IMPORTANT POINT
Conviction cannot be recorded by going against mass of evidence.

JUDGMENT :

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.09.2019 passed by the High Court of Madhya Pradesh at Indore in Criminal Appeal No. 1244 of 2011 by which the High Court has dismissed the said appeal and has confirmed the judgment and order of conviction passed by the learned Trial Court convicting the accused for the offences punishable under Section 302 read with Section 34 of the IPC, original accused – Mukesh has preferred the present appeal.

2. That an FIR was lodged by one Nanbai – wife of the deceased at the Police Station Nanpur, alleging that on the Diwali night at about 10:00 or 11:00 pm the elder brother of her husband (Jeth) – accused No.1 – Sekadiya and his son Mukesh – accused No.2 came to her house to call her husband saying that there had been cooked ‘Murga’ in their house. According to the complainant, her husband – Vesta went along with accused No.1 and accused No.2. According to the complainant after sometime, she heard the voice of crying/scream of her husband and she immediately rushed to the house of her Jeth – accused No.1 – Sekadiya and she saw in the light of electricity that accused No.3 – Jethani (wife of accused No.1 – Sekadiya) had caught hold her husband – Vesta and accused No.1 assaulted her husband by Axe on the head, due to which Vesta fell down. As per the case of the prosecution, the husband of the complainant – Vesta died due to injuries from the axe. According to the prosecution there was a land dispute and therefore the accused persons killed the deceased by calling him at their house. According to the prosecution the accused persons committed the offences punishable under Section 302 read with Section 34 of the IPC. After conclusion of the investigation, the Investigating Officer filed the chargesheet against the accused for the aforesaid offences. The accused pleaded not guilty and therefore all of them claimed to be tried by the learned Sessions Court for the offences punishable under Section 302 read with Section 34 of the IPC. To prove the charge against accused the prosecution examined in all eight witnesses out of which Nanbai – PW1 was the eye witness. The prosecution also brought on record the documentary evidences including the medical evidence through various witnesses. On closure of the evidence on the side of the prosecution, statements of accused under Section 313 Cr.PC were recorded in which the accused stated that they have been falsely implicated in the case at the instance of the Sarpanch due to enmity of election. On appreciation of evidence, the learned Trial Court held all the accused guilty for the offences punishable under Section 302 read with Section 34 of the IPC and sentenced all of them to undergo life imprisonment.

3. Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Trial Court accused preferred an appeal before the High Court. By the impugned judgment and order the High Court has partly allowed the said appeal and has acquitted the original accused No.3 – wife of accused No.1 (Jaithani), however, has dismissed the appeal qua accused Nos.1 and 2.

4. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court original accused No.1 and 2 preferred appeals before this Court. Appeal qua accused No.1 – Sekadiya has been dismissed by this Court earlier vide judgment/order dated 12.01.2021, therefore, the present appeal is required to be considered qua accused No.2 – Mukesh – son of accused No.1.

5. We have heard learned counsel appearing on behalf of the respective parties at length. We have also gone through the findings recorded by the learned Trial Court as well as the reasoning given by the High Court while convicting Mukesh – accused No.2 for the offences punishable under Section 302 read with Section 34 of the IPC. We have also gone through the deposition of PW1 – original complainant – eye witness. The learned Trial Court has observed