Mahaveer Singh v. State of Rajasthan (SC) BS191856
SUPREME COURT OF INDIA

Before:- M.K Mukherjee and D.P. Wadhwa, JJ.

Criminal Appeals Nos. 812-813 of 1997. D/d. 13.8.1998.

Mahaveer Singh and another - Appellants

Versus

State of Rajasthan - Respondent

Indian Penal Code, 1860 Sections 302/34 and 326/34 Appreciation of evidence - Rioting murder and causing grievous hut - High Court convicted the two appellants under Sections 302/34 and 326/34 - Rest were acquitted - Accused held entitled to the benefit of doubt - However, in view of consistent evidence of the eyewitnesses - Charge under Sections 326/34 stands conclusively proved against both of them.

[Para 1]

JUDGMENT

M.K Mukherjee, J. - Mahaveer Singh and Jagdish Singh, the two appellants before us, and three others were put up for trial before an Additional Sessions Judge, Sikar for rioting, committing murder and causing grievous hurt. The trial ended in conviction of all of them for the above offences. Aggrieved thereby they preferred separate appeals before the High Court which were disposed of by a common judgment. While acquitting three of them, the High Court convicted the two appellants under Sections 302/34 and 326/34 Indian Penal Code. The above judgment of the High Court is under challenge in this appeal.

2. Shorn of details, the prosecution case is that on 19-2-1993, about noontime, Shishpal Singh (PW 1) along with his brother Mangej Singh (the deceased) was proceeding towards their field in a camel cart. When they reached near the house of Jagdish Singh, the five accused persons and Bhagwan Singh (since absconding) stopped their cart and assaulted them with the knives they were carrying. Mangej Singh succumbed to his injuries while Shishpal Singh was admitted in the hospital for the injuries he sustained. While at the hospital his statement was recorded by the police and a case was registered thereon. On completion of the investigation the police submitted charge-sheet and in due course the case was committed to the Court of Session.

3. The appellants pleaded not guilty to the charges framed against them and their defence was that they were implicated falsely.

4. Having regard to the uncontroverted evidence of the two doctors, who held post-mortem examination upon the deceased and examined PW 1 respectively, there cannot be any manner of doubt that the deceased met with a homicidal death and PW 1 sustained a grievous injury which could be caused by a sharp-cutting weapon.

5. In view of the medical evidence and the acquittal of the other accused persons the only question that falls for our determination is whether the prosecution has been able to prove conclusively that the two appellants were guilty of the above offences. To prove this part of its case the prosecution relied principally upon the evidence of the five eyewitnesses examined by it. Culling their evidence we find that though they testified that the two appellants were amongst the miscreants, none except PW 1, (who lodged FIR naming him) named Jagdish as one of the assailants of the deceased in their statements recorded under Section 161 Cr. P.C., 1973 . In that view of the matter we do not feel it safe to accept the evidence of those four eyewitnesses, namely PWs 4, 6, 8 and 9 so far as they sought to implicate Jagdish for the murder. That brings us to the evidence of PW 1 as to the role played by Jagdish in the murder. He testified that Jagdish Singh and Bhagwan Singh inflicted knife blows upon his brother (the deceased). He did not however name the other appellant or any other person as the assailants. As to the number of injuries sustained thereby he stated in cross-examination that there were three injuries of knife blows and that out of them, two were on the head and the other near the right armpit. This evidence of PW 1 does not at all fit in with the medical evidence for the doctor testified that there was one incised wound in the 10th intercostal space (armpit) and the other two were lacerated wounds, which, according to him, could be caused by a blunt weapon only. While on this point it is pertinent to mention that the evidence of the other four eyewitnesses in this regard was that the injury sustained by the deceased on his armpit was caused by Bhagwan Singh (the absconding accused). The above evidence of the doctor and the four eyewitnesses therefore belie the testimony of PW 1 that Jagdish assaulted the deceased with a knife.

6. So far as appellant Mahaveer Singh is concerned, we find that none of the eyewitnesses ascribed any role to him in the murder of the deceased. It is, of course, true that according to the prosecution case he had a knife with him and it is with that knife that he assaulted PW 1. If really he had shared a common intention with others to commit the murder, it was expected, in the fitness of things, that he would also assault the deceased or play some role in its commission. In such circumstances, he is also entitled to the benefit of reasonable doubt as to his being a participant in the murder.

7. However, the charge under Sections 326/34 Indian Penal Code stands conclusively proved against both the appellants in view of the consistent evidence of the eyewitnesses that Jagdish Singh caught hold of PW 1 and Mahaveer Singh assaulted him with a knife causing an incised wound, penetrating deep in his right chest. The conviction of the two appellants, therefore, under Sections 326/34 Indian Penal Code must be upheld.

8. For the foregoing discussion we set aside the conviction of the two appellants under Sections 302/34 Indian Penal Code and acquit them of the said charge. Their conviction under Sections 326/34 Indian Penal Code is affirmed and for the above conviction we sentence each of them to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1000. In default of payment of fine they will suffer rigorous imprisonment for six months more. The appeal is thus partly allowed.

9. It is stated by the learned counsel for the appellants that the appellants have by now served out more than three years of the sentence. If that be so, the appellants be released on payment of the fine or undergo the sentence in default of payment thereof.

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