| Headnote |
Penal Code, 1860: s.302 – Prosecution case was that the victim-deceased was sitting in a tea stall on the fateful day, when the first six accused entered and accused no.2 and 3 all of a sudden started firing at the deceased with a pistol, while the other accused started stabbing and hacking him with daggers, swords etc. and the incident occurred at the instigation of accused nos.7, 8 and 9 – Son of the deceased (PW-3) lodged FIR stating that he was present at the site along with other witnesses and tried to resist the accused – They were threatened with pistol and to save their life, they ran away – Trial court found that accused no.1 who died during pendency of trial was the main accused – Instant appeals filed by accused nos. 2, 3 and 9 against conviction by High Court – Held: PW-1, the only independent witness present at the time of occurrence did not implicate accused No.9 nor assign any role to him – As per his deposition, he did not even see him at the site – The manner in which court put the case to accused No.9, and recorded his statement under s.313 of the Cr.P.C. was also perfunctory – The inconsistencies in the testimonies created a doubt in the case of the prosecution qua any role of accused No.9 – Thus, prosecution was not able to establish case against him much less beyond reasonable doubt – Accused No.9 is, therefore, entitled to acquittal – With regard to accused Nos.2 and 3, order of trial court showed that what has weighed in acquitting these two accused was the fact that in the testimony of the Doctor (PW-5), who performed the post-mortem examination on the body of the deceased, a number of injuries were found, caused by sharp pointed objects – In the cross-examination, PW-5 specifically stated that none of the injuries was a gun-shot injury – Thus, medical evidence suggested use of daggers and a sword – The plea of the prosecution was that the gun used by these two accused (as according to the role assigned to them) may have been used only to scare away the persons – The testimony of PW-6 that he saw the gun being fired, but could not make out whether a bullet hit the deceased or not was taken into account, but, in the context of the overall testimony of the eye-witnesses, the story set forth by the prosecution and the witnesses was found to be believable by the High Court – However, this story did not deal with the said aspects noted by the trial court, i.e., no bullet injury, the weapon not being recovered, no bullets or bullet marks being found at the place of occurrence and the inconsistencies in the testimonies of the witnesses – Trial court rightly observed that it was accused No.1 who was the main accused, who was subsequently murdered – Insofar as the statement of accused No.2, under s.313 of the Cr.P.C. was concerned, the testimonies of PW-3, PW-4 and PW-6 all were put to him but the said accused claimed absence from the place of the occurrence – In case of accused No.3, once again, the testimonies of all the three eye-witnesses were put to him, but the role sought to be assigned to him was stated to be a hit with the dagger, and not the role at the accused as set out in the FIR – The subsequent testimonies, however, sought to assign a different role than the one assigned in the FIR, bringing about an inconsistency – The prosecution was not able to prove the case beyond reasonable doubt against these two accused – Accused Nos.2 and 3 respectively, are entitled to the benefit of doubt and are also acquitted. |
