IMPORTANT POINT
Evidence - discrepancies - effect.

Judgment :-

RANJANA PRAKASH DESAI, J.

1. The two appellants (A1-Anil and A2-Ashok respectively) along with four others (A3Baba, A4-Kishor, A5-Shankar and A6-Mayabai) were charged for offences under Sections 147, 148, 302 read with Section 149 of the Indian Penal Code (for short, “the IPC”). Alternatively, they were also charged for offence under Section 302 read with Section 34 of the IPC. During the pendency of the trial, A3-Baba was murdered and, therefore, the case abated as against him.

2. The prosecution case rests on the evidence of PW-3 Meena, wife of Vijay Lambat (“the deceased”). On 13/12/1991 at 22:25 hours, she is stated to have lodged FIR at Wardha City Police Station. In her FIR, she stated that the deceased was a driver. On 13/12/1991, in the evening, she and the deceased were at their house. At about 8.00 p.m., A1-Anil, A2-Ashok and A5- Shankar came to their house. They gave her money and asked her to bring liquor. At that time, the deceased was sleeping. She sent her son to the neighbour’s house to bring liquor. When he brought liquor, they consumed it. Thereafter, they asked the deceased to accompany them for paan. The deceased told them that he was not well. Even then, they forced him to get up. They brought him out in the courtyard. In the courtyard, A1-Anil and A2- Ashok dealt knife blows on his abdomen. Her mother-in-law A6-Mayabai was holding the deceased. On account of knife blows, the deceased fell on the spot. When she rushed to help the deceased, she was pushed aside by holding her hair. She then rushed to the Wardha City Police Station and lodged the FIR. The deceased was shifted to the General Hospital, Wardha where he was declared dead. On completion of the investigation, the accused came to be charged as aforesaid.

3. In support of its case, the prosecution examined seven witnesses. The accused stated that they were innocent. They claimed to be tried. On behalf of the accused, it was suggested that A1-Anil and A2-Ashok used to visit the house of A6-Mayabai, the mother of the deceased, which was resented by the deceased and his wife PW3Meena. It was suggested that A3-Baba may have murdered the deceased. Upon perusal of evidence learned Sessions Judge acquitted A1-Anil, A2-Ashok, A4-Kishor, A5-Shankar and A6-Mayabai of the offences punishable under Sections 147, 143 and 302 read with Section 149 of the IPC. He also acquitted A4-Kishor, A5-Shankar and A6Mayabai of the offence punishable under Section 302 read with Section 34 of the IPC. He found the appellants, A1-Anil and A2-Ashok guilty of the offence punishable under Section 302 read with Section 34 of the IPC and sentenced them to suffer imprisonment for life and to pay a fine of Rs.500/- each and, in default, to suffer further rigorous imprisonment for one month each. The appeal carried by A1-Anil and A2-Ashok was dismissed by the High Court and, hence, this appeal is filed by them.

4. Mr. Nitin Tambwekar, counsel for the appellants submitted that the prosecution case rests on the evidence of PW-3 Meena. Counsel submitted that PW-3 Meena is not a reliable witness because she has improved her case in the court and tried to involve A3Baba (since deceased) and A4-Kishor, who has been acquitted by the trial court. Counsel pointed out that, in any event, in the cross-examination, she stated that A1Anil, A2-Ashok and A3- Baba only dragged the deceased out and A3-Baba assaulted him. Counsel submitted that, therefore, A1-Anil and A2-Ashok cannot be convicted under Section 302 read with Section 34 of the IPC. It cannot be said that A1- Anil and A2-Ashok shared intention to commit murder with A3-Baba. In support of his submission, counsel relied on the judgment of this court in Narasappa v. State of Karnataka [(2007) 10 SCC 770]. Mr. Sachin Patil, counsel for the State, on the other hand, supported the impugned judgment.

5. From the evidence of Dr. Mun (PW-2), Medical Officer, attached to the General Hospital, Wardha, who conducted post-mortem examination