STATE OF M.P.versusWAZIR KHAN & ANR.

                                      [2008] 15 S.C.R. 297


      ~                                 STATE OF M.P.                             A
                                               V.
                                     WAZIR KHAN & ANR.
--
 '
                              (Criminal Appeal No. 1510 of 2004)

                                      OCTOBER 16, 2008
                                                                                  B
                      [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
                                     SHARMA, JJ.]
      •·
     .J
                      Penal Code, 1860 - ss. 302 r/w 34 - Acquittal by High
                  Court - Challenge to - Held: Not sustainable, in vieW: of the   c
                  discrepancies in evidence - Credibility of the prosecution
                  version was affected by the opinion of Doctor as also several
                  other factors such as delayed presentation of FIR and delayed
              •   despatch to the Elaka Magistrate .
                                                                                  D
                      According to the prosecution, a petrol bomb was
          #       thrown at the deceased by the accused-Respo.ndent.
                  Respondent was convicted by the Trial Court unde(s.302
                  r/w s.34 IPC. High Court set as,ide the conviction of
                  Respondent holding that the prosecution case was belied
                  by the medical evidence and that t~e scenario presented         E
                  by the prosecution was not believable.

                      In appeal to this Court, the conviction of Respondent
                  was challenged on the ground that the High Court passed
                  the order of acquittal in. a very cryptic manner and            F
                  proceeded on basis of the hypothetical answer given by
                  the Doctor overlooking the evidence of the eye witnesses.

                      Dismissing the appeal, the Court

                      HELD: 1. There is substance in the stand of the             G
                  appellant that the judgment of the High Court is very
      Jr
                  cryptic. But when fhe materials on record and the
                  discrepancies in evidence as pointed out by accused

                                               297                                H
    298        SUPREME COURT REPORTS                [2008] 15 ~.C.R.


A   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
8   highlighted by the trial court- i.e. the delayed presentation
    of the FIR ·and the delayed despatch to the Elaka
    Magistrate. [Para 6] [300-E, Fl

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1510 of 2004.
c
        ·From the final Judgment and Order dated 29.11.2003 of
    the High Court of Judicature of Madhya Pradesh Bench at
    Gwalior in Criminal Appeal No. 71 of 1995.

          Siddhartha Dave, Jentiben AO and Vibha Datta Makhija
D
    for the Appellant.
                                                                         -\
          Jai Prakash Pandey for the Respondents.                         i


          The Judgment of the Court was delivered by
E
         DR. ARIJIT PASA VAT, J. 1. 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

F
    punishable under Section 302 read with Section 34 of the              ..
    Indian Penal Code, 1860 (in short 'IPC').

        2. The prosecution version as unfolded during tria·1 in .a
    nutshell is as follows:-

G        In the night of 3.9.199~ at about 8:45 respondent No. 1
    had thrown a petrol bomb on Saheed Khan (hereinafter
    referred to as 'deceased') after igniting ~he petrol bottle with
    match stick. Aocording to the prosecution Wairkhan tiad a            ~

    petrol _bomb in. his hand. Hanifignited the petrol bomb with
    match stick and Wazirkhan threw the said bottie filled with·petrol
H
              STATE OF M.P. v. WAZIR KHAN & ANR.
                    [DR. ARIJIT PASAYAT, J.]

     at $aheed. The bomb burnt instantly which resulted into the A
     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 B
     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          c
     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
                                                                           0
     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
     stick and thrown at Saheed. This witness had deposed that
     burning petrol bomb fell on the deceased and he was burnt E
     alive. Dr. Vi nod Lahiri PW12 had deposed that deceased was
     having second and third degree burn injuries. The burns were
     dry. The percentage of b1,..1rn was 90%. He admitted that the
                              '                             .
     injury can be caused if petrol is poured over the bodv and body
     is ignited by fire. He further deposed that if some bottle or bag F
                                                                         '



     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 arid thrown
     at the deceased will have injuries by glass pieces but no injuries
     by glass pieces were found.                                           G

         3. It was noted as fo!iows:-

          In the light of evidence of doctor and eye .witness it was
     held that the prosecution has failed to prove its case beyond
                                                                          H
    300        SUPREME COURT REPORTS               [2008) 15 S.C.R.

                                                                        /
                                                                            ....
A 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.
B
      4. The High Court with reference to the evidence of 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
  Additionai Sessions Judge-llnd, Gunna was allowed and the
C conviction of the respondents was set aside.

          5. 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
D given by the Doctor overlooking the evidence of eye-witnesses.
  Learned counsel for the respondent supported the judgment of
  the High Court.

        6. We find substance in the stand of learned counsel for
  the appellant that the judgment is very cryptic. But when the
E 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.
F 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.

        7. In that view of the matter, we do not consider1 this to be
G a fit case for consideration. Hence the appeal fail and is·
  dismissed accordingly.

    B.B.B.                                      Appeal dismissed.