
9. On the other hand, learned counsel for the respondents accused has supported the order of acquittal and has submitted that no illegality has been committed by the trial court in acquitting the respondents and also drawn attention of this court towards the scope of interference in an appeal against acquittal. Learned counsel has also relied on the decisions of the Apex court in the case of V. Sejappa v. State, (2016) 12 SCC.
10. Heard the learned counsel for the parties and perused the record. Before adverting to the facts of the case, it would be apt to refer to a latest decision of the Apex Court in the matter of appeal against acquittal. In V. Sejappa v. State, (2016) 12 SCC 150, the Hon'ble Apex court has held as under in para 22 and 23 :
22. If the evaluation of the evidence and the findings recorded by the trial court do not suffer from any illegality or perversity and the grounds on which the trial court has based its conclusion are reasonable and plausible, the High Court should not disturb the order of acquittal if another view is possible. Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. In State v. K. Narasimhachary, this Court reiterated the well-settled principle that if two views are possible, the appellate court should not interfere with the acquittal by the lower court and that only where the material on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court. The same view was reiterated in T. Subramanian v. State of T.N.
23. In Muralidhar v. State of Karnataka, this Court noted the principles which are required to be followed by the appellate court in case of appeal against order of acquittal and in para 12 held as under: (SCC pp. 735-36) "12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu, Madan Mohan Singh, Atley, Aher Raja Khima, Balbir Singh, M.G. Agarwal, Noor Khan, Khedu Mohton, Shivaji Sahabrao Bobade, Lekha Yadav, Khem Karan, Bishan Singh, Umedbhai Jadavbhai, K. Gopal Reddy, Tota Singh, Ram Kumar, Madan Lal, Sambasivan, Bhagwan Singh, Harijana Thirupala, C. Antony, K. Gopalakrishna, Sanjay Thakran and Chandrappa. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals 6 Cr.A 326/1994 & Cr.R 535/1993 against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified.
Unless the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
11. Learned counsel for the petitioner has also relied upon the decision of the Apex Court in the case of Sejjappa Vs State reported in (2016)12 SCC 150 as also 1976 SC 951, (2015)11 SC 132, (2016)12 SCC 150, (2015)10 SCC 230, (2017)1 SCC 529, (2016)10 SCC 220 - 506 and (2010)4 MPHT 436.
12. In the light of the aforesaid guiding principles, we have to appreciate the evidence on record and form an opinion regarding the finding of acquittal as recorded by the learned trial court.
13. From the narration of the eye witness account it has come on record that the accused persons were armed with the weapons like, a 12 bore gun, a Sword, a Ballam (Iron rod), and a hand grenade. From the deposition of Dr. M.K. Nayak (PW-16), it is apparent that the deceased had received as many as 11 injuries and out of these 11 injuries, first three injuries were caused by a sharp edged weapon while the other injuries 7 Cr.A 326/1994 & Cr.R 535/1993 No.4, 5, 6, 7, 8, 9 & 10 cannot be caused by a gun shot. In respect injuries No.4, 5 and 6 it is stated by the doctor in his cross examination that these injuries cannot be caused by one fire only and he had also found extracting material in the injuries No.4, 5 and 6. So far as the injuries No.7, 8, 9 and 10 are concerned, it is stated that these injuries cannot be caused by direct gun shot and in fact appears to have been caused by the material by which injuries No.4, 5 and 6 have been caused. So far as injury No.11 is concerned, it is stated that the same may be caused by falling on the ground. It is further stated that there is no injury found on the body of the deceased, which may be caused with the aid of Ballam(iron rod). Thus on the basis of aforesaid observation made by the doctor, it can reasonably be presumed that the injuries No.4 to 10 were caused by material which was collected from the spot where the deceased Ratan lay dead and most probably the same must be a hand grenade which is said to be used while the commission of offence because from the body a lot of synthetic packing material and pieces of cardboard were also recovered which certainly are not the ingredients of a bullet. The aforesaid discussion narrows down the number of suspects from four to two only viz. A/3 Marsara and A/4 Munna who are allaged to have held sword and and handgranade respectively.
