Babbu Kol vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant is convicted for the offence punishable u/s 326 of IPC and sentenced for 4 years rigorous imprisonment with fine of Rs. 200/-. In default of payment of fine, 15 days additional sentence was also directed. The prosecution''s case, in short, is that, on 24.11.2010, at about 3 p.m., the victim Mati Bai (P.W. 3) was coming back from the river near the village Mertola. The appellant met her in the way and asked for the money. The victim denied that she had no amount. Thereafter, the appellant went with the victim to her house. At 4 p.m. when the victim reached near the hut behind FCI godown then, the appellant came with an axe and assaulted the victim on her right jaw. Due to that assault, she sustained a fracture. The witness Ramkali etc. came to the spot and they took the victim to the hospital at Beohari and thereafter, an intimation was given to the concerned police station.

The applicant abjured his guilt. He did not take any specific plea in the case and no defence evidence was adduced.

After considering the prosecution''s evidence, the learned Additional Sessions Judge convicted and sentenced the appellant as mentioned above.

I have heard the learned counsel for the parties.

In the present case, Dr. Piyush Nigam (P.W. 6) has proved his medico legal examination report, Ex. P/10. He found that there were two incised wounds caused on the jaw of the victim Mati Bai and the broken mandible bone was visible from the wound and therefore, the injury was caused by sharp cutting weapon and it was grave. There is no reason to disbelieve the information given by Dr. Piyush Mishra (P.W. 6) and therefore, it is established that the victim Mati Bai sustained a grave injury caused by a sharp cutting weapon.

The witness Ramkali (P.W. 1), Bhadde (P.W. 2), Mati Bai (P.W. 3) and Deendayal (P.W. 4) are the eye witnesses and the witnesses who reached to the spot soon after the incident. Out of them, Mati Bai was the victim. All of them have turned hostile. They did not support the prosecution''s story. In the cross-examination, various witnesses have accepted that the victim Mati Bai had told them that she fell on a stone and therefore, she sustained the injury. However, in the cross-examination done by the prosecutor, the victim Mati Bai has accepted that the appellant assaulted her by a small axe and therefore, she sustained injuries on her jaw but, again in the cross-examination done by the defence counsel, she has accepted that she sustained the injury due to fall. It is true that the injury as shown by Dr. Piyush Mishra (P.W. 6) could not be received due to fall on a stone because two injuries were found on her jaw, which were clean cut. However, when none of the witnesses supported the prosecution''s case and the victim herself has accepted that she sustained the injuries due to fall on the stone and she turned hostile then, there is a great contradiction visible in the statement given by the victim Mati Bai. On one side, she alleged against the applicant that he assaulted her and on the other hand, she had accepted that the injury was caused due to fall. Under such circumstances, if there are two versions of the victim then, a doubt is created and the version which is in favour of the accused, was to be accepted. Under such circumstances, there is no substantial evidence to show that the appellant was the person, who assaulted the victim Mati Bai by an axe and caused grave injury.

The learned Additional Sessions Judge convicted the appellant on the basis of the evidence given by the victim Mati Bai when she was cross-examined by the prosecutor but, the portion of the evidence of the victim Mati Bai was not considered in which she did not allege against the appellant. Under such doubtful position, the appellant could not be convicted for the offence punishable u/s 326 of IPC. It is possible that the victim Mati Bai turned hostile because she had received some compensation etc. However, looking to her statement and a doubtful position, the appellant could not be convicted. His conviction as well as the sentence directed by the trial Court cannot be maintained.

On the basis of the aforesaid discussion, the appeal filed by the appellant Babbu Kol is hereby allowed. The conviction as well as the sentence directed against him for the offence punishable u/s 326 of IPC by the trial Court is hereby set aside. The appellant is acquitted from the charge of offence punishable u/s 326 of IPC.

The appellant is in jail and therefore, office is directed to arrange for issuance of a release warrant immediately, so that the appellant may be released from the jail, without any delay. A copy of the order be sent to the trial Court alongwith its record for information and compliance.