Full Judgment Text
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CASE NO.:
Appeal (crl.) 1026 of 2002
PETITIONER:
Smt.Bimla Devi
RESPONDENT:
State of Haryana
DATE OF JUDGMENT: 10/04/2003
BENCH:
N.Santosh Hegde & B.P.Singh.
JUDGMENT:
J U D G M E N T
SANTOSH HEGDE,J.
The appellant herein, alongwith five others, was charged for
offences punishable under Sections 302, 325 and 323 read with
Section 34 IPC before the Additional Sessions Judge, Rewari for
having committed the murder of one Jaipal Singh on 10th of
August, 1992. The learned Sessions Judge after the trial came to
the conclusion held that one of the accused by named Ashok was
not guilty of the offence charged against him and acquitted him
while he convicted the other accused including the appellant herein
for offences punishable under Section 302 read with Section 34
IPC and directed them to undergo imprisonment for life and to pay
a find of Rs.2000/- each. He further convicted the said accused
under Section 325 read with Section 34 IPC and sentenced them to
undergo RI for a period of one year and to pay a fine of Rs.500/-
each. He also convicted the said accused for an offence punishable
under Section 323 read with Section 34 IPC and sentenced them to
undergo RI for a period of three months each. He directed all the
substantive sentences to run concurrently. The convicted accused
preferred an appeal before the High Court of Punjab and Haryana
at Chandigarh which appeal came to be dismissed consequent to
which this appeal was preferred. This Court while entertaining the
appeal granted leave to appeal to this appellant only while
dismissing the SLP of other accused. Therefore, the present appeal
before us is confined to the case of appellant Bimla Devi only.
The case of the prosecution in brief is that in an incident
which took place on 10th August, 992 at about 7 p.m. this appellant
along with other named accused assaulted the deceased in which
this appellant alleged to have assaulted the deceased with a Bankri
causing an injury on the left ear portion of Jaipal. The other
accused persons assaulted the deceased with various weapons on
other parts of the body, consequent to which the said Jaipal died.
According to the prosecution, the incident in question was
witnessed by Abhey Singh (PW-1) who is the brother of the
deceased, Shish Pal (PW-2) the uncle of the deceased and one
Ramji Lal who is not examined. The FIR in this case was lodged
by PW-1 Abhey Singh at about 5 a.m. on 11th August, 1992. It is
based on this complaint of PW-1 after investigation charge-sheeted
the accused persons including the appellant. As stated above, the
trial court while acquitting the accused Ashok, convicted all others
including the appellant which conviction and sentence has been
upheld by the High Court.
Shri P.N.Lekhi, learned senior counsel appearing for the
appellant contended that so far as this appellant is concerned the
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prosecution has miserably failed to prove its charge and the courts
below have seriously erred in accepting the unsubstantial evidence
of PWs.1 and 2 to convict the appellant. He pointed out that in the
FIR that is lodged by PW-1 the eye-witness there is no overt act
attributed to this appellant at all except saying all the accused
persons have killed Jaipal, while the said FIR mentioned clearly
about the other accused’s overt act. He also contended in the report
of the inquest proceedings which was held at the earliest point of
time at Col.12 which describes the weapons used in the assault no
injury attributable to Bankri was noticed and though the Bankri
was recovered on 13.8.1992 and sent to the chemical examiner no
stains of blood were found on such Bankri. He also pointed out
that the medical evidence if read as a whole it is seen that no injury
that could be caused by the use of Bankri with its blunt side could
be noticed on the body of the deceased. In such circumstances, the
prosecution has failed to establish its case against the appellant and
the courts below have mechanically proceeded to record conviction
of the appellant.
