STATE OF M P Vs. ARVIND JOSHI

JUDGEMENT

(1.) - The State of Madhya pradesh has filed this appeal, after obtaining leave from this court under Section 378 of Cr. P. C. , against the judgment of acquittal dated 28. 12. 1993 in Sessions Trial No. 279/91 by which, the respondent was tried for the offence under Section 302 of I. P. C.

(2.) AS per prosecution story, on 10/4/91, deceased Kallu @ Mukesh, son of the complainant Jagannath (PW-1) had gone to "khatik Mohalla". Complainant Jagannath who is father of the deceased had received an information that some quarrel took place with his son. So, he also went there and had seen that Arvind Joshi was carrying a sword in his hand and his father ashok was carrying a Lathi and near "hanuman Temple", both the accused Ashok Joshi and his father, assaulted the deceased and inflicted many blows by their respective weapons and the deceased was having several injuries on the head and bleeding After receiving blows, he fell down. Complainant Jagannath (PW- 1), pappu Nadariya (PW-6), Anil Kumar (PW-2) and Premraj (PW-5), those who were present on the spot, tried to save the deceased but they could not save him. Deceased Kallu, in an injured condition, was taken to the police station. He was unconscious and was not even in a position to speak and therefore, he was referred to medical examination. Thereafter, his father jagannath (PW-1) lodged the FIR (Ex. P/1), on which crime was registered, matter was investigated and the charge-sheet was filed.

(3.) DURING trial, the prosecution examined as many as twenty witnesses out of which, six were eye-witnesses but the remaining three eye-witnesses, namely, Anil Kumar (PW-2), Premraj (PW-5) and Pappu Nadriya (PW-6), have not supported the prosecution case. As per prosecution, only three eye-witnesses namely, Jagannath (PW1) father of the deceased, Totaram (PW-3), who is real brother of the deceased and Narayan (PW-16), one of the neighbours of the deceased, have supported the prosecution case. But the trial Court has not placed reliance on their testimony and found that complainant jagannath (PW-1) in his cross-examination has admitted that he reached on the spot after the incident was over. The statement of Totaram (PW-3) who is real brother of the deceased, was recorded after 1 and 1/2 months and his presence on the spot was neither shown in the FIR nor disclosed by his own father Jagannath (PW-1 ). The evidence of Narayan (PW-16) was also not found reliable because he has narrated a different story and stated that one more person namely, Papeeta was also there and he had also caused stone blows to the deceased. The trial court also found omission of this fact in his case-diary statement (Ex. D/3) that one more person Papeeta, was present on the spot and he was also involved in beating the deceased. The statement of narayan (PW-16) was also recorded after five days, Though, Narayan (PW-16) was not declared hostile but he has admitted that the incident took place in night at 9 p. m. and he had seen the incident from a distance of 60 ft but this fact was also found omitted in his case-diary statement. In the exami-nation-in-chief this witness stated that he had seen the incident from Nala though his house is 300 ft. away from Nala, but the prosecution has not explained about the distance between Nala and the place of occurrence nor this fact was got verified from this witness. Therefore, the trial court has not placed reliance on the evidence of all the aforesaid three eye-witnesses. The trial court was of the view that they were not present on the spot and they has not seen the incident. Court has also found that on the day of incident it was a dark night and source of light was not available on the spot and this fact was also not mentioned in the spot-map.