IMPORTANT POINT
Murder and hurt – Court cannot resort to undue discrimination in appreciation of evidence between similarly situated accused persons.

JUDGMENT :

Abhay S. Oka, J.

1. These two appeals take exception to the judgment dated 31st July 2009 passed by the High Court of Madhya Pradesh by which conviction of the appellants has been confirmed. In all, there were nine accused. The appellants in Criminal Appeal No.162 of 2010 are accused nos.2 and 3 and the appellant in Criminal Appeal No.1716 of 2010 is accused no.9.

2. As per the case of the prosecution, when the incident occurred, the complainant Jagannath (P.W.1) and his wife Kamlabai (P.W.8) along with their son deceased Laxminarayan as well as two daughters-in-law Suganbai (P.W.10) and Sharmilabai (P.W.11) were sleeping in the house situated near a tube-well in their field. P.W.10 and P.W.11 were sleeping inside the house and others were sleeping outside. Around midnight, the accused reached the house and started assaulting Jagannath (P.W.1). When P.W.8 Kamlabai tried to save P.W.1 Jagannath, even she was assaulted by the accused. At that time, deceased Laxminarayan came there to protect his parents. He was also assaulted by the appellants. Though deceased ran away to save himself, the accused chased him and assaulted him. He sustained injuries. While he was being taken by a tractor to the police station, he died on the way. It must be noted here that P.W.18 who was the Executive Magistrate purportedly recorded a statement of P.W.1 Jagannath as a dying declaration. The Trial Court found all nine accused persons guilty of the offence punishable under Section 302 of Indian Penal Code (for short, ‘IPC’) with the aid of Section 149 of IPC. The Trial Court held that accused no.1 -Ranglal and accused no.4 -Prem Singh were guilty of the offence punishable under Section 325 read with Section 149 of IPC for assaulting P.W.1 Jagannath. The said two accused were also held guilty of the offence punishable under Section 325 read with Section 149 of IPC for assaulting P.W.8 Kamlabai. Both accused nos.1 and 4 were also convicted for the offence under Section 148 of IPC. The Trial Court sentenced all the accused to undergo life imprisonment for the offence punishable under Section 302 read with Section 149 of IPC. The accused were also separately punished for the other offences.

3. There were separate appeals preferred by the accused. It must be noted here that accused no.4 Prem Singh died during the pendency of the appeals. By the impugned judgment, the High Court acquitted accused no.1 Ranglal; accused no.5 Bhagwan Singh; accused no.6 Kamal Singh; accused no.7 Benu and accused no.8 Lakhan. However, the conviction and sentence of the appellants in these two appeals was maintained. The learned counsel for the appellants during the course of submissions stated that accused no.2 who is the appellant no.1 in Criminal Appeal No.162 of 2010 has passed away.

4. Ms. Pragati Neekhra, learned counsel appearing for appellants in Criminal Appeal No.162 of 2010 has made detailed submissions. Mr. Sharangouda S. Patil, learned counsel appointed to espouse the cause of appellant in Criminal Appeal No.1716 of 2010, has assisted the Court. The learned counsel appearing for appellants has taken us through the judgments of the Trial Court and the High Court as well as the material part of depositions of the prosecution witnesses. The learned counsel pointed out that the appellants have been convicted only on the basis of the evidence of P.W.1 Jagannath and P.W.8 Kamlabai and the evidence of the two other injured persons, namely, P.W.10 Suganbai and P.W.11 Sharmilabai has been disbelieved. She submitted that in fact evidence of P.W.1 and P.W.8 also deserve to be discarded as there are number of material omissions and contradictions brought on record during their cross-examination. She submitted that a serious doubt is created whether both of them have witnessed the incident as both of them were allegedly attacked by the accused while they were sleeping. The learned counsel appearing for the appellants submitted that though P.W.1 and P.W.8 had ascribed th