Shri V.K.Garg, learned counsel appearing for the respondent
contended that even though in the FIR no specific overt act has
been attributed to the appellant, her presence is clearly noted with
the Bankri in her hand. He submitted that the evidence of PWs.1
and 2 clearly establishes that this appellant did assault the deceased
with the blunt side of the Bankri on the left ear. It is his contention
that merely because the inquest report does not mention the injury
that could be caused by Bankri and that the Bankri recovered did
not contain any blood stains that does not ipso facto negative the
prosecution case against the appellant. He also submitted that the
doctor who had seen the Bankri had opined that one of the injuries
caused to the appellant could have been caused by the use of
Bankri.
We notice that the incident in question has taken place on
10.8.1992 at 7 p.m. a complaint in regard to which was filed in the
early morning of 11.8.1992 by an injured eye-witness who in the
said complaint while attributing specific overt act to the various
accused stated "in the meantime Manti, wife of Har Chand armed
with Kulhari and Bimla Devi wife of Kalu Ram, armed with
Bankri also came there". In the later part of the complaint, it is
mentioned that "Ashok, Rajinder, Hoshiar, Ram Kumar Singh,
Manti Devi and Bimla Devi have killed my brother Jaipal." There
is no other statement of fact in the said complaint to the effect that
the appellant Bimla Devi though carried a Bankri at the time when
she came to the place of incident she did use that Bankri or cause
any overt act which would involve her in the crime. In this
background, we should notice that the complaint in regard to the
attack on Jaipal involves six members of one family giving rise to
an argument by the appellant that the complainant has tried to rope
in all the grown up members of one family because of a rivalry
arising out of caste faction. In the evidence of PW-1, it is stated
while describing the attack by other accused persons Bimla Devi
gave a Bankri blow on the left ear portion of Jaipal. But in the
cross-examination it is brought out that no such statement has been
made to the police when his statement was recorded which
omission was marked as Ex.PA. While PW-2 in his examination-
in-chief stated that Bimla Devi gave a Bankri blow on left ear of
Jaipal, in the cross-examination, it is brought out on record that
what is stated in the police statement as per Ext.PA is that Bimla
Devi had hit Jaipal from the wrong side of Bankri meaning thereby
that the appellant did not use the sharp side of the weapon but used
the blunt side of the weapon when she assaulted. If we believe the
oral evidence, then it shows according to the two eye-witnesses the
appellant assaulted the deceased on the left ear lobe with the blunt
side of the Bankri. If we compare this oral evidence with medical
evidence, we find there is no injury on the left ear which could be
attributed to a blunt weapon. On the contrary, there is an incised
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wound on the left ear lobe. Therefore, the medical evidence and
the oral evidence do not tally. Even in regard to the doctors
opinion as to the weapons that could have caused the injuries on
the deceased, there are considerable contradictions. In the first
instance, when the weapons were sent for seeking medical opinion,
the doctor opined that all the injuries on the deceased could be
caused by weapons like Jaily, Lathi and Kulhari and he even
identified the injury on the ear as an injury that could be attributed
to a Kulhari. But when the Bankri was sent to him for his opinion,
he opined that a lacerated injury found on the head of the deceased
could be caused by the said Bankri. But according to the eye-
witnesses, the injury caused on the deceased by the appellant was
not on the head but on the left ear. Therefore, this part of the
prosecuton evidence cannot be accepted.
Apart from the above discrepancy in the oral and medical
evidence, we also notice from the inquest proceedings the use of a
Bankri has not been mentioned while other weapons like Lathi,
Jaily and Kulhari have been mentioned. Then it is to be noticed
that even though the Bankri was recovered within four days after
the incident and sent for chemical examination the report of the
Chemical Examiner shows the absence of any blood stain. This
coupled with the fact that even in the FIR PW-1 the eye-witness
has not attributed any overt act to the appellant further creates very
serious doubt in the case of the prosecution as to the involvement
of the appellant. Having considered the entire material that is
produced by the prosecution against the appellant, we are of the
view that the prosecution has failed to prove its case against the
appellant Bimla Devi. Therefore, the courts below, in our opinion,
have erred in convicting the appellant.
For the reasons stated above, this appeal succeeds and the
same is allowed.
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