SURESH SINGH Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellants Suresh Singh and Mohinder Singh have been convicted under Section 302 IPC and have been sentenced to undergo life imprisonment whereas the appellant Chander Pal has been convicted under Section 304 Part I IPC and has been sentenced to undergo rigorous imprisonment for 10 years by the High Court of Punjab & Haryana. THEse three appellants and seven others were tried by the learned Additional Sessions Judge, Rewari for offences under Sections 148/149/324/325/302/307 IPC, for having formed an unlawful assembly and committing murder of Mahipal as well as having injured Chand Ram, Chander Deep and Rajbir, when they came to rescue Mahipal. Learned Sessions Judge acquitted four of the accused persons of all the charges after screening the prosecution evidence on a finding that those accused persons were not present at the spot but they were named later on to implicate as many persons as possible from the side of the accused. THE Sessions Judge also acquitted rest of the six accused persons of the charge under Section 307 read with Section 149 IPC, but convicted them under Sections 148/302/323/324/325 read with Section 149 IPC. THE convicted accused persons preferred an appeal to the High court and the High Court by the impugned judgment acquitted three more accused persons of all the charges levelled against them and acquitted the present three appellants of rest of the charges and convicted only under Section 302 and 304 Part I IPC, as already stated and hence the present appeal.

(2.) THE prosecution case as unfolded in the first information report given by PW5 is that while deceased Mahipal was sitting on a cot in front of his house on 13.9.89 at 5.30 P.M., all the accused persons armed with different deadly weapons arrived there and accused Rameshwar having given a lalkara that Mahipal should not be allowed to go, they gave different blows on different parts of the body of Mahipal. Hearing the cries of Mahipal, when his brothers Chand Ram, Chander Deep and Rajbir rushed to the spot, they were also attacked and thereafter the accused persons left the scene of occurrence when the villagers had been collected at the spot. According to prosecution version the motive behind the occurrence was that Rameshwar was the Sarpanch of the village and on account of instigation from Mahipal when several members of the Punchayat did not attend the meeting, no meeting could be held on account of lack of quorum and it is on this score that Rameshwar and his people had a grudge against Mahipal and they avenged of the same by assaulting him on the fateful day. On the basis of the aforesaid report of PW5, the investigation proceeded and ultimately charge-sheet was submitted and the accused persons stood their trial. THE deceased Mahipal had sustained as many as 8 injuries on his person and the doctor PW17 who conducted autopsy over the dead body opined that the death was due to shock and haemorrhage due to the injuries which were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. This conclusion of the learned Sessions Judge based on the evidence of PW17 has not been assailed in any form. THE defence put forth by the accused persons was a denial of prosecution allegation. THE accused persons had taken the plea that it is Mahipal, Chand Ram, Chander Deep and Rajbir who were armed with lathi and sharp edged weapons and caused injuries to accused Chander Pal, Mohinder Singh and Parbati, who in self defence of their person have caused the injuries on Mahipal, Chander Deep, Chand Ram and Rajbir. THE learned Sessions Judge came to the conclusion that accused Balbir, Ram Kishan and Ram Sarup were not present at the spot and they were named later on to falsely implicate them from the side of the accused. He also came to the conclusion that accused Ram Sarup an aged man of 90 years, hardly steady on his legs cannot be believed to have given jelly blow on Mahipal and, therefore, serious doubts exist on his presence at the time of occurrence and as such acquitted them of all the offences charged with. But notwithstanding the fact that the eye witnesses PWs 5, 6 and 7 had made improvement to their statements made before the Police under Section 161 Cr.P.C., the learned Judge was of the opinion that such improvements do not go to the root of the prosecution story and as such are of very minor nature and consequently, the witnesses can be relied upon so far as they deposed about the role played by the rest six accused persons. With these conclusions and having considered the evidence of the three eye witnesses and the role ascribed by them to the six accused persons, the six accused persons were convicted by him for the offences as already indicated.

(3.) MR. Prem Malhotra, learned counsel appearing for the respondent on the other hand contended that it is no doubt true that six of the accused persons have been acquitted by now but their acquittal is on account of benefit of doubt having been given and the testimony of the eye witnesses cannot be totally ignored on that score, particularly when the witnesses themselves are injured. According to MR. Malhotra, the injuries on the accused persons are such that even if the prosecution has offered no explanation for the same, the prosecution case will not fall on that score. MR. Malhortra further submitted that in view of the positive role ascribed to these appellants, the High Court was fully justified in convicting them of the charges under Section 302 so far as the first two appellants are concerned and Section 304 Part I, so far as the third appellant is concerned and there is no infirmity in the same.