- (1.) This Order will dispose of all the above appeals as they arise from a common judgment. The facts of the case are as under: At 12.50 p.m. on the 30th September, 1996 as the deceased Ganeshram accompanied by his relative Annilal (PW.2) and his son Chandan Singh (PW.5) were about to cross the Narmada river on a boat, the five accused, RammilanLodhi and Babulal Lodhi, both armed with shot guns, and Dullam, Hukum and Prahlad armed with lathis came out of a bush. On seeing Ganeshram and the others Prahlad, Hukum and Dullam exhorted Rammilan and Babulal to fire at Ganeshram. On this exhortation Rammilan first fired a shot at Ganeshram which hit him on the abdominal area killing him instantaneously and a shot fired by Babulal caused a severe injury on the head of Annilal (PW.2), Chandan Singh (PW.5) who was behind them at some distance answering the call of nature witnessed the entire incident. He rushed to the spot and first removed the injured Annilal (PW.2)tothe village and thereafter conveyed the information about the incident to PW.6 Saheb Singh his brother. He also arranged for a tractor on which Annilal was carried to the hospital at Narsinghpur about 20 k.m. away and the first information report was lodged in the police station Narsinghpur at about 2.30 p.m. The Investigating Officer thereafter reached the place of incident and made the necessary inquiries and also sent the dead body for its post-mortem examination. The post-mortem examination revealed a large number of pellet injuries on the person of the deceased. Rammilan was also arrested and on his disclosure statement under Section 27 of the Evidence Act a muzzle loading shot gun was seized along with pellets, gun powder and brass metal caps.
(2.) During the course of the trial Annilal(PW.2) did not support the prosecution as he was equally related to thecomplainant as well as the accused party. The prosecution accordingly relied on the statement of PW.5-Chandan Singh and PW.6-Saheb Singh, as also the medical evidence. The Trial Court however found that the evidence of PW.2 partly supported the other evidence inasmuch that he had admitted his presence and that of Chandan Singh at the time of the incident. The Trial Court also noted that as the charge against the accused was under Sections 302, 307, 148 and 149 of the IPC, all the accused (notwithstanding the fact that they had not fired either atthe injured or the deceased) were liable to be roped in on a charge of murder. The Trial Court accordingly convicted all the accused under Sections 302 and 307 read with Section 149 and sentenced them to undergo several terms of imprisonment; all the sentences to run concurrently.
(3.) An appeal was thereafter taken by the accused to the High Court and during the pendency of the appeal Babulal, one of the main accused is said to have died. The High Court vide its judgment dated 11th September 2007 which has been impugned before us dismissed the appeal on facts and findings similar to ones recorded by the Trial Court. It is in this background that the matter is before us and after grant of leave and has been heard by us today. Mr. Shiv Sagar Tiwari, the learned counsel for the appellants-Prahlad, Dullam and Hukum in Crl.A. Nos. 146- 147/2008 at the very outset pointed out that Annilal (PW.2)having disowned the prosecution story, the entire story hinged on the statement of PW.5 and that as there was no evidence to suggest that the appellants had caused any injury to either of the victims although they were armed with lathis, clearly ruled out their participation. He has also urged that the fact that the parties appeared to be at logger heads on account of election rivalries was said to be the reason for murder but as per the statement of Saheb Singh (PW.6), the election dispute was between Gendalalthe father of the Rammilan and the deceased but he hadsubsequently withdrawn his nomination form, and as such the dispute no longer existed. He has also pointed out that it is by now well settled that in the case of a solitary witness the evidence of that witness had to be wholly credible before the conviction could be recorded thereunder.;