Dr. Arijit Pasayat, J.— Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court directing the acquittal of the respondents who faced trial for alleged commission of offences punishable under Section 302 of the Penal Code, 1860 (in short “IPC”) so far as the respondents Ramesh (A-1) and Gurudayal (A-3) are concerned and Section 302 read with Section 34 IPC so far as the respondents Kailash (A-2) and Pappu (A-4) respectively are concerned. Additionally, respondent Gurudayal was charged for alleged commission of offence punishable under Section 25(1-B)(a) of the Arms Act, 1959 (in short “the Arms Act”).
2. The prosecution version in a nutshell is as follows:
On 21-5-1993 at about 9 a.m, near Village Kurthara all the respondents caused the murder of Ramavtar s/o Buddhasingh and attempted on the life of Rajesh alias Raje and Manik Singh. On 21-5-1993 in the morning Manik Singh was required to attend court for hearing at Bhind. For attending the court he left Village Kurthara along with his brother Ramavtar, his wife's brother and his uncle-in-law Prahlad and Rajesh proceeding towards the court on bicycles. Prahlad was riding the first cycle and Manik was sitting on the carrier of the cycle behind him. Just behind Prahlad, Rajesh along with Ramavtar was following in another bicycle. When they were near the agricultural field of Ramkishan, then Gurudayal armed with a .315 bore rifle, Kailash armed with a single-barrelled .12 bore rifle, Pappu Yadav armed with a single-barrelled .12 bore rifle and Ramesh alias Chhinge armed with a farsa were chasing them. When they reached near the complainant party Kailash fired from his .12 bore rifle.
3. On hearing the gunshot Ramavtar fell from the bicycle of Rajesh. As he got up, Gurudayal shot at him with .315 bore rifle. The bullet pierced through the body on the right side of chest and Kailash and Pappu Yadav also fired with an intention to cause death, but the bullet had not hurt anyone.
4. FIR is said to be lodged at 9.30 a.m by Manik Singh. Spot map (Ext. P-11) was drawn and one empty cartridge of .12 bore rifle and bloodstained earth were seized vide Ext. P-13. The trial court after framing charges and on analysing the evidence tendered, convicted the appellants.
5. Before the High Court it was stated that the incident allegedly took place in the early morning and the time of incident is mentioned as 9 a.m It was submitted that the FIR was prepared with deliberation and there was non-compliance with the requirements of Section 157 of the Code of Criminal Procedure, 1973 (in short “the Code”). It was pointed out with reference to the evidence of Dr. K.N Sharma (PW 14) that Prahlad and Manik Singh had identified the dead body and they informed him that they had seen the dead body for the first time at 7.30 a.m
6. In the post-mortem report, Ext. P-9 the doctor found that the stomach of the deceased was empty and there was no digested or semi-digested food in the stomach. The period necessary for digestion and semi-digestion of food was indicated by the doctor. It was therefore submitted before the High Court that the incident took place around 7.30 a.m and the deceased was murdered by some unknown person and because of enmity the accused persons were falsely implicated.
7. With reference to Ext. P-3 it was submitted that the time of preparation of the spot map was earlier mentioned at 10.55 a.m which was scored out and the time was changed to 9 a.m Additionally, it was submitted that when Safina form was prepared at 10.45 a.m the question of preparation of map at 9 a.m appears to be doubtful. Time earlier mentioned i.e 10.55 a.m was the correct time mentioned in the inquest report.
8. It was pointed out that the FIR was prepared in the police station whereas the witnesses have deposed that the complaint was recorded on the spot. Later on FIR was lodged at the police station. In that view of the matter it was submitted that the FIR was suppressed by the prosecution. PW 3's evidence was highlighted to show that in Para 9 he had deposed that after the fire he ran away from the spot and reported the matter to the Station Officer-in-Charge. He admitted that Manik had not reached the police station before him as he was sitting by the side of the dead body when police reached the spot. This submission was corroborated by the statement of Manik (PW 16) who admitted that when Ramavtar was hit by Gurudayal, he remained at the spot till Town Inspector, constable and other police officer reached the spot. He also admitted that 10 to 20 villagers had gathered at the spot but he had not told them about the incident.
9. Learned counsel appearing for the State before the High Court submitted that there were certain minor corrections which did not corrode the credibility of the prosecution version.
10. The High Court noted that there are material discrepancies in the eyewitnesses' version. Considering the overall evidence it has been established that the deceased died on account of gunshot injuries but that the overt act cannot be attributed to Kailash and Pappu. Since the witnesses had deposed that Ramesh was not present at the spot, he was also given the benefit of doubt. Accordingly, the conviction of Ramesh, Kailash and Pappu was set aside.
11. So far as Gurudayal is concerned, with reference to the evidence of the doctor it was held that the distance from which the bullet was fired upon was not known. But he had mentioned that the body was identified at 7.30 in the morning, whereas the witnesses had deposed that the incident took place when they were proceeding towards the court. PW 4 had deposed that the deceased had gone to the court after taking meal but the post-mortem report is contrary to it. In view of this the High Court directed acquittal.
12. There is no appearance on behalf of the accused in spite of service of notice.
13. At the outset it must be noticed that the judgment of the High Court is fully unreasoned and the only conclusions for directing acquittal are contained in paras 7 and 9 which read as follows:
“7. We have heard the counsel for the parties. It is true that there are material discrepancies in the eyewitness account. Firing by Kailash and Pappu has not injured anyone and some witnesses have deposed that Ramesh was not present on the spot. Considering the overall evidence, it was established that the deceased died on account of gunshot injury, but the act of Kailash and Pappu is not proved beyond reasonable doubt. Since witnesses have deposed that Ramesh was not present on the spot, he is entitled to the benefit of doubt.
9. As far as Gurudayal is concerned, in the evidence of PW 14 Dr. K.N Sharma, he was not able to state the distance from which the bullet was fired upon the deceased but he has mentioned that the body was identified at 7.30 in the morning, whereas the witnesses have deposed that the incident took place when they were proceeding towards the court. Wife of Ramavtar (PW 4) has deposed that the deceased has gone to the court after having meals, but in the post-mortem report, no food was found in the stomach. Therefore the time of incident has been changed by the prosecution.”
14. There were five witnesses examined by the prosecution who claimed to be eyewitnesses. Rajesh (PW 1) did not support the prosecution version. However PWs 3 and 16 i.e Prahlad and Manik fully corroborated the prosecution version. The High Court erroneously observed that there was no injury. In fact the evidence clearly established that Ramesh has caused farsa injury on the head of the deceased. Unfortunately, this was not noticed by the High Court.
15. Apart from the fact that there was no discussion of the eyewitnesses' version, even the medical evidence has not been discussed. The farsa injury caused on the head has not been noticed. The FIR was lodged at about 9.30 a.m The police station undisputedly was about a distance of 6 km. The High Court's judgment is clearly unsustainable in view of the deficiencies highlighted above.
16. Normally, we would have restored the judgment of the trial court. But in view of the fact that the respondents have not appeared in spite of the notice, we remit the matter to the High Court for detailed analysis of the relevant evidence and give decision on merit afresh.
17. The appeal is allowed to the aforesaid extent.