State Of M.P vs Wazir Khan & Anr

STATE OF M.P. ... Appellant(s)

Versus

WAZIR KHAN & ANR. ... Respondent(s)

JUDGMENT

Dr. ARIJIT PASAYAT,J.

Heard learned counsel for the appellant-State and learned counsel for

the respondents. The High Court by its impugned judgment directed acquittal of

the respondent who faced trial for alleged commission of offence punishable under

Section 302 read with Section 34 of the Indian Penaal Code, 1860 (in short 'IPC').

The prosecution version as unfolded during trial in a nutshell is as

follows:-

In the night of 3.9.1993 at about 8:45 respondent No. 1 had thrown a

petrol bomb on Saheed Khan (hereinafter referred to as 'deceased') after igniting

the petrol bottle with match stick. According to the prosecution Wairkhan had a

petrol bomb in his hand. Hanif

-2- ignited the petrol bomb with match stick and Wazirkhan threw the said

bottle filled with petrol at Saheed. The bomb burnt instantly which resulted

into the death of deceased by burning. After filing FIR, charges were framed.

Respondents were tried and convicted for the offence. An appeal was filed against

the order of conviction. Respondents submitted before the High Court that nature

of evidence adduced against the respondents is not reliable and prosecution story

itself demonstrates that the story is not reliable. Respondents invited attention to

the evidence of PW-2, Ashok. This witness had deposed that Wazirkhan was

holding bomb in his hand which was ignited by Hanif by match stick and then the

said bomb was thrown on deceased Saheed and Saheed started burning. He came

out of the shop and rushed to inform Abdul Khalil, uncle of Saheed. This witness

in para 6 has deposed that after climbing the stairs, bomb was thrown in the shop.

Similar statement was given by PW3 Sattar Khan that Wazirkhan had thrown the

petrol bomb which hit the head of Saheed and he was burnt. He chased the

accused but he could not catch them. Thereafter he returned back and deceased

was taken by Matador to hospital. Mehboob Khan PW4 had deposed that Hanif

had ignited the bomb by match

-3-

stick and thrown at Saheed. This witness had deposed that burning petrol bomb

fell on the deceased and he was burnt alive. Dr. Vinod Lahiri PW12 had deposed

that deceased was having second and third degree burn injuries. The burns were

dry. The percentage of burn was 90%. He admitted that the injury can be caused if petrol is poured over the body and body is ignited by fire. He further deposed

that if some bottle or bag filled with petrol is thrown at any person and fire ignited

then the person cannot receive the injuries as are received by the deceased. If a

glass bottle filled with petrol is ignited and thrown at the deceased will have

injuries by glass pieces but no injuries by glass pieces were found.

It was noted as follows:-

In the light of evidence of doctor and eye witness it was held that the

prosecution has failed to prove its case beyond reasonable doubt. Case of the

prosecution that the bomb was thrown at the deceased is belied by the medical

evidence and the fact that no injury by glass pieces was found on the body of the

deceased. We hold that the prosecution has failed to prove its case beyond

resonable doubt.

The High Court with reference to the evidence of

-4-

the Doctor found that the scenario as presented is not believable. Accordingly, the

appeal filed by the respondent questioning correctness of their conviction as was

done by learned Additional Sessions Judge-IInd, Gunna was allowed and the

conviction of the respondents was set aside.

Learned counsel for the appellant-State submitted

that the High Court in a very cryptic manner passed the order of acquittal. It has

proceeded on the basis of hypothetical answer given by the Doctor overlooking the

evidence of eye-witnesses. Learned counsel for the respondent supported the judgment of the High Court.

We find substance in the stand of learned counsel for the appellant that

the judgment is very cryptic. But when the materials on record and the

discrepancies in evidence as pointed out by accused persons are taken into

account, the inevitable conclusion is that the High Court's ultimate conclusion

directing acquittal is in order. It is not only the opinion of the Doctor which

affects credibility of the prosecution version. There are several other factors which

were highlighted by the trial court- i.e. the delayed presentation of the FIR and the

delayed despatch to the Elaka Magistrate.

-5-

In that view of the matter, we do not consider this to be a fit case for

consideration. Hence the appeal fail and is dismissed accordingly.

...................J. (Dr. ARIJIT PASAYAT)

....................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, October 16, 2008.