Barka vs State of M.P.

Feeling aggrieved by judgment and order dated 24.08.2007 passed in Sessions Trial No.78/07 by Special Judge, Barwani, whereby the

learned trial Court has held the appellant guilty for offence punishable under Section 302 of IPC and awarded life imprisonment with fine of

Rs.100/-, the appellant has preferred the present appeal.

The prosecution case in brief is that on 02.02.2006 at about 8.30 a.m. in the morning, deceased Jahadi Bai was alone at her home and was

doing household work, suddenly, cousin of the complainant - Diwan Singh Barela, the appellant-Barka came there with axe in hands. He struck

axe on the head of the deceased twice and once on the left knee. The deceased fell down. Complainant Diwan Singh screamed and reached on

the spot. Seeing him, the appellant ran away from the spot. On hearing his scream, uncle Hardas (P.W.6) reached there. They both tried to take

care of the deceased. Diwan Singh reported the matter at police chowki-Palsud, Distt. Barwani, where Crime No.06/07 was registered and

thereafter Crime No.43/03 under Section 302 of IPC was registered at P.S. Rajpur, Distt. Barwani. After investigation, the police filed

chargesheet. It is alleged by the complainant that due to property dispute the appellant caused the incident.

The accused/appellant was charged, tried, convicted and punished under Section 302 of IPC as stated in para-1 above.

The appellant has preferred the present appeal on the grounds that the judgment and order of the learned trial Court is contrary to law and the

facts of the case. The findings of the learned trial Court neither legal nor proper nor correct. The learned trial Court has committed error in

believing the prosecution witnesses and discarding the version of the defense. It has drawn unwarranted inference and did not consider material

omissions and contradiction in the statements of the prosecution witnesses. Therefore, it is prayed that the judgement and order be set aside and

the appellant be acquitted.

Learned public prosecutor has supported the judgment and order of the trial Court. The prosecution has opposed the appeal on the ground that

eyewitnesses have seen the appellant committing the offence soon after the incident, he was arrested by the police and weapon used in the crime

i.e. axe was recovered from his possession, therefore, the offence is proved against the appellant.

We have considered rival contentions of both the parties and have gone through the record.

On the date, time and place of the incident, deceased -Jahadi bai was died due to injury caused on the head and her death was homicidal, this

fact has not been disputed by the accused, therefore, we are not discussing the evidence produced by the prosecution in this regard in detail and

we upheld the findings of the learned trial Court in this regard.

Before the trial Court, the prosecution has examined Diwan Singh (P.W.1) and Bhagdiya (P.W.2) as eyewitnesses. After stating in their

examination-in-cheif that they had seen the incident, in cross-examinations, both the witnesses have admitted that they have not seen the appellant

inflicting injury to the deceased. Their statement regarding their presence on the spot are contradictory. Diwan Singh (P.W.1) has not stated that

Bhagdiya (P.W.2) was present on the spot at the time of the incident. Similar is the statement of Bhagdiya (P.W.2) regarding presence of Diwan

Singh. Another witness Hardas (P.W.6) become hostile and he had not supported the prosecution case. Maniya (P.W.5) has stated that Bhagdiya

had told him that the appellant has killed the deceased by axe but this is only hearsay evidence. Presence of Bhagdiya on the scene of the crime

itself is not beyond doubt, therefore, the statement of this witness also cannot be relied upon.

Though the axe is seized from possession of the appellant but nothing is to show that this axe was used in the incident by the accused as no FSL

report is produced by the prosecution, therefore, without indulging any analysis of the evidence regarding seizure of the axe, we do not find that this

evidence can be used for determining guilt of the appellant.

Considering the totality of the facts and evidence, in our view, the evidence relied upon by the prosecution is not convincing and is not sufficient

to hold the accused/appellant guilty of the offence charged against him. The evidence adduced by the prosecution falls short of reliability and unsafe

to base conviction. The prosecution has failed to establish the guilt of the accused beyond reasonable doubt and certainly benefit of doubt is to be

given to the accused. Therefore, the appeal is allowed. The judgment and order passed by the learned trial Court is set-aside. The appellant is

acquitted from the charge under Section 302 IPC. He be set at liberty immediately, if not required in any other case.

The order of the learned trial Court regarding disposal of the property is hereby confirmed.