Shivaraj V. Patil, J. - (1.)The appellants and six other co-accused were tried by Sessions Court for offences under Ss. 148, 302, in the alternative under Ss. 302, 148, 307 or 307/148, 323 or 323/149, I.P.C. and the appellant No. 1 was also charged under Ss. 25 and 27 of the Arms Act. After trial, death sentence was awarded to the appellant No. 1 finding him guilty of various offences and the remaining seven accused were sentenced to imprisonment for life besides imposing fine and imprisonment for other offences. On appeal, by the impugned judgment and order, the High Court acquitted the other six co-accused; the appellants were held guilty only under S. 302, I.P.C. and were sentenced to imprisonment for life and death sentence passed against the appellant No. 1 was set aside. Aggrieved by their conviction and sentence passed by the High Court, the appellants are before this Court in these appeals.
(2.)In short and substance, the prosecution case was that on 31-5-1996 at about 7.30 a.m., deceased-Dwarka accompanied by Prakash, Jeevan and Shambu was on his way to Ramganj Mandi. When they were in the playground of Higher Secondary School of village Sandhara, the accused persons surrounded the deceased-Dwarka and started assaulting him by means of lathi, ballam, axe etc. Shambhu (P.W. 12) came home and informed the family members about the occurrence; thereupon deceased-Bheru accompanied by Kaniram, Nandlal, Jalam and Jaikishan reached the spot and when they tried to save Dwarka, they were also assaulted by the accused. Appellant No. 1 Kanwarlal allegedly fired gun shot at Behru causing his instantaneous death. Kaniram lodged First Information Report on the same day at 9.30 a.m. at P.S. Bhanpur, Dwarka and other injured persons were sent to Civil Hospital, Bhanpura for treatment. Dwarka was sent to Civil Hospital, Mandsaur as his condition was serious but he died on the way. The police after investigation filed the charge-sheet. As already noticed above, the trial Court after considering and appreciating the evidence on record held that the prosecution proved its case against all the eight accused persons and consequently they were convicted and sentenced. However, the High Court in appeal, acquitted six other co-accused and convicted and sentenced the appellants as already noticed above.
(3.)The learned counsel for the appellants urged that the impugned judgment and order cannot be sustained for the reasons more than one. There were inherent contradictions in medical evidence as recorded by Dr. Pramila Nahar (P.W. 18) and Dr. A. K. Gulati (P.W. 21); five prosecution witnesses have given different versions and mentioned different arms being used by the appellant No. 2; hence their evidence ought not to have been believed; the High Court having held that Kaniram (P.W. 1) and Jalam (P.W. 7) had no occasion to see as to who in fact caused injury to Dwarka and that there was no corroboration to their testimony, committed an error in holding appellant No. 2 guilty of offence under S. 302; despite recording a finding that the accused suffered injuries and it was some kind of free fight between two parties and no role was assigned to a particular accused and having held that S. 149, I.P.C. was not attracted, the High Court erred in holding appellant No. 2 solely guilty for causing the death of Dwarka; since Dwarka died as a result of head injury, the High Court was not justified in convicting the appellant No. 2 on the basis of evidence of P.W. 10 and P.W. 12 inasmuch as P.W. 10 has stated in his deposition that the appellants were carrying rifles while P.W. 12 has stated that Kanwarlal had pierced the shoulder of Dwarka with spear and Laxminarayan had fired at Kaniram. The learned counsel also contended that the High Court committed a manifest error in convicting the appellant No. 2 on the basis of the evidence of witnessses having disbelieved their evidence with regard to the incident in which Dwarka was killed.