14. Still, from the evidence brough on record by the prosecution, it is apparent that Pw/1 Vinod Kumar is the younger brother of deceased Ratan but admittedly he was not present on the spot and his evidence is in the nature of heresay only.He is also a witness to the various seizure memos such a sword, rod, gun etc.
15. Devendra who is examined as P.W.2, has been turned hostile by the prosecution.
16. Gulab has been examined as P.W.3. He is the owner of the house 8 Cr.A 326/1994 & Cr.R 535/1993 in which Ratan was murdered. He has submitted that when he got back to his house, he found debris everywhere. He has further stated that from his house police had seized a bag in which a Katar was kept. Surprisingly no explanation has been offerd in this behalf by the prosecution but a suggestion has been made by the defence that the same belonged to deceased Ratan.
17. Ramprasad has been examined as P.W.4. He is the Kotwar and is a witness to various items seized from the spot but he has admitted that the villagers were terrorized by deceased Ratan who was already absconding in many criminal cases.
18. Jagdish has been examined as P.W.5. He claims to have witnessed the incident. According to this witness, he saw the entire incident and narrated the same story as that of the complainant Pw/10 Bablu, who had lodged the FIR. Pw/5 has stated that Marsara got into the house of Gulab Thakur where Teekaram fired shots and Marsara gave sword blow on the head of the deceased. Balmukund also hit with rods on his stomach and chest. At that time, Lakhan also came and told Teekaram to left Ratan alone as he had to take revenge from Ratan. This witness has also identified the accused persons in the Court room. PW-) Jagdish has also stated that when he got into the house where the deceased was lying, the residents of the said house who were present on the spot but in his deposition, the owner of the house Gulab (PW-3) stated that he was not on the spot at the time of accident, in fact, he has stated that none of the residents of the house were in the house when the incident took place. Jagdish (PW-5) has also admitted in his cross-examination that his statements were recorded on the other day of the incident, however it is observed by the Trial Court that no such statements are on record. Similarly Jamna (PW-6) in his cross examination stated that when the 9 Cr.A 326/1994 & Cr.R 535/1993 incident was taking place at that time the mother and wife of the deceased Ratan had gone to police station to fetch them and he did not see his younger brother Babloo with them and when the police personnel arrived at that time the accused persons were present on the spot but when challenged they ran away from the spot. He has further stated that when he saw Ratan running on the road at that time he heard the sound of hand grenade. Thus, this witness has given an entire new story running contrary to the story of prosecution which clearly indicates that he was not present on the spot as it is nobody's case that when the deceased was running, at that time the hand grenade was used by one of the accused persons. He has further stated that at the time of incident, the mother and wife of the deceased had covered the deceased with their own bodies but the accused person did not listen to them and kept on hitting.
19. Gulabrani has been examined as P.W.8. She is the mother of the deceased Ratan and according to her, when she was at her home, she heard somebody shouting and saw Ratan running on the street and behind him were Teekaram armed with a gun and a belt of cartridges. Behind him was Marsara who was holding a sword, behind him was Balmukund holding a Ballam and lastly there was Munna Lohar but she could not make out what weapon Munna Lohar was armed with. She also saw that her son Ratan entered into the house of Gulab Gour and closed the door from inside and at that time, four accused persons also came there (outside the door of Gulab') and were swearing that they would kill Ratan today and at that time she along with her daughter-in-law Rajibai and son Babloo went to Gulab's house and begged the accused persons to leave Ratan alone but they would not listen to her and Teekaram got over the roof of Gulab's house and asked the other accused persons to stand there. He fired a shot from above at Ratan whofell down and also 10 Cr.A 326/1994 & Cr.R 535/1993 shouted for help. Teekaram also got down and Marsara opened the door where Ratan was lying. Marsara assaulted Ratan three times allagedly by sword and Balmukund also hit him with Ballam and she has also stated that on which part of the body injuries were caused by Ballam. At that time, Teekaram also fired two shots from the threshold of the door. At thesetimes, Lakhan, who happens to be the son of Teekaram, also swore against the deceased and threw a grenade in the house. Lakhan also threw a grenade on the house and the deceased succumbed to injuries on the spot only then her son Babloo took Ratan away to the hospital. She is also a witness to the seizure of gun, sword and Ballam. A suggestion is also put to her in cross-examination that nobody from the crowd who had gathered there came to save Ratan to which she has denied. She is also confronted with her police statement Ex. D/1, wherein she has not stated that she had begged all the accused persons to spare Ratan but they would not listen. She has also stated that she had informed the police that Teekaram, Marsara ran after Ratan with a sword. She has made material alterations in her police statement Ex. D/1 which has been put to her. She says that she begged the accused persons to leave Ratan but this is not mentioned in her police statement.
