Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 1092 (MP)

Purushottam v. State of M. P.

2002-12-13

P.C.AGRAWAL, S.S.JHA

body2002
JUDGMENT Jha, J. 1. Appellant has filed this appeal against his conviction for an offence under section 302 IPC and sentence of life imprisonment. 2. Learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubt eyewitnesses namely PW 3 Sultan Singh and PW 4 Ram Devi are wholly unreliable. They have not seen the incident. There is lot of improvement in their deposition. Weapon which was not assigned in the FIR and in the statements before the Police has been assigned in the deposition to fill up the lacuna of injuries mentioned in the medical report. Counsel for the appellant submitted that from the evidence of eye witnesses coupled with medical evidence, it is clearly established that these eye witnesses have not seen the incident and ocular evidence is not corroborated by the medical evidence. It was further submitted by the counsel for the appellant that the appellant had suffered from polio in one leg and he could not run fast as has been deposed by the eye witnesses. He, therefore, submitted that the appellant be acquitted. 3. Counsel for the respondent supported the judgment and submitted that the appellant has rightly been convicted. 4. We have heard learned counsel for the parties and have given our anxious consideration to the rival contentions. 5. According to the prosecution, appellant Purushottam had given number of 'ballam' blows to deceased Girdhari. According to prosecution on 26.12.1985 at about 11.00 O' clock in the morning, Girdhari who was grazing cattle in the forest was assaulted and beaten by the appellant. It is alleged that appellant had given 'ballam' blows and thereafter, ran away towards forest treating the deceased to be dead. 18 injuries on the body of the deceased were seen by the complainant Sultan. 6. PW 3 Sultansingh has deposed that his brother Girdhari had gone to graze goats. He heard the shouts of Girdhari that he is being murdered. He ran towards the place of incident. His mother Ramdevi also came with the food on the spot. The) had seen that Girdhari was thrown on the ground and appellant was assalting him with 'ballam'. As they reached near the spot, accused ran away. In para 4, he has further deposed that injured Girdhari was taken to the police station and FIR wm lodged. Thereafter he was taken to hospital at Sumawali. The) had seen that Girdhari was thrown on the ground and appellant was assalting him with 'ballam'. As they reached near the spot, accused ran away. In para 4, he has further deposed that injured Girdhari was taken to the police station and FIR wm lodged. Thereafter he was taken to hospital at Sumawali. He was taken for medical treatment to Joura where he died. In para 13 of the deposition, this witness has deposed that the injured was lying near the 'merh' (boundary) of the agricultural field of Gyasi. When he reached there injured was breathing. He enquired from him as to who has assaulted him, he did not reply. Then his mother reached the spot and she also enquired who caused injuries to him, but the injured did not utter any word. He left his mother at the spot and went to the village to bring a cot. In para 17 he has deposed that near the boundary of the agricultural field of Gyasi there is a forest and if somebody runs in the forest, he cannot be seen, therefore, it was not possible for him to catch the appellant. He has not even chased the appellant. He has further deposed that he informed his mother that Purushottam has assaulted the deceased. He has further improved the case in para 18 of the cross-examination that Purushottam was armed with one 'bakiya' and 'ballam'. But this fact is not mentioned in the FIR. 7. PW 4 Ramdevi also claims to have seen the incident. She has deposed that she reached near Girdhari and asked Purushottam why he is assaulting her son. On her asking Purushottam ran away towards the forest armed with spear and 'bakiya'. In para 5 this withness has deposed that Girdhari has left the house without taking food around 7.00 in the morning. He was armed with lathi whereas PW 3 Sultansingh has deposed that Girdhari was armed with 'ballam'. She admitted that in her statcment Ex. D-2 there is no mention that accused was armed with 'bakiya'. In para 9 she has deposed that when Sultan has chased Purushottam he rushed at him with 'ballam' therefore. Sultan returned back. However, this fact is not deposed by Sultan (PW 3). She admitted that in her statcment Ex. D-2 there is no mention that accused was armed with 'bakiya'. In para 9 she has deposed that when Sultan has chased Purushottam he rushed at him with 'ballam' therefore. Sultan returned back. However, this fact is not deposed by Sultan (PW 3). In para l0 she has deposed that when she reached the spot, at that time Girdhari was dead, she kept his body in her lap and sat at the spot till 5.00 in the evening. When villagers reached the spot, report was lodged. 8. Feransingh (PW 5) has not supported the case of prosecution and he has deposed that he has not seen the incident. 9. PW 1 Dr. S.K. Gupta has deposed that on 26.12.1985 injured Girdhari was brought to the hospital. He examined him around 5.20 in the evening. He found 14 incised wounds, two stab wounds and two superficial incised wounds on the body of Girdhari. He has categorically deposed that injuries No. 1,2 and 3 can be caused by heavy hard and sharp weapon and injuries No.4 to 18 can be caused by sharp piercing weapon. He has found following injuries on the body of the injured vide Ex.P-2 : (i) Incised wound size 6 cm x 3 cm x bone deep in midline of skull in middle parietal region from anterior to posterior, blood clot is present. (ii) Incised wound 4 cm x 2 cm bone deep posterior to injury No. 1 placed obliquely down and lateral, blood clot is present. (iii) Incised wound 6 cm x 3 cm bone deep on left side of occipital region placed ant. to post., blood clot is present. (iv) Stab wound size 1 cm x 1.5 cm x 1 cm on left side of abdomen just below the coastal margin in mid clavicular line. Omentum is coming out 3.15 cm. in length. (v) Stab wound size 1.5 cm x 1 cm on left side of abdomen below and left to injury No.