Important Point
Suggestion by defence to prosecution witness that prosecution party attacked accused would negative the plea of alibi set up in defence.

Judgment

Srinivasan, J.-The appellant and six other persons stood prosecuted for offences under Sections 147, 148, 302 read with 149 and 307/149. They were acquitted by the Additional District Judge, Narisinghgarh, Distt. Rajgarh (Byara), M.P. State. On appeal, the High Court confirmed the acquittal of five persons but reversed the judgment of the trial Judge with reference to the appellant and another by name Ram Singh. The appellant was convicted for offences under Sections 302 and 324 IPC and sentenced to imprisonment for life u/s 302 and impris­onment for four months and a fine of Rs. 1000/- u/s 324. We are not concerned with the other accused as he has not come to this Court.

2. The case of the prosecution is shortly as follows : There was prior enmity between the accused persons on the one side and Gorelal and others on the other. The accused persons formed an unlawful assem­bly and on 29.12.86 at about 2 P.M. committed the murder of Gorelal in the jungle of Padiliya Khadi. Ram Singh and the appellant shot the deceased with a gun. They caused gun shot injuries to Nankram, Deo­chand, Beni Singh and Ramesh in the attempt to murder them. Nanak Ram became unconscious. Sewa Ram (P.W. 1) was working in his field when he saw a bullock cart coming from forest side. On hearing sounds of screaming and wailing, he went to the cart and found the dead body of Gorelal. He was informed by Hiralal s/o Ramratan that the appellant, his brother Bhanwaria, Amritlal, Daryhao Singh, Kailash, Ram Singh and Pappu killed Gorelal in Chhapra and that Ramsingh and the appellant fired guns at Gorelal. He was also informed that the others sustained bullet-injuries. Thereafter Sevaram went to the Police Station at Kotra and reported the matter at 5.30 P.M., the same day. The report was recorded. J.S. Tomar (P.W. 19), SHO registered offences u/ss 147, 148, 302, 307 read with 149 vide Crime No. 148/86.

3. After investigation the accused persons were prosecuted. They denied the charges and pleaded false implication. They also pleaded that the complainant party caused damage to their tractor. After trial, the trial Judge acquitted all the accused. On appeal by the State, the High Court reversed the judgment as regards the appellant and Ram Singh and convicted them while confirming the acquittal of the rest of the accused.

4. The appellant’s counsel made the following submissions :- The FIR was not lodged on the same day but it was done only on the next day. The appellant has proved alibi and he was not at the place of occur­rence. No doctor has been examined to prove the alleged injuries of eye witnesses. Nor have they produced any medical certificate. The evidence of the prosecution witnesses is full of discrepancies. The driver of the tractor recovered by the prosecution was not examined by it, and he has been examined by the defence. His evidence corroborated by the damage on the tractor proves conclusively the defence version. The Judgment of the High Court is perfunctory and unsustainable.

5. Learned counsel for the State submitted that all the witnesses of the prosecution are consistent in stating that the appellant fired the gun after getting it from Ram Singh. According to him the appellant has failed to plead or prove alibi and D.W. 1 was not the driver of the tractor in question. He argued that no suggestion of alibi was put to the prosecution witnesses by the defence counsel. According to him the judgment of the High Court does not warrant any interference.

6. We heard counsel on both sides at length. We have perused the entire evidence on record. There are five eye-witnesses, namely, P.W. 2, P.W. 12, P.W. 13, P.W. 14 and P.W. 15. All of them except P.W. 2 received gun-shot injuries. Their evidence is consistent and excepting minor discrepancies which are natural due to frailty of human memory, nothing has been pointed out for discrediting their evidence. All the five witnesses have categorically spoken to the presence of the appellant on the spot