- (1.) This appeal against the judgment and conviction made by the High Court of Madhya Pradesh, Gwalior Bench in criminal appeal (Case No. 270 of 1986) is filed by the 4th accused before the trial Court who was 4th appellant before the High Court who has been convicted by the High Court by reversing the judgment of the trial Court for offences punishable under Sections 302, 307 and 324, IPC and was sentenced to undergo imprisonment for life under the principal Section 302, IPC and other varying sentences for other lesser offences. Brief facts necessary for the disposal of this appeal are : Original accused A-1 Premnarayan and his supporters which included the appellant herein were angered by the fact that Harsewak P.W. 12 was allowing their enemies Bharta Gawli and Moharman to sit at his doorsteps, therefore, said Premnarayan complained to Dilip Singh P. W. 3 to prevent P.W. 2 from allowing those two persons from sitting at his doorsteps. It is stated that on 7-6-1983 at about 8 p. m. in the village Gata of which the complainant accused and other witnesses were residents, the appellant herein brought out his 12 bore gun to settle his disputes with P. W. 12 and without heeding to the request of P. W. 3 to allow him to settle the dispute, the appellant started firing indiscriminately, consequent to which one Raghuvar son of Naktu died and Ms. Mithilesh P.W. 5 and Parasram P. W. 6 were injured. According to prosecution, P.Ws. 3, 4, 5, 6, 12 and 18 witnessed the incident in question. It is the further case of the prosecution that Puttu Singh Yadav P.W. 19 who was then SHO of Mehgaon Police Station, on coming to know of the said incident, came with his Police force to Gata village. He found on the way P. Ws. 5 and 6 injured witnesses being taken to the hospital in a bullock-cart hence he directed Kundan Singh P.W. 8, Police Constable to accompany them to the Police Station and came to the place of incident and on an information given by P. W. 3 recorded Ex. D/4 Dehati Nalishi and sent the same with P.W. 14 another Constable to the Police Station where a crime was registered on the basis of said complaint. On completion of investigation a charge-sheet under Sections 302, 109, 307/109, 324, 324 and with 109, IPC was submitted against four accused persons including the appellant herein which came to be tried by the 1st Additional Sessions Judge, Bhind, M.P. Before the trial Court the prosecution relied upon the evidence of P.Ws. 3 to 6, 11, 12 and 18 who according to the prosecution, were the eye-witnesses to the incident in question apart from other official witnesses. During the trial, P.Ws. 5 and 11 did not support the prosecution case. While P.Ws. 3, 4, 6, 12 and 18 supported the prosecution case. The defence had taken a specific plea before the trial Court that there were two factions in the village who were opposed to each other and consequent upon a certain misunderstanding, there was a fight between the two factions which included the complainant and others on one side and the accused and others on the other. In the said fight, the complainant party resorted to shooting by fire-arms indiscriminately consequent to which many people got injured and the victim Raghuvar died, P.Ws. 5 and 11 got injured apart from the injuries suffered by the accused themselves. They also contended that they had filed a cross-complaint against the members of the complainant party. The trial Court disbelieving the prosecution case acquitted all the accused primarily on the ground that the evidence of eye-witnesses being full of contradictions cannot be relied upon even though they were injured witnesses and so far as P.Ws. 6, 12 and 18 are concerned, they were absconding for nearly 2 months and their statements were recorded only after they became available to the investigating agency, hence it was not safe to rely on their evidence and the incident as projected by the prosecution could not have taken place. Therefore, giving benefit of doubt, it acquitted the accused persons.
(2.) State of M.P. preferred an appeal before the High Court which as stated above, came to be allowed as against the appellant herein while the High Court agreed with the trial Court that the prosecution did not establish the case as against the other 3 accused persons out of whom Premnarayan A-1 had died during the proceedings. The High Court having come to the conclusion that the approach of the trial Court in appreciating the prosecution case was not proper, it re-appreciated the evidence and for reasons recorded therein, came to the conclusion that the finding of the trial Court was perverse and arbitrary so far as it pertained to the appellant, hence, allowing the appeal in part, convicted the appellant, as stated above.
(3.) Dr. T. N. Singh, learned senior counsel appearing for the appellant, relying on a number of judgments of this Court, contended that the High Court was not justified in interfering with the well-considered judgment of the trial Court merely because another view was possible on the very same set of facts. He further contended even the view taken by the High Court on the material on record was not possible to be arrived at because of various omissions, contradictions and improvements in the evidence of the prosecution. However, he conceded that for sufficient and compelling reasons and for good, sufficient and cogent grounds, the High Court can interfere with the findings of fact of the Courts below but such reasons according to the learned counsel did not exist in the present case. He also contended that from the sketch plan produced by the prosecution itself, it is clear that the case put forth by the prosecution cannot be accepted i.e. the appellant could not have caused such injuries to the deceased and, the injured eye-witnesses standing on the Baithka of Premnarayan's house because of the distance involved. He also contended from the evidence of the doctor who treated the injured witnesses P.W. 4 and others, it is clear that they had suffered gun-shot injuries which had showed signs of blackening at the place of pellet injuries which can be caused only by using the gun very close to the body of the person injured. In the instant case, since the prosecution itself has alleged that the indiscriminate shooting by the appellant was done by the appellant standing on the Baithka of Premnarayan's house, such injuries with blackening could not have been caused by the appellant i.e. assuming he did use the fire-arm in the incident in question. Learned counsel also pointed out that the prosecution has pleaded the recovery of a 12 bore gun which was examined by the ballistic expert but the same was not recovered in a manner known to law inasmuch as the prosecution has neither produced any witness to prove the said recovery nor such recovery was made by drawing any Panchanama therefore, the recovery of this gun has remained a mystery which should also go against the genuineness of the prosecution case. He relied upon a number of judgments of this Court in regard to the principles applicable to the appreciation of evidence of eye-witnesses where such evidence consists of contradictions, omissions and improvements. It was also the argument of learned counsel that in such cases the benefit of doubt ought to have gone to the accused, therefore, the judgment of the High Court is unsustainable.;