SHIVJI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) In this appeal under S. 2 (a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, the appellants were convicted under S. 302/149 and other sections of the Indian Penal Code and have been sentenced under various sections of the Penal Code as indicated in the judgment of the High Court. Essential details of the prosecution case have been fully reproduced in the judgment of the High Court and that of the Sessions Judge and it is not necessary for us to repeat the same all over again. It appears that two main incidents took place in the course of which some of the prosecution witnesses were assaulted and the deceased was killed. In one incident, there was a mutual altercation between the prosecution witnesses and some of the accused persons in the course of which there was an exchange of brickbats as a result of which some grievous injuries were caused to witnesses Hazari, Bhanna, Dhanna and Bhima. Thereafter the complainant party wanted to go to Police Station to lodge a report of this incident and whilst they were on the way, they were alleged to have been surrounded by the appellants. One of the appellants was armed with a gun and the object of the appellants appeared to have been to prevent the other party from going to the Police Station. Despite a request made by the deceased not to assault them Shivaji is said to have fired at the deceased as a result of which he fell down and died. A F. I. R. was lodged on the basis of which investigation was made. The case came up before the Sessions Judge who after considering the evidence, acquitted all the accused persons, and rejected the prosecution case. The State of Madhya Pradesh filed an appeal before the High Court against the order of the Sessions Judge acquitting the appellants and the High Court accepted the appeal, convicted the appellants as mentioned in its judgment. We have heard learned counsel for the parties at great length and have also gone through the judgment of the High Court and that of the Session Judge. We feel that this appeal must succeed on a short point. It appears from the evidence of the eye-witness that two of the accused persons i. e. Shiva Ji and Bhodha had received injures in the course of the occurrence. One of the injuries which Shiva Ji received was of a grievous nature which resulted in the fracture of the scapula of the left shoulder. In the F. I. R. no explanation regarding this injury seems to have been given by the prosecution though in the evidence it was suggested that in the course of the second incident, his shoulder was fractured, as he must have been assaulted by the prosecution witnesses in their defence. This fact is proved by the evidence of P. W. 1 and P. W. 6 both of whom have been believed by the High Court. So far as the main incident is concerned, there is no evidence at all to show that apart from the fun shot, any other injuries were inflicted on any of the witnesses.

(2.) Mr. Mulla appearing on behalf of the appellants contended that having regard to the evidence of the prosecution itself, it is impossible to believe that the appellant Shiva Ji could have fired the gun in the manner as asserted by the eye-witnesses. To begin with, P. W. 13 Dr. J. P. Dadhich clearly stated that on examination of Shiva Ji, he found that the left shoulder of the appellant was fractured and the injury was of grievous nature. The Doctor further asserted that having regard to the injuries sustained by Shiva Ji on the shoulder, he could not handle the gun from his left hand, because he had suffered fracture of the spine of left scapula. He has further explained this statement by deposing as follows:-