The defence plea that PW2 had received the injuries on the evening of June, 23 and not in the morning of June, 24 gains credence from the fact that an incident between the two sides had admittedly taken place on the evening of June 23, 1995. In the face of this admitted position and the medical evidence, it is difficult to accept that the injuries found on the person of PW2 were received by him in the morning of June, 24. From this, either of two inferences would logically follow one. PW2 was not present at the occurrence in which the deceased was killed in the morning. The occurrence in which the deceased was killed did not take place in the morning of June, 24 and he was not killed in the manner as suggested by the prosecution. Both the inferences are equally damaging to the prosecution case. In view of the facts and the circumstances, it would be highly unsafe to uphold and sustain the appellant’s conviction for the offence of murder, and the prudent and safe course would be to give him the benefit of doubt. Accordingly, he is acquitted of the charges u/s 302 and 324 IPC. The next appeal is directed against the judgment of the Punjab and Haryana High Court in Criminal Appeals Nos. 201 of 1996, confirming the appellant’s conviction under section 302 of the penal code and the sentence of life imprisonment awarded to him by the trial court for having committed the murder of Kamlesh. In his statement before the police he said that in the morning he along with his two younger brothers, Ram Kumar (PW6) and Kamlesh (the deceased) was sitting on the chabutra of their baithak in village, Keshopur when Kamlesh proceeded for his house to bring the clothes for getting ready to go to Faridpur, where he was due to appear in the B.A. examination. As he reached the chaupal, where the lane turned, he was waylaid by the accused Karam and Rampal who were armed with knives. As to the cause of the incident he stated that shortly before the occurrence his younger brother Suresh was elected as the village Sarpanch. He did not pay any heed to his demands. This greatly annoyed them as they thought of themselves as the chaudhary of the village. This had led to an altercation and an exchange of hot words between the two sides on the previous evening but the matter was then patched up by discussion. He finally stated that the accused in league with one another had killed his brother Dinesh by giving him knife and lathi blows. After the occurrence he brought Kamlesh to the civil hospital, Kanpur where he was declared ‘brought dead’. Dr. Pawan Kumar (PW3) who was in the hospital on duty sent information in that regard to the SHO, PS Keshopur whereupon PW8 came to the hospital and took down the statement of the appellant. The FIR was delivered at the residence of the area Magistrate on the same day. What is, however, of significance for our purpose is that the trial court disbelieved a substantial part of the prosecution story. The trial court did not accept the prosecution case that accused were present at the place of occurrence and, accordingly, directed their acquittal. As regards, the trial court pointed out that the three incised wounds on the person of the deceased that were attributed to him were, according to the medical evidence, post-mortem in nature, that is to say, those three injuries were inflicted after Mahesh was already dead. The medical evidence, thus, clearly eliminated the participation of Rakesh in the case. He too was, therefore, acquitted. The acquittal of the three accused brought down the number of the remaining accused for the shared common intention with the appellant. Apparently, that was one of the reasons for their conviction simply under section 323. Apart from the three accused whose presence at the place of occurrence was not accepted, the trial court also doubted the presence of two out of the three eye witnesses. The trial court further held that even PW2, the only remaining eye witness, had mixed-up truth with falsehood but his testimony was not liable to be discarded wholly since he had himself received injury in the same occurrence. In regard to the injury, the trial court came to a truly amazing conclusion. The injury on the hand of Rakesh was certainly in existence and it was also proved by the medical evidence. The trial court resolved the contradiction by fastening the injury to Rakesh too. (800)
