State of Madhya Pradesh vs Ishwarde Jatav, Prem Bai and Mukesh Jatav

The judgment of absolviter dated 14/5/1998 passed in Sessions Trial No. 150 of 1995 (State of Madhya Pradesh Vs. Bachnuram and others) by the First Additional Sessions Judge, Shivpuri, District Shivpuri, acquitting the respondents / accused including the deceased respondent, Bachnuram from the charges u/s 302, in alternate 302 read with 34 of the IPC, has been made pivot in this appeal filed by the State of Madhya Pradesh u/s 378(3) of the Code of Criminal Procedure, 1973, after obtaining leave to file appeal. During the pendency of this appeal, the respondent, Bachnuram had died, hence his name has been deleted from the cause title, as the appeal stood abated against him.

The prosecution case, in brief, may be narrated as under:

(i) That, the complainant, Vimla Jatav W/o Netram (P.W.3) reached to the Police Chowki, Purani, Shivpuri on 28/05/1995 at 07.30 a.m., and lodged a report to the effect that on 28/05/95 at 7.00 a.m., Niraj son of the accused/appellant, Mukesh gave a slap to her daughter, namely; Manju. On this, she (Vimla Jatav) along with her husband, Netram went to complain of the matter to Mukesh and his wife, Prem Bai then, Mukesh and his wife started showering abuses. On her restrain, Mukesh took her husband, Netram by dragging inside his room wherein accused, Bachnuram Jatav and his wife Ishwarde were there. After closing the doors of the room, the accused, Mukesh caused injury by knife near his right eye. Another knife injury was caused on his nose. Blood started oozing out from the injuries. Bachnuram gave a danda blow on his waist. On this, Vimla shrieked and ran to rescue Netram at that time, the accused Ishwarde bitten her (Vimla) in the right hand. By that time, on hearing shriek, Prem Narayan (P.W.6) and Mehmood Ali Shah (P.W.8) reached there, then Bachnuram and his wife, Ishwarde ran away. She (Vimla) witnessed the whole incident through the wire-mesh window. On the basis of the aforesaid, police registered the offence at Crime No. 041/95 under Sections 307, 342, 506-B, 304, 324 of IPC and transmitted it to the Police Station Shivpuri whereat FIR at Crime No. 255/95 was registered. The injured, Netram was sent to for medical examination to the District Hospital, Shivpuri. Dr. R.B. Sharma, Medical Officer District Hospital, Shivpuri (P.W.2) examined the injured, Netram and vide report, Exhibit P/9 found 4 injuries on his person, looking to his condition he was referred to the J.A. Group of Hospitals, Gwalior. On 29.5.1995 during treatment he died at J.A. Group of Hospitals, Gwalior, therefore, the offence was altered u/s 302 of IPC.

(ii) That, the investigating agency reached at the spot, prepared spot map (Exhibit P/15), seized necessary articles from the place of occurrence. Investigating Officer also recorded the statements of the witnesses who were acquainted with the facts of the offence. Inquest (Exhibit P/19) on the dead body of the deceased, Netram was prepared and sent it for post mortem. On 29/05/95 Dr. V.K. Diwan (P.W.12), conducted the post mortem on the body of the deceased at J.A. Group of Hospitals, Gwalior. Vide post mortem report (Exhibit P/21) opined that cause of death was due to injury to brain and haemorrhage, and

(iii) That, during investigation, the accused persons have been arrested. On completion of the investigation, a charge sheet was filed against all the four accused persons before the committal Court, which on its turn, committed the case to the Court of Sessions from where it was received by the Trial Court for the trial.

The learned Trial Judge on the basis of the material placed on record framed charges as mentioned hereinabove against all the accused persons including the deceased, respondent. The accused persons denied the charges and claimed to be tried. The defence of all the accused persons is of false implication and the same defence set forth in their statements recorded u/s 313 of the Code of Criminal Procedure, 1973.

To bring home the charge, the prosecution has examined as many as 13 witnesses and placed Exhibits P/1 to P/21, the documents on record. The accused persons have examined Komal D.W.1 in their defence.

The learned Trial Judge on the basis of evidence placed on record came to hold that charges have not been proved against the respondents as a result of which acquitted them including the deceased, respondent.

In this manner, this appeal has been preferred by the appellant/State assailing the judgment of acquittal passed by the learned Trial Court after obtaining leave to file appeal.

Legality and propriety of the impugned judgment has been challenged by the learned Panel Lawyer on the ground of misappreciation of the evidence on record. Learned Panel Lawyer, Ku. Sudha Shrivastava submits that looking to the evidence on record, it is proved that the accused persons have caused the death of Netram, which has also been corroborated by the post mortem report. Learned Panel Lawyer has further argued that the learned Trial Court erred in acquitting the respondents, hence, this appeal be allowed and the respondents be convicted for the offence.

