STATE OF MADHYA PRADESH Vs. MOHAN LAL

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order dated 9/12/1983 passed by the High court of Madhyapradesh at Gwalior in Criminal No. 450 of 1980 arising out of Sessionss Trial No. 96 of 1980.

(2.) The respondents were charged under S. 302/149 as well as under Section 449 Indian Penal Code. The respondents Mohan Lal and Chhagan Lal were further charged under Section 148 Indian Penal Code and rest of the respondents stood charged under Section 147 Indian Penal Code. They were convicted under different counts by the learned Additional Sessions Judge, Mandsaur for having killed the deceased Mangi Lal after dragging him out of his hut and thereafter assaulting him mercilessly and throwing acid on him. On appeal the High court acquitted all the respondents and hence the present appeal.

(3.) The prosecution case briefly stated is that, on 18/9/1980 during night all the accused-respondents being armed with gun, sticks and acid entered into the hut inside the field of Mangi Lal where Mangi Lal was sleeping. Respondents then dragged him out of the hut and some of them assaulted him with sticks and respondent Chhagan Lal who was carrying a gun assaulted him with the butt of the gun. Respondent Mohan Lal threw acid on him. Deceased Mangi Lal shouted for help. Having heard the noise, Abdul Rehman, Public Witness 1 who was staying at a distance of 100 yards, woke up and ran towards the place from where Mohan Lal's voice was coming. Reaching at the place of occurrence, when Public Witness 1 asked Mangi Lal about the incident, he told the names of the accused and told him that they have killed him by throwing acid. Said Public Witness 1 then informed Mangi Lal's family members and soon Mangi Lal's son Ram Gopal Public Witness 4 arrived at the place of occurrence. Mangi Lal was then brought to the village in the injured condition and was carried on a tractor to Manasa police station. Mangi Lal himself lodged the report, which was treated as FIR, Exhibit P-32. It was recorded by the Head Constable, Public Witness 14. After registering the case the police sent Mangi Lal to the hospital at Manasa where he was treated be doctor Public Witness 9. As the doctor was of the opinion that the condition of Mangi Lal was serious, the Sub-Inspector of Police, Public Witness 15 requisitioned the services of the Judicial Magistrate, 1st Class, Manasa, Public Witness 10 and requested him to record the dying declaration of said Mangi Lal. The said Magistrate immediately came the the hospital and on being satisfied by questioning the doctor that Mangi Lal was in a fit condition to make his statement, enquired from Mangi Lal about the incident and recorded his statement which was exhibited in the case as Exhibit P-15. The said statement was read out to Mangi Lal and thereafter Mangi Lal gave his thumb impression. Doctor Public Witness 9 then advised that Mangi Lal should be shifted to Mandsaur hospital. In accordance with the said advice, while Mangi Lal was carried to Mandsaur hospital he died on the way. Post-mortem examination on his dead body was, however, conducted by the doctor Public Witness 2 and post-mortem report was exhibited as Exhibit P-3. The Investigating Officer in the meantime proceeded to the place of occurrence, made some seizure at the spot and finally on completion of investigation, submitted the charge-sheet. on being committed, the accused persons were tried by the learned Additional Sessions Judge. The prosecution examined as many as 15 witnesses of whom the most important witnesses are Public Witness I, Abdul Rehman, who was the first person to arrive at the place of occurrence on hearing the shout of Mangi Lal and before whom Mangi Lal narrated the names of all the accused persons; Public Witness 14, the Head Constable at the police station who recorded the FIR, report having beengiven by Mangi Lal himself; Public Witness 15, the Investigating Officer who had visited the place of occurrence and made several seizures; the doctor Public Witness 9 who had first examined the injured Mangi Lal at the hospital at Manasa; the Magistrate Public Witness 10 who recorded the dying declaration of the deceased at 5. 00 a. m. on 19-9- 1990 and the doctor Public Witness 2 who conducted the post-mortem examination on the dead body of the deceased. The prosecution also examined PWs 12, 13 and 14 to establish the animosity between deceased and Mohan Lal over the field for which police had taken action against them under S. 107 and 116 (3 of the Code of Criminal Procedure. The plea of the accused persons was one of denial. The learned Additional Sessions Judge on thorough scrutiny of the evidence on record and relying upon the dying declaration recorded by the Magistrate, which was exhibited as Exhibit P-15 and finding out corroboration thereto from the oral declaration made by the deceased to Public Witness 1 as deposed to by Public Witness I, as well as the medical evidence, came to the conclusion that the prosecution has been able to establish the charge against the accused persons beyond reasonable doubt and accordingly convicted them and sentenced them differently. All the accused persons were convicted under S. 302/149 Indian Penal Code and were sentenced to imprisonment for life. Accused Mohan Lal and Chhagan Lal were further convicted under Section 148 and were sentenced to undergo rigorous imprisonment for two years. The rest of the accused persons were convicted under Section 147 and were sentenced to undergo rigorous imprisonment for one year. All the accused persons were further convicted under Section 449 and were sentenced to undergo rigorous imprisonment for seven years and it was directed that the sentences shall run concurrently. Being aggrieved by their conviction and sentence the accused persons moved the High court in appeal. The High court though accepted the prosecution case that the Judicial Magistrate, Public Witness 10 recorded the dying declaration of deceased Mangi Lal, when said Mangi Lal was in a fit state of mind but since it had not been stated in the said dying declaration that the accused persons dragged Mangi Lal out of his house and assaulted him, came to the conclusion that the occurrence having been taken place at midnight inside the hut of the deceased, it was not possible for the deceased to identify the assailants and, therefore, the dying declaration does not inspire confidence. The High court also lightly brushed aside the statement of Public Witness I, Abdul Rehman to whom the deceased had not only stated the names of all the accused persons but had also stated that he was dragged out of the hut and was beaten and acid was thrown on him. With these conclusions the High court set aside the conviction and sentences passed by the learned Additional Sessions Judge and acquitted all the accused persons.