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1992 DIGILAW 622 (MP)

STATE OF MADHYA PRADESH v. TIKHIYA

1992-10-13

A.R.TIWARI, V.D.GYANI

body1992
A. R. TIWARI, J. ( 1 ) THIS appeal by State is directed against the judgment rendered by Sessions Judge, Jhabua in S. T. No. 43/90 on 2/5/1990, thereby acquitting the accused/respondent of the charge under 5. 302 IPC. ( 2 ) BRIEFLY stated the facts at the trial were that on 28/10/1990, there was some programme of Garba in village Kahuda at about 7-8 P. M. After taking meals the deceased Tersingh and his daughter Kalibai (P. W. 1) had gone there to see Garba. The respondent came there armed with bow and arrows and falia. At that time, the deceased Tersingh was watching the Garba. The respondent came near him and uttered that today he would kill or be killed. On this, the deceased said that Such thinks should not be said on the day of festival and invited him to sit and smoke Bin. For that purpose, he (Tersingh) gave him bin. The respondent again started hurling filthy abuses and became prepared to fight. On this, Tersingh started going towards but of Rewla. The respondent immediately rushed towards the deceased and dealt falia hitting him on the head. Kalibai (P. W. 1) tried to intervene to save her father but in the meantime, the respondent again indicted 4-5 blows by means of alia with which he was armed. Kalibai, thereafter, fell on the body of her father lying injured and cried for help. On hearing the cries, Badlibai (P. W. 2) the wife of deceased and another daughter Pagalibai (P. W. 3) came to the scene of occurrence. Certain persons of the village also collected. Deceased Tersingh was found bleeding. Soon thereafter, he succumbed to the injuries on the spot. The report in the shape of Dehatinalshi Exh. P/i was lodged by P. W. 1 Kalibai at Police Station Ranadir, District Jhabua. Formal case was registered at Crime No. 163/89. The spot map Exp. P/2 was prepared. The post mortem was conducted by Dr. N. K. Pathan (P. W. 5 ). The report is Exh. P/14. After completion of investigation, the challan was filed. A charge under section 302 IPC was framed to which the accused-pleaded not guilty. On trial, he was acquitted of the charge. ( 3 ) WE have heard Shri A. S. Kutumbala, learned GA for the appellant/state and Shri A. N. Pradhan learned counsel for the respondent. ( 4 ) SHRI. P/14. After completion of investigation, the challan was filed. A charge under section 302 IPC was framed to which the accused-pleaded not guilty. On trial, he was acquitted of the charge. ( 3 ) WE have heard Shri A. S. Kutumbala, learned GA for the appellant/state and Shri A. N. Pradhan learned counsel for the respondent. ( 4 ) SHRI. A. S. Kutumbala has submitted that conviction is permissible even on the sale testimony and as urged by him, P. W, 1 is- Such a witness whose testimony was sufficient to record conviction. More so, when she was corroborated by the FIR lodged by her. He, therefore, submitted that the trial Court has committed error in recording acquittal. Shri Pradhan on the other hand, submitted that the judgment is based on the appreciation of evidence in its true perspective, and therefore, there was no valid and sufficient ground to interfere with the order of acquittal. ( 5 ) THE point for determination is whether the appeal deserve to be allowed. ( 6 ) THERE can be no quarrel with the proposition that the conviction can be recorded on the basis of the sole testimony of witness but the testimony of Such witness must be found fully reliable. In fact, there is no question of seeking corroboration if Such a witness is found to be wholly reliable. The witness can be put into three categories. i) witness wholly reliable; ii) witness wholly unreliable; iii) witness partly reliable and partly unreliable. There is no question of any corroboration in case the witness is found to be wholly reliable. The trial Court on proper evaluation of evidence found that looking to the conduct of P. W. 1 no implict faith can be placed on the testimony. The acquittal was recorded on the following three grounds. a) Several persons are said to have collected on the scene occurrence but P. W. 1 did not disclose to anyone of them that the respondent was assailant and an author of injuries sustained by the deceased. (Para 14 of the judgment.) b) Even at night she did not disclose the identity of the assailant to Nanji, Heerji and Kalla. (Para 14 of the Judgment.) c) The Investigating officer has not been examined in this case who alone could have thrown light as to why the delay off about 2-2 1/2 hrs. (Para 14 of the judgment.) b) Even at night she did not disclose the identity of the assailant to Nanji, Heerji and Kalla. (Para 14 of the Judgment.) c) The Investigating officer has not been examined in this case who alone could have thrown light as to why the delay off about 2-2 1/2 hrs. was caused in recording the report of P. W. 1 Kalibai. (Para 26 of the judgment.) 5. The trial Court was not inclined to act upon the sale testimony of P. W. 1 Kalibai, the daughter of the deceased in the face of her conduct of not disclosing the identity of the assailant to anyone either on the spot or at night in the village. 6. In Shivaji Dayanu Patil v. The State of Maharashtra1, it is held that A wife who has seen an assailant giving fatal blows with a stick to her husband, would name the assailant to all present and to the police at an earliest opportunity. There is nothing in the evidence to justify this highly unnatural and improbable conduct of Parvatibai. The Statement recorded by Police head constable is entirely different from what she stated at the trial. The prosecution has, thus, not been able to prove its case against the appellant beyond reasonable doubt. ( 7 ) THE conduct of P. W. 1 is, thus, found to be highly unnatural and improbable and as Such the trial Court was fully justified in refusing to act on sole testimony of Such, a witness on serious charge of murder. ( 8 ) THE reasonings adopted by the trial Court cannot be charactcrised as perverse. The conclusion reached, is well supported from the evidence adduced in this case. We see no reason to differ and to interfere. The view taken by the trial Court, is plausible one and is not liable to be disposed or demolished. ( 9 ) AFTER all, this is an appeal against acquittal. The jurisdiction available to this Court in Such appeals is quite limited. We may quote Totasingh and Ors. We see no reason to differ and to interfere. The view taken by the trial Court, is plausible one and is not liable to be disposed or demolished. ( 9 ) AFTER all, this is an appeal against acquittal. The jurisdiction available to this Court in Such appeals is quite limited. We may quote Totasingh and Ors. v. State of Punjab wherein it has been held that The mere fact that the Appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is Such which could not have been possibly arrived by any Court action reasonably and judiciously and is therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of evidence is erroneous. ( 10 ) KEEPING aforesaid criteria in mind, we find that the conclusion reached by the trial Court is on firm foundation and the judgment is not amenable to interference. ( 11 ) IN the result, this appeal is liable to be dismissed and is accordingly dismissed. Bail bond of the accused/respondent stands cancelled. Appeal dismissed. .