IMPORTANT POINT
Convincing and reliable evidence of eye witnesses should not be discarded in view of inconsistent medical evidence.

JUDGMENT

C.K. Thakker, J. —

1. Both these appeals arise out of common judgment and order passed by the High Court of Madhya Pradesh (Gwalior Bench) dated January 3, 2003 in Criminal Appeal Nos. 242 of 1991 and 253 of 1991. By the said order, the High Court allowed the appeal filed by the accused and set aside the order of conviction and sentence recorded by the Additional Sessions Judge, Shivpuri dated October 14, 1991 in Sessions Case No. 29 of 1990.

2. The case of the prosecution is that on October 20, 1989 Balkishan (hereinafter referred to as ‘the deceased’) and PW 2 Sarvan Lal were guarding their Jowar crop and for the said purpose they had stayed during night time in their field. Their neighbour farmers, namely, Ramprasad (PW8), Ramsingh (PW9) and Raghunath (PW10) were also guarding over their respective crops and were in the huts constructed in their fields. According to the prosecution, at about 3-4 a.m. early in the morning, cattle of village Nehgawan started grazing the Jowar crop of the deceased. Deceased Balkishan and Sarvan Lal (PW2) surrounded the cattle and started taking them to cattle pond. At that time, all accused persons who were residents of village Nehgawan appeared on the spot. They were armed with lethal weapons, like farsa, ballam, luhangi, lathi, etc. They attacked Balkishan and Sarvan Lal and caused injuries to them. On the shouts of injured Balkishan and Servanlal, Ram Singh, Raghu Nath, Ram Prasad and Ram Niwas reached there and saved Balkishan and Sarvan Lal. The accused did not allow the cattle to be taken to cattle pond and took away with them. While leaving the place, they threatened deceased Balkishan and Sarvan Lal of their lives.

3. Immediately after the incident, deceased Balkishan and Sarvan Lal went to thana and lodged First Information Report (FIR) at Police Station Rannod. The incident was narrated by deceased Balkishan and Case No. 57 of 1989 of was registered against the accused for offences punishable under Sections 147, 148, 149, 323, 324 and 406 of the Indian Penal Code, 1860 (IPC). Both the injured were then taken to Primary Health Centre, Rannod for medical examination. Dr. Suresh Majeji (PW5) examined Balksihan. He also examined Sarvan Lal. Since the condition of Balkishan was critical, he was taken to District Hospital, Shivpuri. On the way, however, Balkishan died. Postmortem of Balkishan was performed by Dr. G.D. Agrawal (PW 1) on the next day i.e. on October 21, 1989. Usual investigation was carried out, accused were arrested, weapons were recovered at their instance and charge was framed against the accused. They denied having committed any offence and claimed to be tried.

4. The learned Additional Sessions Judge, Shivpuri believed the evidence of PW 2 Sarvan Lal, PW 4 Ram Niwas, PW 8 Ram Prasad, (eye witnesses) and PW 1 Dr. G.D. Agarwal, convicted all the accused for an offence punishable under Sections 143, 302 read with 149 and 324 read with 149, 148, IPC for forming unlawful assembly and for causing death of Balkishan and for causing grievous hurt to Sarvan Lal in furtherance of common object. They were accordingly punished for the offence punishable under Section 302 read with Section 149, IPC for which they were ordered to undergo rigorous imprisonment for life. For the offence punishable under Section 324 read with Section 149, IPC, they were ordered to undergo imprisonment for two years. Similarly, for an offence under Section 148, IPC, they were ordered to undergo rigorous imprisonment for two years.

5. Being aggrieved by the judgment and order passed by the trial Court, the respondent-herein preferred appeals. As stated above, the High Court, vide its judgment and order dated January 3, 2003, set aside the order of conviction and sentence recorded by the trial Court and acquitted all the accused mainly on the ground that there was inconsistency between the evidence of eye-witnesses and medical evidence.

6. The State has challenged the order of acquittal recorded by the H