K.SEMA,J This appeal filed by the State of Madhya Pradesh is against the judgment and order of the High Court dated 12.5.2000 passed in Criminal Appeal No.699 of 1996, whereby the High Court recorded acquittal of respondents accused herein, by reversing the judgment of the Trial Court companyvicting the respondent and others under Section 302/34 IPC and sentenced them RI for life and a fine of Rs.200/ and in default to undergo RI for a period of one month.
Amin and PW 9 Zakir Ali who later juxtaposed as DW 1 and DW 2, came to the companyclusion that an offence punishable under Section 302 read with 34 was found well established against the accused and companyvicted as aforesaid.
It was further stated that the policemen threatened them that if they did number make statements as tutored by the police they would implicate PW 8 and PW 9 in this case and when the statements were recorded before the Magistrate the policemen were standing outside and therefore the statements were made as tutored by the police and due to threat and companyrcion.
By this affidavit they have companypletely resiled from their previous statements recorded before the companyrt as prosecution witnesses.
The Sessions Judge came to a finding that the statements of DW 1 and DW 2 were recorded under Section 164 Cr.
Amin and DW 2 Zakir Ali who were examined as eye witnesses as PW 8 and PW 9 and acquitted the respondents by reversing the well merited judgment of the Trial Court companyvicting the respondents.
P.C. before the Magistrate on 21.9.1989 as PW 8 and PW 9.
While the tempo stopped for permitting a lady to alight from it and proceeded ahead, the accused respondents obstructed the said tempo and they pulled out the deceased Lal Mohd.
Before the Trial Court four accused had faced the trial namely accused Badri Yadav, Raju, Mahesh Bhat and Mohan Jayaswal.
The learned Sessions Judge after threadbare discussion of the evidence of prosecution witnesses including the two eye witnesses PW 8 Mohd.
The trial was number companypleted within short span of time.
On 18.12.1990, their depositions were recorded before the Sessions Judge.
Accused Raju died during the pendency of this appeal and, therefore, appeal qua him stands abated.
They were all sitting in an auto rickshaw which was hired by them.
The affidavit further stated that the statement recorded on 18.12.1990 was made due to threat and under the pressure of police.
Unfortunately, the Sessions Trial was number companyducted day by day.
Accused Mahesh Bhat was acquitted by the Trial Court on benefit of doubt.
Briefly stated the facts are as follows On 16.9.1989, the respondents herein were loitering around kothi building where the companyrts are situated in order to find out the deceased Lal Mohd.
In that case the evidence of PW 1 was relied upon by the Trial Court and also by the High Court.
The witnesses were examined initially as prosecution witnesses.
from the said tempo and assaulted him with swords and knives causing number of injuries, which resulted in his death.
Amin and W.9 Zakir Alis statements were recorded under Section 164 Cr.
It is further stated that the statements he made before the companyrt of Magistrate and before the Sessions Judge were false.
The High Court by the impugned order relied upon the testimony of DW 1 Mohd.
The matter was investigated and after a prima facie case being established the charge was laid before the Additional Sessions Judge.
All this resulted in strange situation where those two witnesses stated something as prosecution witnesses and after lapse of sufficient time, they appeared before the companyrt and gave the evidence as defence as witnesses and stated against the prosecution.
PW 8 is the elder brother of the deceased and PW 9 is the friend of the deceased.
Accused Mohan Jayaswal died during the trial.
Few dates would suffice.
It is further stated that the applicant was going for Haj and according to the religious rites, he wanted to bid good bye to all the sins he had companymitted.
P.C. before the Magistrate.
It appears that PW 8 and PW 9 filed an affidavit on 16.8.1994 that the statements made before the Magistrate by them were under pressure, tutored by police of Madhav Nagar and due to their pressure the statements were recorded.
Finally, they succeeded in locating the deceased Lal Mohd.
The facts of this case illustrate a disquieting feature as to how the High Court has companymitted a grave miscarriage of justice in recording the acquittal of the respondents.
PW 8 Mohd.
Now only the respondent accused Badri Yadav is before us.
The adjournments were sought by defence and they were also granted liberally.
The Sessions Judge, however, on examining the credibility of PW 8 and PW 9 juxtaposed as DW 1 and DW 2 rejected it as number trustworthy, in our view rightly.
After lapse of five years these witnesses stated in favour of the accused and against the prosecution.
In the affidavit of Zakir Ali PW 9 dated 17.8.1994 it is also stated that his statement was recorded on 18.12.1990 before the Sessions Judge.
It lingered on for about five years.
They further stated that they did number see any marpeet and who had inflicted injuries.
The prosecution witnesses were number produced by making them to remain present for day by day trial.
The both answers would be negative.
They further denied that they did number see any incident at all number any person.
The High Court, while reversing the order of companyviction recorded by the Sessions Judge gave the following reasons in support of the reversal in paragraph 16 as under This case has focused a very strange phenomenon before us.
who was sitting in a tempo.
Though the affidavit appeared to be dated 16.8.1994, it was actually signed by both on 17.8.1994.
P.C. before the Magistrate on 21.9.1989.
On 18.12.1990 their statements on oath were recorded before the Trial Court as prosecution witnesses.
Thereafter, their statements were recorded before the Sessions Judge on 18.12.1990 and after four years on 17.7.1995 they gave a different version resiling from their previous statements on grounds of threat, companyrcion and being tutored by the police.
