IMPORTANT POINT
Conviction on the basis of testimony of wholly unreliable witnesses would not be sustainable.

JUDGMENT :

B.R. GAVAI, J.

1. This appeal challenges the judgment and order passed by the Division Bench of the High Court of Madhya Pradesh at Jabalpur, Bench Gwalior in Criminal Appeal No. 276 of 1995 thereby dismissing the appeal filed by the present appellant as well as Rameshwar (since deceased) and confirming the judgment and order passed by the learned Special Judge and Second Additional Sessions Judge, Bhind passed in Sessions Trial No. 70 of 1984.

2. The prosecution story as could be gathered from the material placed on record is thus:

2.1 PW-5 Ramkali, PW-6 Mulchand along with their relative Pannalal (PW-8) and son-Ashok as well as granddaughter Rani and two other villagers namely, Badri and Mahesh were going on a bullock cart to Mau from Ujhawal at around 8-9 a.m. Pannalal (PW-8) was driving the cart. It is the case of the prosecution that when the cart reached near village Rasnol, two persons came in front of the cart and stopped their cart. Thereafter, 3-4 other persons also came there.

2.2 It is the prosecution case that Rameshwar (since deceased), appellant-Balaram, Uma Charan and Munna had come there after ten minutes of stopping of the cart, accused-Rameshwar fired the first shot and it hit Ashok in his chest. Thereafter, another shot was fired by accused-Uma Charan, which hit Ashok in the arms and thereafter, the third shot was fired which hit Ramkali (PW-5) in her right thigh.

2.3 As a result of firing, Ashok had become unconscious and was brought to Mau on cart. Pannalal reported the incident to the police on the basis of which an FIR came to be lodged initially for an offence punishable under Section 307 of the Indian Penal Code (for short ‘IPC’). Following the death of Ashok, the case was converted to one under Section 302 of the IPC.

3. After investigation, the charge-sheet came to be filed before the jurisdictional Magistrate. Since the case was exclusively triable by the Sessions Judge, it came to be committed to the Special Judge and Second Additional Sessions Judge, Bhind. Six accused came to be tried for the offences punishable under Sections 147, 148, 302, 149, 307 and 341 of the IPC. The learned Special Judge and Second Additional Sessions Judge, Bhind at the conclusion of the trial, found that accused Ram Bharosey, Munna, Uma Charan and Amar Singh were entitled to be acquitted for the charges levelled against them. However, Rameshwar (since deceased) was found guilty for commission of offences punishable under Sections 148, 302, 307 read with Section 149 of the IPC and appellant-Balaram was found guilty for the commission of offences punishable under Sections 148, 302 read with Section 149 and Section 307 of the IPC.

4. Being aggrieved thereby, an appeal was preferred by the accused which was dismissed by the High Court. Being further aggrieved, Rameshwar and Balaram filed an appeal before this Court. During the pendency of the appeal, Rameshwar has died and as such, the appeal against him has abated, which leaves us only with the appeal of the appellant-Balaram.

5. Heard Shri R. Chandrachud, learned counsel for the appellant and Shri V.V.V. Pattabhiram, learned Deputy Advocate General for the State of Himachal Pradesh.

6. Shri Chandrachud submits that, on the basis of very same evidence, the learned Trial Judge has acquitted four accused persons. He further submits that, though the evidence of PW-5 Ramkali and PW-6 Mulchand has specifically attributed a gun shot to Uma Charan, their evidence has been disbelieved insofar as Uma Charan is concerned. However, on the basis of the very same evidence, the appellant-Balaram has been convicted. It is submitted that, from the testimony of the other witnesses it would be clear that the appellant-Balaram was not even present at the spot and he has been falsely implicated. Learned counsel further submits that the motive attributed i.e. previous enmity is also far fetched inasmuch as the incident with regard to the murder of Ramadhar, brother of Balaram, had taken plac