On the other hand, learned counsel appearing on behalf of the respondents has supported the impugned judgment and findings arrived at by the learned Trial Court and submitted that there was no evidence against the respondents on record. According to learned counsel, this appeal is having no merit and the same be dismissed.

In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record.

In the present case, the prosecution has examined as many as 5 eye-witnesses; namely, Vimla Bai (P.W.3), Dara Singh (P.W.4), Narayani (P.W.5), Prem (P.W.6) and Mehmood Ali Shah (P.W.8). Needless to say that Vimla Bai (P.W.3) is the wife, Narayani (P.W.5) is the mother and Prem (P.W.6) is the uncle of the deceased, Netram. Since, they are members of one family and thickly related either by blood or by relation to the deceased, Netram, therefore, their evidence is required to be closely scrutinized with great care and precaution. The Apex Court in the case of Waman and Others Vs. State of Maharashtra, has explained that the relation is not a factor to affect the credibility of the witness and the courts have to scrutinize their evidence meticulously with a little care.

Vimla Bai (P.W.3) who is the author of FIR has stated that at the relevant point of time, son of the accused, Mukesh beaten her daughter then she alongwith her husband, Netram went to the residence of Mukesh for complaining that his son used to beat her daughter. On this, accused, Mukesh and his wife, Prem Bai, his brother Kailash and his two other younger brothers caught hold of his husband, Netram and took him inside their room. After closing the doors of the room, the accused, Mukesh dealt a knife blow which struck over the eye of her husband. Vimla (P.W.3) further deposed that on her shriek Mehmood Ali Shah (P.W.8) and Prem (P.W.6) reached there and they brought out her husband from the room, then he saw that blood was oozing from the eye of Mukesh. She with the help of other persons took her husband, Netram to the hospital. On reaching police at hospital, she lodged the report (Exhibit P-11). Her husband was examined at hospital and referred to Gwalior. During treatment at Gwalior her husband had died.

On scanning the testimony of Vimla Bai (P.W.3), we find that she deposed in paragraph No. 2 of her cross-examination that Bachnuram and his wife Ishwade had gone to their village Nohari one day prior to the date of the incident and came only when Netram was taken to the hospital from the village Nohari. She has stated nothing against Bachnuram and Ishwade. However, she deposed against the accused, Mukesh, his wife, his brother, Kailash and his two other younger brothers by stating that they took her husband, Netram inside the room and after closing the doors, Mukesh dealt knife blow over his eye. Further, she deposed that she had not gone to the police station, she lodged the report at the hospital and the police got her thumb impression on the report only at the hospital. Thus, her testimony is inconsistent with the case of prosecution. Apart from that, we find omissions and contradictions in the statement of Vimla Bai (P.W.3) in respect of various material facts mentioned in the FIR (Exhibit P/11) and the police statement (Exhibit D/1). It is also not clear from her testimony how she came to know that the accused, Mukesh dealt knife blow over the eye of Netram when the alleged marpeet was committed inside the room after closing the doors where other accused persons were also present there. Thus, the conviction cannot be based only on the aforesaid testimony of Vimla Bai (P.W.3).

The learned Trial Court after appreciating and marshalling the evidence in detail found that Narayani (P.W.5), Prem (P.W.6), Mehmood Ali Shah (P.W.8) & Dara Singh (P.W.4) have not witnessed the incident and they reached after the incident was over.

On close scrutiny of the aforesaid alleged eye witnesses we find that the learned Trial Court did not commit any error in disbelieving them.

On going through the reasonings assigned by the learned Trial Court, we are of the view that the learned Trial Court has rightly arrived at a conclusion that the testimony of Vimla Bai (P.W.3), Dara Singh (P.W.4), Narayani (P.W.5), Prem (P.W.6) and Mehmood Ali Shah (P.W.8) does not inspire confidence.

The learned Trial Court after considering each and every aspect of the matter in the impugned judgment came to hold that the prosecution has utterly failed to prove its case beyond reasonable doubt against the accused person.

We have gone through the judgment passed by the learned Trial Court acquitting the respondents and we find that the learned Trial Court did not commit any error in acquitting the respondents. The learned Panel Lawyer could not point out how and in what manner the judgment of learned Trial Court can be said to be erroneous and perverse.

It is well settled law that, if two views are possible on the same set of evidence, the view taken by the learned Trial Court acquitting the accused should not be lightly brushed aside. In this context, we profitably place reliance on the decision of the Apex Court in the case of Arulvelu and Another Vs. State represented by the Public Prosecutor and Another, . Hence, by this judgment, we hereby extend our stamp of approval to the judgment of acquittal passed by the learned Trial Court. Resultantly, this appeal is found to be devoid of merit and substance, the same is hereby dismissed. The respondents are on bail, their bail bonds are discharged.