Decided on November 20,2006

Kalyan Singh: Appellant
State Of Madhya Pradesh: Respondents


- (1.)1. This appeal by the appellant herein arises out of a judgment dated 8.11.2005 passed by a Division Bench of the High Court of Madhya Pradesh whereby and whereunder the criminal appeal preferred by the State questioning an order of acquittal passed by the Trial Judge against three accused persons, namely, Gulab Singh, Ashok Kumar and Kalyan Singh, was allowed in part and the appellant herein was convicted for the alleged commission of offence under Sec. 302/34 of the Indian Penal Code. The High Court by reason of the said judgment, however, dismissed the appeal preferred by Budh Singh who had been convicted by the learned Trial judge under Sec. 302 of the Indian Penal Code.
(2.)The incident occurred a t about 4.30 p.m. on 31.7.1989. The first informant Gyan Singh, who is the brother of the deceased, had gone to take bath at the well of one Dangal Singh Yadav. Allegedly Gyan Singh, who was also coming to the well for taking bath, found that his brother had been taking bath using soap on his body when Budh Singh armed with bore double barrel rifle, Kalyan Singh armed with 12 bore double barrel rifle, Ashok Yadav armed with Topidar rifle of Kalyan and Gulab and Dashrath armed with rifles reached the spot and surrounded the well. The appellant herein is said to have given an exhortation pursuant whereto Budh fired at Durga Singh Rawat (the deceased) from behind resulting in his death. The learned Trial Judge disbelieved that part of the prosecution story whereby Kalyan Singh, Ashok Kumar and Gulab Singh were roped in, inter alia on the ground that Gyan Singh (PW-1) stated in his deposition that Kalyan Singh said: "hit sale main" "he should not escape", but the statement of Munna Lal (PW-2) is that Kalyan Singh said to Budh Singh: "Hit sale main", and thus there was contradiction between the statements of PW-1 and PW-2.
(3.)The learned Trial Judge opined that having regard to the enmity between the prosecution witnesses and the accused persons, benefit of doubt should be given to Kalyan Singh that he had given the exhortation. The learned Trial Judge thereafter discussed the evidence and the deposition of the prosecution witnesses and came to the conclusion that the same was not reliable vis-a-vis the implication of the said Kalyan Singh.

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