(iv) through which the omentum is seen size 2-112 cm in length. (vi) Incised wound size 1 cm x .5 cm x .25 cm on left side of injury No. (v) blood clot is present. (vii) Incised wound size 1 cm x .5 cm x .5 cm on left lateral side of chest at level of 6th rib in post axillary line, blood clot is present. (vi) Incised wound size 1 cm x .5 cm x .25 cm on left side of injury No. (v) blood clot is present. (vii) Incised wound size 1 cm x .5 cm x .5 cm on left lateral side of chest at level of 6th rib in post axillary line, blood clot is present. (viii) Incised wound size 1 cm x .5 cm x .25 cm five in number situated on back lower part in middle in between, lumber vertebra from 2nd to 4th an area of 6 cm x 5 cm, blood clot is present. (ix) Incised wound size 2 cm x 1 cm on left lateral aspect of abdomen just above the superior border of hip bone, blood clot is present. (x) Incised wound .5 cm x .5 cm superficial three in number on left thigh lateral aspect upper part. (xi) Incised wound size 2 cm x 1 cm on lateral aspect of left thigh in middle, blood clot is present. (xii) Incised wound size 1 cm x .5 cm x .5 cm on anterior aspect of left thigh in middle part, blood clot is present. (xiii) Incised wound size 1 cm x 1 cm x 1 cm on lateral aspect of left arm in middle, blood clot is present. (xiv) Incised wound size 1 cm x 1 cm x .5 cm on left elbow on lateral aspect, blood clot is present. (xv) Incised wound size 1 cm x .5 cm x 1.5 cm on left forearm on dorsal aspect of hand, blood clot is present. (xvi) Superficial incised wound size 1 cm x 1 cm on anterior aspect of left elbow, blood clot is present. (xvii) Incised wound superficial size 1 cm x 1 cm on medial aspect upper part of left arm. (xviii) Incised wound size 1 cm x .5 cm x .25 cm on left side of chest anterior aspect at level of 6th inter coastal space in mid clavicular line. 9. PW 2 Dr. G.C. Saxena has performed the post mortem and found as many as 18 injuries on the body of the deceased. On internal examination of the skull, he found the temporal bone, left parietal bone and left occipital bone were broken having multiple fractures and turned into pieces. Cause of death was injuries caused on the head. 9. PW 2 Dr. G.C. Saxena has performed the post mortem and found as many as 18 injuries on the body of the deceased. On internal examination of the skull, he found the temporal bone, left parietal bone and left occipital bone were broken having multiple fractures and turned into pieces. Cause of death was injuries caused on the head. In para 6 this witness is confronted with article 'D' weapon of offence seized from the appellant. He denied that such injuries can be caused by the said weapon. 10. From the deposition of PW 1 Dr. S.K. Gupta and PW 2 Dr. G.C. Saxena it is clear that the injuries can be caused by heavy sharp weapon. Such weapon was not assigned to the appellant in the FIR as well as in the statements before police. During trial, prosecution has improved its version. PW 3 Sultansingh has deposed in his examination-in-chief has also mentioned that the appellant was armed with a 'ballam'. PW 4 Ramdevi has added 'bakiya' with the appellant. These witnesses have deposed that the appellant though is physically handicapped by one leg can run very fast. 11. Considering entire evidence on record, and the judgment of the trial Cour1 it is clear that no weapon which caused the fatal injury is seized from the appellant. Witnesses have not assigned head injuries to have been caused by the appellant. Head injuries caused to the deceased cannot be caused by 'ballam'. From the evidence of PW 3 Sultansingh and PW 4 Ramdevi in their cross-examination, it transpires tha1 they have not seen the incident. Since there is a dispute with the appellant who is a relation of the witnesses for share in the property and was residing with the complainant party, it cannot be ruled out that he may be falsely implicated. PW 3 Sultansingh has deposed that appellant was armed with 'ballam' and he had assaulted Girdhari by 'ballam', but in pan 18 of his cross-examination he deposed that the accused was armed with 'bakiya' and this fact is also added by Ramdevi (PW 4) in her examination-in-chief. 12. In para 14 of the judgment, trial Court has found that two eyewitnesses PW 3 Sultansingh and PW 4 Ramdevi are not reliable witnesses and in para 15 trial Court has found that appellant was having three arms is not proved. 12. In para 14 of the judgment, trial Court has found that two eyewitnesses PW 3 Sultansingh and PW 4 Ramdevi are not reliable witnesses and in para 15 trial Court has found that appellant was having three arms is not proved. Seized 'ballam ' was not of the appellant and PW 3 Sultansingh has admitted in para 23 of his cross-examination that he has wrongly stated that Girdhari was having 'ballam' with him. Therefore, the story of PW 3 Sultansingh that 'ballam' was snatched from Girdhari is also incorrect. Trial Court has found that the evidence, of PW 3 Sultansingh is not at all reliable and finding is recorded that he has not seen appellant assaulting the deceased. Having disbelieved the witness, trial Court has committed an error in relying upon the evidence of PW 4 Ramdevi. It disbelieved Ramdevi (PW 4) in part and held that since there was a dispute regarding partition of the property, therefore, there is every likelihood that the offence might have been committed by the appellant. Therefore, in para 17 of the judgment merely on presumption, appellant has been held guilty. 13. We have gone through the evidence on record and we find that the evidence of PW 3 Sultansingh and PW 4 Ramdevi is not reliable. They have not seen the incident. As such, the prosecution has failed to prove its case beyond reasonable doubt. In the result, appeal succeeds and is allowed. Conviction of the appellant under section 302 IPC is set aside and is acquitted of the charges. Bail bond and sureties of the appellant are discharged.