- (1.) State of Madhya Pradesh is in appeal before us against a judgment of the High Court of Madhya Pradesh at Jabalpur in Crl. A. No. 825 of 1988 whereby the High Court allowed the appeal of the respondent herein and set aside the conviction and sentence imposed on him by the Additional Sessions Judge, Bhopal under Sections 302, 380 and 457 of the IPC in ST No. 90 of 1986.
(2.) Brief facts necessary for the disposal of this appeal are as follows : According to the prosecution, Arun Kumar Mehta (PW-26) was a typist working with a Member of Legislative Assembly who was residing in Quarter No. 116/17, Shivaji Nagar, Bhopal and at that relevant point of time the said MLA was not in town and this PW-26 was occupying the garage attached to the house of the said MLA. On 13-2-1985 at about 10 p.m. PW-26 noticed some flashing of the light inside the unoccupied house of the MLA and apprehending that there was something wrong, he went to the house of Narayan Dubey (the deceased) who was living just behind the house of the MLA. At the request of PW-26, the said Narayan Dubey came out of the house with a sword in his hand along with him came a little later Dubey's son (PW-11) when they saw a person with medium height aged about 20-25 years with curly hair and having somewhat darkish complexion covering himself with a white shawl coming out of the house of the MLA. When PW-26 called out to him to stop, the said person started abusing him and threatened him to fire with a pistol carried by him and in fact fired at PW-26 with the pistol which missed PW-26. The prosecution then alleged that Narayan Dubey tried to stop the said person, consequent to which the said person fired three times which caused gun shot injury on Narayan Dubey. Thereafter, the said person allegedly ran away from the place of incident. The injured Narayan Dubey was rushed to the hospital where he succumbed to gun shot injury. As per the prosecution case, the investigation commenced on a complaint made by PW-26 which did not make much progress. It is the further case of the prosecution that on 22-9-1985 about 7 months after the incident in which Narayan Dubey died and during the investigation of another Crime No. 7/85 by the police of Police Station Sarni, the respondent herein was arrested and on an alleged disclosure statement made by him as per Ext. P-18 one .22 bore pistol was recovered from the house of one Chandan and same was seized as per Seizure Memo Ext. P. 18. During the course of the investigation of the case involving the death of Narayan Dubey certain empty cartridges had been seized from the spot of incident and the pistol then recovered at the instance of the respondent herein was sent for ballistic examination who opined that the empty cartridges found at the place of incident could have been fired by the pistol recovered at the instance of the respondent. The report of the ballistic expert was marked as Ext. P-19. On this basis the respondent was arrested. A week after the respondent was arrested a test identification parade was held at Betul Jail where PW-26 allegedly identified the respondent as the person who shot Narayan Dubey on the date of incident, hence, a charge sheet under Sections 302, 457, 380 IPC was laid against the respondent who, as stated above, was convicted by the Additional Sessions Judge but on appeal was acquitted by the High Court.
(3.) The High Court during the course of its judgment which is now impugned before us came to the conclusion that the evidence of PW-26 which was the basis for conviction of the respondent cannot be relied upon because the High Court was of the opinion that PW-26 could not have identified the respondent for want of sufficient light. It is, of course, an admitted fact that the respondent was a stranger to PW-26. The High Court also came to the conclusion that the identification by the appellant at the test identification parade cannot also be relied upon and there was every possibility of the respondent being shown to PW-26 prior to the test identification parade. The High Court also chose not to place any reliance on the ballistic report because even according to the prosecution the empties which were recovered from the place of incident six months earlier were not really sealed. Therefore, it came to the conclusion that these being thetrial Court and the same being not very trustworthy, the respondent herein was entitled to benefit of doubt, hence, acquitted him.;