20. Jamna has been examined as P.W.9. He also claims to be an eye-witness of the incident. According to him on the date of the incident, when he was going from Sagar to Barkoti in a jeep, at that time Jagdish also alight from the jeep and they were standing at a tea shop. At that time, he saw Ratan being chased by Teekaram armed with a gun, Marsara armed with a sword, Balmukund with a Ballam and Munna empty handed. At that time, Teekaram fired a shot at Ratan and Ratan entered into the house of Gulab Thakur and behind him were Teekaram, Marsara, Balmukund and Munna. On hearing Ratan's cry, Ratan's wife and mother 11 Cr.A 326/1994 & Cr.R 535/1993 also came there and stood beside this witness. At that time, accused persons where shouting that Ratan be killed. Then Teekaram got over the roof of Gulab's house and removed the roof-tiles and fired a shot. He heard deceased Ratan shouting from inside the house to save him. At that time, Babloo (younger brother of the Ratan), mother of Ratan and sister-in-law also beg the accused persons to spare him . Teekaram got down from the roof and asked Marsara to break the door open and Marsara did the same and hit Ratan on the head with sword. Balmukund also assaulted Ratan with Ballam in his stomach and chest. Teekaram fired a shot from the gun. At that time, Lakhan also came there and told Teekaram that he has to settle some score with Ratan also and threw a grenade which fell on the roof and then all the five accused persons ran away from the spot. Babloo's mother and sister-in-law went to police station and police took away Ratan on a cot in a jeep. This witness has been cross-examined extensively. In his cross-examination there are many omissions and contradictions in respect of his earlier statement given to the police under Section 161 of the Cr.P.C. on 19.08.1989 .. The examination-in-chief of this witness took place on 09.08.1991 whereas the cross-examination of this witness took place on 13.01.1992.
21. Rajobai, who happens to be wife of the deceased, is examined as P.W.13. She also claims to be an eye-witness of the incident and has reiterated the statement given by her to the police. This witness is also examined in detail regarding the manner and minute aspects of the incident. She has also stated that she begged Balmukund to spare her husband but he did not listen. She has also stated that she saw the accused persons for the first time on the date of the incident itself and she was never put to any test-identification parade. She has also attributed the overt-act on Teekaram who fired shots from the gun. Marsara who 12 Cr.A 326/1994 & Cr.R 535/1993 assaulted with sword, because of which his one ear also got cut. In cross- examination, she was also asked about the length of the sword. She has also denied that she and her mother-in-law went to police station and brought them to the spot. She does not even remember as to whether she has given any statement to the police or not.
