Dr.
ARIJIT
PASAYAT,
J.
Heard learned counsel for the State and learned counsel for the
respondents.
By the impugned judgment the High Court has directed acquittal of
the respondents who faced trial for alleged commission of offences
punishable under Section 302 read with Section 149 of the Indian Penal Code,
1860 (in short `IPC'), Section 323 read with Section 149 IPC. Some others were also sentenced for offences relatable to Section 148 and 147 IPC.
The occurrence took place on 23/10/1979. According to the
prosecution, the eye witnesses were PW.1, the complainant, PW.4-the mother
and PW.5 the wife of the complainant. Though PW.3 was examined as alleged
eye witness, he did not support
the prosecution version. The defence version was that it was PW.1 who was responsible for causing death of the deceased who happened to be his
brother. The trial Court, as noted above, found the evidence to be cogent and
credible and recorded conviction.
In appeal the stand taken was that the presence of PW.4 was
doubtful. In the First Information Report lodged, there was no mention about
PW.1 and PW.4 having witnessed the occurrence. Additionally, according to
the so-called eye witnesses, large number of injuries were caused by bricks
bats and sharp edged weapons. The medical evidence did not disclose
injuries which could have been possible by sharp edged weapons and bricks.
The High Court found that there were several unexplained circumstances
which cast doubt on the credibility of the prosecution version and directed
acquittal.
Learned counsel for the appellant-State submitted that the evidence
of the eye witnesses should not have been discarded by the High Court.
Learned counsel for the respondent supported the judgment of the High
Court.
We find that the High Court has referred to a large number of
circumstances as to the credibility of the prosecution version. Firstly, the
non-seizure of a blood stained axe belonging to PW.1 at the spot of
occurrence was a highly suspicious circumstance. The presence of
informant or PW.4 has not been indicated in the First Information Report. The High Court also noticed that it was not the informant but one of the
accused persons Jai Narain who had made arrangement for shifting the
deceased in injured condition to the hospital. All these circumstances
certainly have relevance and the High Court has rightly placed reliance on
them to hold that the accused persons were not guilty. In that view of the
matter High Court's judgment cannot be said to be perverse to warrant
interference.
The appeal fails and is dismissed.
It is to be noted that accused No.1 has died during the pendency of
the appeal before the High Court.
The bailable warrants executed in terms of the order dated 9/2/2009
shall stand discharged.
(D.K. JAIN)
(Dr. MUKUNDAKAM SHARMA) New Delhi, March 31, 2009.