IMPORTANT POINT
Accused having enjoyed acquittal from High Court, death sentence even if it would have been merited, would not be imposed.

JUDGMENT

Hansaria, J.-This appeal is by the State and is directed against the judgment of the Madhya Pradesh High Court by which the respondent was acquitted, on appeal being preferred by him against his conviction under section 302 for having caused the death of one Munibai on 20th May, 1982 around 9 a.m.

2. The prosecution sought to establish the guilt of the respondent by adducing evidence relating to the motive of the crime; eye-witness to the occurrence; dying declaration; and recovery of the revolver from the custody of the respondent by which death had been caused, which revolver had been stolen by the respondent, a police constable, from the Police Malkhana in the night of 19th-20th May, 1982. Though the trial court accepted all these facets of the prosecution case, the High Court disbelieved all.

3. We would examine the material on record qua each of the aforesaid materials.

(i) Motive

4. What led to the killing of Munibai had connection, according to the prosecution, with the respondent having an evil eye on her. It may be stated that the respondent was a tenant and was occupying a part of the house, in which landlord PW. 3-Angad, was living, whose daughter-in-law was deceased Munibai. The family came to know about the respondent having an evil eye from the deceased herself, which was reported by her to her mother-in-law PW.2-Kosabai. This was about 15 days before the occurrence. Kosabai in turn stated about this to her husband (PW. 3), who asked the respondent to vacate the premises.

5. Both PWs. 2 and 3 have categorically deposed about these facts. PW. 2 had, however, stated that she had spoken to her husband on the very day Munibai told about the respondent having an evil eye , which was about 15 days before the occurrence, whereas the evidence of PW. 3 is that his wife had stated to him about this aspect 7-8 days before the occurrence. We do not think if this little discrepancy is enough to discard the otherwise consistent evidence on this point, especially when the statement made by PW.3 that he had asked the respondent to vacate the house has not challenged in cross-examination. We also do not think that omission of the PW.3 to tell during investigation that his wife had asked him to get the house vacated is enough to disbelieve PW. 2 that she had asked her husband to do so.

6. We are, therefore, of the view that the High Court s finding on this point is totally against the weight of evidence on record.

(ii) Eye witness

7 . PW. 1- Radhabai, a daughter of PW. 3, is the only witness to have deposed about the firing of shots by the respondent at the house in which the deceased was living. Her evidence as to the manner in which Munibai was fired at finds absolute corroboration from the finding recorded by the autopsy surgeon PW. 7. The High Court, however, disbelieved PW. 1 on who grounds. First, by referring to her evidence that when she saw the respondent firing shots, she had asked him as to why he was assaulting her bhabhi. To this the answer was "What has happened so far? I shall kill your whole family."

After saying this, the accused had pressed the barrel of the pistol on her chest. By then the mother of the witness had arrived, so too a neighbour named Prakash. Uncle Faddi Ram also came. The High Court has opined that if this was the position, PW.1 s evidence that the respondent had left the premises without being caught cannot be accepted. Secondly, the High Court was of the view that the evidence of PW. 1 about the deceased having made any dying declaration cannot be accepted, because the deceased was really not in a position to make any statement.

8. Shri Gambhir has strenuously urged that the High Court s assessment of the evidence of PW. 1 is absolutely reasonable and, in any case, that view being also possible, we may not find fault with the High Court s judgment so much so as to set aside the acquittal.

9. We are, however, of the view that even if it be accepted that the mother, the neighbour and uncle ha