22. Babloo @ Virendra son of Hariram Sharma has been examined as P.W.10. He happens to be younger brother of deceased Ratan Sharma. He has also stated that he had no hotel at Gorjhamar but he has opened it after the death of his brother. Suggestions have been made to him that his brother was a habitual offender and also that he was also tried for a case of bank robbery. A suggestion has also been made to him that some accused persons were roaming around the area since the morning to kill his brother. He has stated in his cross-examination that the door was forced open by Marsara and after the door was opened, Teekaram also fired a shot and thereafter, Marsara assaulted the deceased with a sword. He has also been cross-examined on the point that in his police statement he has stated that Ballam was used by the blunt side which is also not correct because . In para 31 he has also stated that since he hardly leaves his hotel, hence he is not aware of the people residing at Barkoti, but this statement makes his testimony doubtful for the reason that in a small village most of the residents are known to each other and in this case Pw/19 has not been able to tell the names of the adjescent shop owners . Surprisingly he has also stated in para 52 of his deposition that he does not know Jagdish and Jamna and is also not aware if they were standing near his hotel on the date of incident whereas he has named these two persons in the FIR itself. This is probably to show that these two witnesses were independent witnesses. A suggestion has also been given to him that since Ratan had enitmity with the 13 Cr.A 326/1994 & Cr.R 535/1993 Kuchbadiya and Baheliya community who used to bore a grudge against Ratan on account of his teasing the women of their community.
23. Ramprasad has been examined as P.W.11. He is a witness of seizure of weapon. He has not supported the case of the prosecution and has been declared hostile by the prosecution. He was also asked that when they were taking the deceased Ratan in a jeep, at that time his himself, his mother's and sister-in-law were drenched in blood to which he replied in positive but this witness has been belied by the statement of I.O. Pw/15 Kailash Chand Pali who has in para 51 of his deposition clearly stated that no such blood was found on the clothes of these witnesses hence the same were not seized, the aforesaid contradiction is material in nature and shakes the prosecution story by its shoulders because the absence of the blood from the clothes of the eye witnesses can lead to only one hypothesis and that is the absence of the eye witnesses from the spot. It is unthinkable that after watching the deceased Ratan murdered in a broad day light, it cannot be imagined that none of the eye witnesses who were either acquainted with the deceased or his close relative tried to caught hold of his body from which the blood was oozing out.
24. Kailash Chandra Pali has been examined as P.W.15. He happens to be the investigating officer of the case and has stated that he had taken the statements of witnesses as he was informed about the incident. In para 25 he has admitted about the criminal antecedents of the deceased Ratan against whom offence u/s.399, 402, 307 of IPC were registered and who was already absconding. It is also admitted that he had fired a gun on the police party also and that other offences are also registed against him. As already stated above that in para 51 of his deposition, he has stated that none of the eye witnesses had blood on their clothes which reaises a serious doubt about the presence of the eye witnesses on the spot. From 14 Cr.A 326/1994 & Cr.R 535/1993 the bare perusal of the record shows that s
25. The prosecution has also examined one independent witness Prahlad Swaroop Arele (PW-12) who happens to be a Patwari and had prepared the spot map (Ex.P/19). Since he is a resident of the same area, it appears from the cross-examination of this witness that he knew about the deceased, his antecedents and his family as well. He has stated that the deceased- Ratan was a notorious dacoit and had also faced criminal cases for the same and in one such case this witness had also prepared a spot map where the deceased Ratan had fired a gun shot at a police officer (Thanedar). This witness has further stated that after the incident where Ratan had fired a shot at Thanedar, he stopped coming to Barkoti shop and for the same reason Ratan's mother, brother and father also stopped coming to aforesaid shop because the police was always on duty in the area and as Ratan was still absconding and at the Barkoti shop Ratan's maternal uncle used to sit. This witness has given the minute details of each and every person who is residing in the area which gives credibility to this witness testimony.
