Penal Code, 1860:
ss. 302/149, 325/149, 147, 148, 440 and 304 (Part I) – Prosecution of nine accused u/ss. 302/149, 325/149, 147, 148 and
440 – Injured eye-witness to the incident – Dying declaration recorded – Conviction by Trial court – High Court acquitted all the accused except accused No.1 – Conviction of accused No.1 was altered to one u/s.304 (Part I) – Appeal by State challenging acquittal order – Held: Statement of the eye-witness as well as dying declaration of deceased not corroborated by medical evidence – In the facts of the case liability cannot be fastened on the respondentaccused (accused Nos. 2 to 9) – In view of medical evidence it is evident that accused No.1 was not having intention to commit murder, but his act was to cause bodily injury which was likely to cause death – Therefore, conviction of accused No.1 u/s. 304 (Part I) and acquittal of rest of the accused by High Court was justified.
Dismissing the appeal, the Court
HELD: 1. The general statement by PW-1 regarding participation of all the accused with different weapons and causing injury to the deceased as well as to himself is not duly corroborated by medical evidence of PW-8 and autopsy surgeon PW-7. The version of PW-1 is belied by medical evidence. In the dying declaration the deceased has deposed that except accused No.1, he was not knowing as to who had assaulted him but in the same breath he has stated that he was assaulted by lathi by accused No.3 and accused No.2. However, his version is not corroborated by medical evidence. [Para 7] [353-E-G]
2. The dispute between the parties arose on account of entrance of cattle and causing damage to the crops, as well as use of way in which deceased and PW-1 sustained injuries. Taking overall view of the matter, the High Court has acquitted accused Nos.2 to 9. Insofar as accused No.1 is concerned, his overt act is fully corroborated by the medical evidence, as well as the dying declaration (Ex.P/4). Though, PW-1 sustained injuries caused by hard and blunt object but according to his version, he was assaulted by all the appellants, whereas he sustained only four injuries and no injury was sustained by him by fire arm or sharp edged weapon. Therefore, it would be difficult to fix the liability for causing injuries to this witness by the respondents. [Para 8] [353-G-H; 354-A-B]
3. Insofar as the deceased is concerned, he suffered gunshot injury and entry wound was on back of his left thigh. In view of the medical evidence, it would be easy to infer that if accused No.1 was having intention to commit murder of the deceased and used fire arm for that purpose, the injury could have been caused on upper limb, above waist of the deceased. Thus, though the accused No.1 was not having intention to commit murder of the deceased but the act was to cause bodily injury which was likely to cause death. Therefore, the High Court found that he would be responsible for commission of culpable homicide not amounting to murder punishable under Section 304 (Part I) of IPC. The High Court after scanning the entire evidence also held that the respondents were not having an intention to commit murder of the deceased. There is no infirmity in the judgment of the High Court. [Para 9] [354-C-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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