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2004 DIGILAW 772 (MP)

Dhamma v. State of M. P.

2004-09-16

A.K.GOHIL, S.S.JHA

body2004
JUDGMENT This appeal is filed against conviction of appellants Dhamma and Fatia for an offence under section 302 Indian Penal Code and they are sentenced to life imprisonment. Fatia died after filing of appeal. His name has been deleted from the array of appellants. Therefore, appeal of Dhamma is being considered. Prosecution case, in brief, is as under: That, on the date of incident, appellant Dhamma called deceased Sabharam to his house regarding settlement of engagement of their children. It is stated that on the date of incident i.e. 30.10.1988 in the night, deceased and all the accused consumed liquor together and thereafter all the accused had assaulted deceased Sabharam who succumbed to the injuries and died. On hearing the shout of Sabharam, Fauja Ahivaran, Mahipal Singh, Shimbhu, Babu, Narvada, Kamla, Sundri and Chhonga rushed to the spot and they saw that all the accused are beating Sabharam by lathi. Sabharam had fallen on the ground and when he was taken to Hospital, he was declared dead and First Information Report was lodged. Postmortem of deceased Sabharam was performed by Dr. LA. Qureshi (PW 18). Dr. Qureshi has found two injuries on the body of deceased. Postmortem report is Ex. P-31. He has found following injuries: (i) Haematoma 4" x 2-1/2" on the left temporal region extending to mastoid: (ii) Abrasion of 1-1/2" x 1" on the left side of the back: On internal examination, cause of death is due to head injury. PW 18 Dr. Qureshi has deposed that the injuries were caused by hard and blunt object and the injury was dangerous to life. Cause of death was coma due to head injury and excessive internal bleeding. PW 1 Fauja, who is brother of deceased has deposed in his deposition that Dhamma has called Sabharam and Sabharam accompanied Dhamma. After one hour or so, he heard the shout of Sabharam and on hearing the shout, he alongwith Shimbhu, Babu, Chhonga and Sundri rushed towards the spot and saw that Dhamma has given lathi blow to Sabharam near his ears and Fatia had given another lathi blow on the neck of deceased Sabharam. He has further deposed that thereafter, all other accused started beating Sabharam and he suffered injuries in his knees. He has further deposed that thereafter, all other accused started beating Sabharam and he suffered injuries in his knees. However, this witness has further deposed in para four that on account of darkness, he could not see the act of each accused in causing injury on the knees or finger of deceased. But in para 16 of the deposition, he admitted that he has made statement before the Police Ex. P-2 and report Ex. P-l that Dhamma has assaulted Sabharam near his ear and Fatia has assaulted the deceased in the neck but he admitted that this fact is not mentioned in the police statement Ex. D-2 as well as in the first information report Ex. P-l. PW 2 Shimbhu has deposed that after Sabharam has accompanied Dhamma, he heard the shout of Sabharam then he intervened. Dhamma has given lathi blow on his right hand and Dhamma has also assaulted Sundri. In para 5 of his deposition he has deposed that Dhamma has assaulted Sabharam near his left ear but in the cross-examination, he admitted that in his police statement Ex. D-2 he has not mentioned that· Dhamma has assaulted the deceased on the left ear. He has also admitted that due to darkness, he was unable to see the place of assault on the deceased. Similarly, Kamla widow of deceased has deposed that Dhamma has assaulted her husband in the neck. She admitted that deceased was under intoxication and was drunk. However, in para 8 of the deposition, she has deposed that in Police Statement Ex. D-3, she has not stated that Dhamma has assaulted deceased hear his left ear. PW 4 Sunder Bai has deposed that after hearing the shout of Sabharam, she rushed towards the spot followed by Fauza, Shimbhu, Jiwanlal, Chhonga, Mahipal, Ahivaran and Kanha. When she rushed the spot, she found Sabharam was lying dead on the spot and thereafter, Fauza brought a cart and carried deceased to the Hospital. All other accused were standing there armed with lathi. Thus, from the statement of this witness, it is apparent that all the eye-witnesses reached spot after the incident. This witness has admitted in para 4 of her deposition that on account of dark night, it was not possible to name the person who has assaulted the deceased. In para 4, she has also admitted that she has not given said statement before police Ex. This witness has admitted in para 4 of her deposition that on account of dark night, it was not possible to name the person who has assaulted the deceased. In para 4, she has also admitted that she has not given said statement before police Ex. P-4 regarding assault near the ears of deceased. PW 5 Chhonga has not supported the case of prosecution. After considering arguments of the parties, it is found that only two injuries were found on the body of deceased. Fatal injury is near the left ear but there is no cogent evidence on record to determine that the said blow was given by appellant Dhamma. There are material contradictions in the deposition of the witnesses. PW 4 has deposed that all the witnesses reached spot after the incident, therefore, from this evidence on record, it will not be safe to maintain conviction of appellant Dhamma. Appellant Dhamma is entitled to benefit of doubt as prosecution has failed to prove its case beyond reasonable doubt against him. The evidence on record is not sufficient to maintain conviction. In the result, conviction and sentence of appellant Dhamma under section 302 Indian Penal Code is set-aside and he is acquitted of the charge. Bail bonds and sureties of appellant Dhamma are discharged. Appeal succeeds and is allowed.