Pattanaik, J. - (1.) These two appeals, one by the convict, Ramesh and the other by the State are directed against one and the same judgment of the High Court of Madhya Pradesh and were, therefore, heard together and are disposed of by this common judgment.
(2.) Appellant, Ramesh along with two others Dalla alias Dayaram and Ramesh, son of Jagannath, commonly known as Ramesh (Junior), was convicted by the learned Sessions Judge for having committed offence under Sections 302 and 302/34, IPC and sentenced to imprisonment for life. On appeal, the High Court confirmed the conviction and sentence imposed by the learned Sessions Judge on accused Dayaram as well Ramesh, son of Laxman, the present appellant but set aside the conviction of Ramesh (Junior) under Section 302/34, IPC and acquitted him of all the charges. The appeal preferred by the State is against the acquittal of Ramesh (Junior) of the charge under Section 302/34, IPC. It may be stated, at this stage that the learned Sessions Judge has acquitted three other accused persons who stood trial along with the appellant and against their order of acquittal, the State moved the High Court in appeal and the State's appeal being dismissed, the State has preferred Special Leave Petition (SLP (Crl.) No. 295/96) which stood dismissed by this Court on 8-9-99.
(3.) The prosecution case in nutshell is that the accused and the deceased belonged to 'Gawli' community and had been divided in two factions, one led by the deceased, Kanhaiyalal whereas the other faction was led by Mangilal, Jagannath and Pancham. Pancham is the father of accused, Dalla. Kanhaiyalal the deceased was out-casted and on that score, there had been some dissension. On the date of occurrence, i.e. 1-10-85, the said Kanhaiyalal was proceeding to Kali temple for offering 'Puja', accompanied by Nandlal, PW 1. While they were proceeding, the accused persons came together armed with weapons in their hands and started mercilessly assaulting Kanhaiyalal. Accused, Dalla had an axe in his hand and gave blows on the head of the deceased by means of the axe. The present appellant, Ramesh (Senior) gave also an axe blow and Kanhaiyalal tried to prevent him but his left hand was cut and Kanhaiyalal fell down. The other accused, Ramesh (Junior) pierced 'Gupti' on his chest. The further prosecution case is that the three other accused persons, who have since been acquitted, also caused injuries on the deceased with the weapons in their hands. 'Halla' was raised and a telephonic message was given to the police station, which was duly recorded in the 'roznama' and PW-11 came to the spot. Kanhaiyalal was taken to the hospital and he was declared dead. P.W. 1, Nandlal gave a written report which was treated as First Information Report and the police then registered a case and started investigation. On completion of the investigation, a charge-sheet was filed and the accused persons stood their trial as already stated. The prosecution examined a number of witnesses of whom PWs. 1, 2 and 3 are the eye-witnesses to the occurrence. PW-3 did not support the prosecution case and was allowed to be cross-examined. P. W. 8 is a post occurrence witness and PW-12 is the Doctor who had conducted the autopsy on the dead body of the deceased, Kanhaiyalal. The post-mortem report indicates that there were five injuries on the dead body of the deceased, four were incised and one abrasion. On the basis of medical evidence, the Sessions Judge came to hold that Kanhaiyalal met a homicidal death and the same finding is not assailed before us. Relying upon the evidence of P.Ws. 1, 2 and 4 and finding corroboration of the same with the evidence of Doctor, P.W. 12, the learned Sessions Judge convicted three of the accused persons while acquitted three others as already stated. Appeal being preferred, the High Court considered the inter se inconsistency between the eye-witnesses with regard to the finding as to which accused person caused the injury on the chest by means of 'Gupti', inasmuch as while P.Ws. 1 and 4 had stated that 'Gupti' was pierced by Ramesh (Junior), P.W. 2 stated that the 'Gupti' was pierced by Devilal and accordingly held that the said accused, Ramesh (Junior), son of Jagannath is entitled to benefit of doubt. But so far as appellant, Ramesh and accused Dalla are concerned, the High Court on reappreciation of the evidence of the three eye-witnesses came to hold that the prosecution case has been proved beyond reasonable doubt and, therefore, the conviction and sentence passed by the Sessions Judge was affirmed. It may be stated that no appeal has been preferred by Dalla.;