SEWAKA ALIAS RAMSEWAK Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Sewaka alias Ramsewak, the appellant was tried on charges under Section 302, I.P.C. and Section 25 of the Arms Act. His real brother and co-accused Rakesh was tried on a charge under Section 302 read with Section 34, I.P.C. The trial Court acquitted both the accused persons. Feeling aggrieved by the acquittal the State of Madhya Pradesh preferred an appeal before the High Court. The Division Bench of the High Court, which heard the appeal, has allowed the same. The appellant and the co-accused, who were respondents before the High Court have been held guilty of the offences charged and sentenced to life imprisonment each. Rakesh has not preferred any appeal and in so far as he is concerned the matter has achieved a finality. The legality of the conviction and the sentence passed thereon, insofar as the appellant is concerned, are in issue in this appeal.

(2.) It is an undisputed fact that some time before the present occurrence the deceased Kitab Singh had appeared as a witness against the accused persons in a trial wherein the accused persons were charged for the offence of murder. The trial Court convicted the accused persons but they were acquitted by the High Court. Since then there was a feeling of enmity entertained by the accused persons against Kitab Singh though the version of the accused is that they have been falsely implicated on account of that enmity. On the night intervening 6th and 7th July, 1983, the deceased Kitab Singh was sleeping on a cot in the courtyard of his house. In the same courtyard his wife Gangashri (P.W. 1) was sleeping. A little later after the midnight Gangashri got up to ease herself and having returned she was lying on the cot when she heard voice of Rakesh saying that the enemy was there and he should be shot at. Sewak alias Ramsewak, the appellant, fired a shot with a katta (i.e. a countrymade pistol) and the shot hit on the head of the deceased. Gangashri got up and grappled with the accused persons. It was a moon-lit night and the accused persons being residents of the same village, well-known to the witness since before, were identified by her. While grappling, the cap of the appellant came in the hands of the witness but the two accused persons escaped and ran away. Her hue and cry attracted her father-in-law, Ram Sanehi who was sleeping at a little distance but in the same house as also Subedar Singh, cousin brother of Gangashri who had come to the village on a visit the previous day. Gangashri told Ram Sanehi and Subedar that they were the two accused persons of whom Rakesh had exhorted and Sewaka had shot from katta which had fatally hit her husband, Kitab Singh. FIR of the incident was lodged by Karan Singh, brother of the deceased at 9.45 a.m. on 7th July, 1983 at P. S. Surpura situated at a distance of 10 kms. from village Rama. The dead body of Kitab Singh was sent for post-mortem. The deceased was found to have sustained a gun shot wound of 11/2" x 1/5" dimension at the junction of parietal and occipital bones. The edges of the wound were inverted, margins were clean cut and brain matter along with blood was leaking out of the wound. There was no wound of exit present. On internal examination, a bullet 1" in length and 1/4" in diameter was found embedded in the fractured bones of the base of skull which was recovered, sealed and handed over to the police. In the opinion of the doctor the cause of death was coma resulting from injury to brain. The injury was ante-mortem and sufficient in the ordinary course of nature to cause death.

(3.) The prosecution case hinges upon the single testimony of Gangashri. We have, with the help of learned counsel for the appellant, gone through the statement of Gangashri (P.W. 1) as also other evidence available on record. We have carefully perused the judgment of the trial Court as also of the High Court especially the reasons assigned by the trial Court for disbelieving the statement of Gangashri and the reasons for reversal of acquittal recorded by the High Court. Without delving deeper into the reasons and cataloguing the same from the judgment of the trial Court it would suffice for us to observe that the reasons contained in the judgment of the trial Court for disbelieving the testimony of Gangashri are most flimsy and illegal, to say the least. The High Court was, therefore, fully justified in re-appreciating and re-assessing the worth of the evidence of Gangashri in an attempt to evaluate if her testimony was of sterling character on which the conviction could be safely based.