B.S.Chauhan, J. - (1.) THIS criminal appeal has been preferred against the judgment and order dated 15.12.2006 passed by the High Court of Judicature at Jabalpur in Criminal Appeals No.518 and 890 of 1997.
(2.) FACTS as explained by the prosecution have been that : A. On 5.3.1996, on the day of 'Holi at around 11:30 a.m., one Kailash @ Killu was assaulted by the appellants along with another accused in front of the house of one Rama Tailor. Anil (PW11), nephew of the deceased, who had been following Kailash (deceased), raised an alarm and the assailants were caught at the spot. Various persons gathered at the place of occurrence but the assailants managed to flee. The injured Kailash was taken to the hospital but succumbed to his injuries. In view of the above, an FIR was lodged under section 302 of Indian Penal Code, 1860 (hereinafter called as 'IPC') and section 25 of the Arms Act,1959, within one hour of the incident at 12:30 p.m., wherein both the appellants and other accused were named. In the FIR it was also stated that two policemen, namely, Ramdas Havaldar and Pannalal Sainik came at the scene and got the accused persons released from the mob and, thus, they succeeded in running away. B. Dr. R.K. Singhvi (PW8), conducted the post-mortem on the body of the deceased on the same day. In his opinion, there were three incised wounds found on his body, one on the neck, one of the chest and another in the abdomen. All the injuries had been caused by sharp edged weapons and Kailash had died within three to six hours prior to conducting the post-mortem examination. C. During the course of investigation, the appellants were arrested and the weapons used in the offence were recovered on their disclosure statements. After concluding the investigation, charge-sheet was filed. D. The case was committed for sessions trial. The prosecution examined a large number of witnesses in support of its case. One Halle (DW1) was examined in defence and after conclusion on the trial, all the three accused were convicted for the offence punishable under section 302 IPC vide judgment and order dated 21.2.1997 and were awarded sentence of rigorous imprisonment for life and a fine of Rs.2,000/- each, in default thereof, to serve further sentence of one year. E. Being aggrieved, all the three accused/convicts preferred two appeals i.e. Criminal Appeal No.518 and 890 of 1997 before the High Court of Judicature at Jabalpur, which were decided by judgment and order dated 10.2.2005 in absence of their counsel. F. Being aggrieved, the present two appellants preferred criminal appeals before this Court i.e. Criminal Appeals No. 1463-64 of 2005 were allowed vide judgment and order dated 20.7.2006 and this Court after setting aside the judgment and order dated 10.2.2005 of the High Court of Judicature at Jabalpur, remanded the appeals to be heard by the High Court afresh. G. In pursuance of the said judgment and order of this Court dated 20.7.2006, the appeals have been heard afresh and dismissed vide judgment and order dated 15.12.2006 by the High Court. Hence, this appeal. Before proceeding with the case on merit, it may be pertinent to mention here that so far as the case of the appellant Rakesh is concerned, he had already served the sentence of more than 14 years and has been granted premature release by the State. Appellant Rajesh has served about 7-1/2 years and is still in jail. The third person Dinesh did not prefer any appeal so we are not concerned with him so far as this appeal is concerned. Shri Siddharth Aggarwal, learned counsel appearing for the appellants, has submitted that the trial Court had placed very heavy reliance upon the alleged eye-witnesses Khemchand (PW10) and Anil (PW11) who, in fact, could not be the eye-witnesses at all. The deposition of other witnesses examined by the prosecution, falsify the prosecution case in entirety. There have been material inconsistencies in the depositions of Khemchand (PW10) and Anil (PW11), and their entire evidence has to be discredited. The High Court after considering the circumstances, did not find the evidence of Khemchand (PW10) trustworthy, however, failed to appreciate that the evidence of Anil (PW11) was also liable to be treated similarly. The ocular evidence is contradictory to the medical evidence as the incident had occurred at 11:30 a.m., FIR had been lodged at 12:30 p.m. The post-mortem examination was conducted at 1:00 p.m. on the same day i.e. 5.3.1996. The Doctor opined that Kailash @ Killu had died within 3 to 6 hours before the post-mortem examination. Anil (PW11) relied upon by the High Court, is closely related to the deceased Kailash @ Killu and none of the independent witnesses examined by the prosecution supported its case to the extent that Anil (PW11) could be present on the place of occurrence at the relevant time. Thus, the appeal deserves to be allowed.
(3.) PER contra, Ms. Vibha Dutta Makjija, learned counsel appearing for the State, has vehemently opposed the appeal contending that there is no rule of law prohibiting reliance upon the evidence of the close relatives of the victims, however, such evidence has to be carefully scrutinised. The medical evidence may not be conclusive regarding the time of death as the physical condition of a body after death depends upon various factors i.e. age, geographical and climatic conditions of the place of occurrence etc. The facts and circumstances of the case do not warrant interference with the concurrent findings of the facts recorded by the Courts below. The appeal lacks merit and is liable to be dismissed. We have considered the rival submissions made by the learned counsel for the parties and perused the record.;