26. So far as the presence of PW-5 Jagdish S/o Dhaniram and PW-9 Jamna S/o Kadori is concerned, although both of them claimed to be the eye witnesses of the incident but their presence on the spot is shrouded with suspicion for the reason that as per their testimony, for no apparent reason they got down at Barkoti and it has also come on record that these persons were used to accompany deceased Ratan and were parties to the crimes he committed. Both of these witnesses have narrated the same story that Teekaram fired shots at Ratan, Marsara caused injuries with sword, Balmukund also assaulted with the aid of Ballam and subsequently Lakhan came and threw a hand grenade. As already stated above, from the deposition of doctor, this Court has found that the injuries on the head 15 Cr.A 326/1994 & Cr.R 535/1993 were not caused by gun shot whereas the other injuries cannot be said to have been caused with the aid of a gun or Ballam and it appears that the injuries were caused with the aid of a sword and hand grenade only which is said to have been thrown by Lakhan who had already died during the course of the trial. These witnesses have also stated that when the accused persons were assaulting Ratan at that time his mother and wife came on the spot and fell on deceased Ratan and begged the accused persons to spare him but the aforesaid narration is clearly belied by the statement of the Investigating Officer who has stated that no clothes of mother and wife of the deceased were seized as the same were drenched in blood.
27. So far as the statement of Gulabrani (PW-8) is concerned, her narration of incident is also similar to that of Jagdish and Jamna wherein she had alleged the same overacts to the accused persons but the fact is that the injuries attributable to the accused persons except accused Marsara do not correspond to the actual injuries received by the deceased
- Ratan. She has also stated in her deposition that when Teekaram fired a gun shot at that time Ratan fell down from the roof which is also not the story of the prosecution.
28. PW-9 Rajjo Bai has also given the same statement as that of her mother-in-law. Although she has categorically refused that she knows Jagdish or Jamna, however, in the deposition of Jagdish and Jamna it has come on record that both of them knew this lady. She has also stated that when she heard the big sound at that time she had come out of the house and had seen the crowd gathered in front of her house. In the circumstances, it cannot be said that she was actually on the spot when the incident took place, in fact at the time of her entry into the spot it cannot be said that she had witnessed the incident. A question was also 16 Cr.A 326/1994 & Cr.R 535/1993 put to her that her husband was caught in an acid attack case, to which she had denied but Bablu @ Virendra (PW-10) brother of the deceased had categorically stated in his statement that the accused persons had a prior animosity with the deceased Ratan on account of this acid attack which was carried out by the deceased Ratan against the accused persons side. Thus, from the eye witness account of these witnesses it can safely be presumed that they were not present on the spot and it appears that a false story has been cooked up to implicate the present respondents as these witnesses had an axe to grind against the accused persons or respondents. It is to be seen whether the recovery was made from the accused persons as it was alleged by the prosecution. So far as the seizure of the weapon is concerned, the same has been proved by Pw11 who is witness to Ex.P/4,5,6 and 7 and has been declared hostile, and similarly, Ex.P/8, Ex.P/9, Ex.P/10- & Ex.P/11 have also been proved towards recovery but the person who has been examined in this behalf viz. Pw/1 Vinod who is a highly interest witness and has supported the case of the prosecution but the discrepancies which have occurred among the prosecution witnesses as also the post mortem raises serious doubt about the veracity of the prosecution story.
29. It is also not on record as to what type of injury can be caused by the gun recovered from Teekaram because on one hand it is stated by the doctor as also by the FSL report submitted by the respondent that the gun was in working condition and bullet is fired from the aforesaid gun which is 12 bore rifle while the injuries as discussed above have been caused with the aid of hand grenade as also a sword as the presence of appellant Balmukund and Teekaram cannot be said to be positively established by the prosecution.
30. Thus, by testing the facts and circumstances of the case on the 17 Cr.A 326/1994 & Cr.R 535/1993 anvil of the enunciation of law in the case of V. Sejappa (supra) by the Hon'ble Apex Court, it cannot be said that the prosecution has been able to prove its case beyond all reasonable doubt and hence the reasoning assigned by the Judge of the Trial Court while passing the impugned order cannot be faulted with.
31. In the circumstances, the Criminal Appeal No.326/1994 and Criminal Revision No.535/1993 fail and are finally decided on the aforesaid premises as the order passed by the learned Trial Court acquitting the present respondents is just and proper and does not call for any interference.
(S.K. GANGELE) (SUBODH ABHYANKAR)
JUDGE JUDGE
Vikram & DV