KHALAKSINGH Vs. STATE

JUDGEMENT

(1.) KHALAKSINGH son of Budheram was tried by the Additional Sessions Judge, gwalior, under Section 302 of the Indian Penal Code, and Khalaksingh's son, mangaram was tried for the offence under Section 302 read with Section 109 (abetment of murder ). The Additional Sessions Judge convicted Khalaksingh under section 304 (1) and sentenced him to seven years' rigorous imprisonment. Accused Mtingaram was acquitted. Against this decision Khalaksingh has preferred appeal No. 13 of 1956 and the Govt. of Madhya Bharat has preferred appeal No. 40 of 1955, against the acquittal of Khalaksingh Under Section 302, and also against the acquittal of Mangaram of the offence of abetment. As both the appeals arise out of the same case, they are being disposed of by a single judgment.

(2.) THE prosecution story briefly is that two Children of Khalaksingh named Sita and kapoora were playing in the Chopal of village Bhatpura on 3rd October 1954 at about 4 p. m. Gaurishankar, brother of Mama (deceased) stopped them from jumping about and playing there. It is said that Gaurishankar pulled them by the are also. They cried and went home and reported the incident to their elder brothers, Bhika and Mangaram. Both the elder brothers went to the Chopal and finding Gauri Shankar there, remonstrated with him and also threatened him. Gauri Shankar said to them "you are two and I am alone. " the two elder brothers suggested that Gauri Shankar's elder brother, Mansa Ram, who was, thereabout, could join him. Thus an invitation for a free fight was extended. On this, Gauri Shankar and Mansa with lathis on one side, and Bhika and Manga Bam with lathies on the other side were arrayed and the parties indulged in what is described as Ojha Ojhi and Hooda Hoodi. This means that they flourished their lathis, hit the Jathios on the grounds without causing any injury to any one. When this display of force was going on, the accused Khalaksingh appeared on the scene. From this stage the prosecution story branches off into two versions. Acrording to one version, Khalaksingh appeared with a gun and according to the other version Khalaksingh came there armed with a stick, but that later on his yonger son, Sita fetched a gun and gave it to his father. Khalak Singh is first of all said to have asked the combatants not to fight, but later on Khalaksingh threw himself heart and soul in the fight, which hitherto was no more than mere brandishing of sticks. With the gun, which he either brought or which was later on handed over to him, he fired at Mansa Ham hiting him on the check. Mansa Ram fell down and died. Pannalai, the uncle of Mansa Ram made the report at 9 p. m. the same day at Police Station Gird, mentioning the name of Khalaksingh as the person who fired.

(3.) IN dealing first, with the appeal of the accused (Appeal No. 18 of 1956), I find that the defence of the accused is that he never took part in any fight, that he was not in the village at the time of occurrence, and, that because there is a long standing enmity between the family of the accused and the family of the complainant, he has been falsely implicated. There is no doubt that no love is loot between the parties, but that fact alone is not enough to reject the testimony of the prosecution, unless other circumstances exist, which render the prosecution evidence unworthy of credit. It must be remembered that enmity is a double edged weapon; it may be that because of enmity the crime has been perpetrated and it may also be that the accused has been falsely implicated, In a case where parties are admittedly on inimical terms as in this case prudence enjoins that the Court should scrutinise the evidence with circumspection and that is what I propose to do.