Shel Bai And Others vs The State Of Madhya Pradesh

We have heard learned counsel for the parties at length and perused the record.

In the present case, the entire case of the prosecution is based on the testimony of Jetabai (PW-3), who is the eye-witnesses of the incident. She in her deposition before the Court has stated that appellant - Shailbai / Shelbai inflicted injury on the hand of the deceased and the appellant -Lachchhu (now dead) inflicted injury on the head of the deceased by means of stone. The FIR also contains the same version.

To examine the testimony of Jetabai (PW-3), it would be appropriate to consider the statement of Dr. Anil Damor (PW-2), who conducted the autopsy of the deceased and found the following injuries:-Injury No.1 - lacerated wound measuring 4 cm x 1 cm x 1 cm on the left side of the head; and Injury No.2 - lacerated wound measuring 2 cm x 1 cm x 1 cm on the right cheek below the ear.

This witness further opined that right ear of the deceased was cut by 2 cm x 1 cm x 1 cm. During the internal examination of the deceased, he found hematomas on the left and right sides of his head. The right and left chambers of his heart were empty. The deceased had an occipital fracture and his upper five ribs were also broken. The deceased died due to cardiorespiratory arrest due to hemorrhage shock.

As per the statement of Dr. Anil Damor (PW-2), no injury was found on the hand of the deceased as stated by Jetabai (PW-3) in the FIR as well as in the statement before the Court that the present appellant caused injury on the hand of the deceased by means of stone. In view of the opinion of PW-2, benefit of doubt can be given to appellant - Shailbai / Shelbai .

The Division Bench of Rajasthan High Court, while dealing with the similar issue, in the case of Satya Prakash Pathak v/s StateSatya Prakash Pathak v/s State reported in 2005 Supreme (Raj) 12812005 Supreme (Raj) 1281, wherein the evidence of eye witness was contrary to the medical evidence has held as under:-

In view of what has been discussed above while analyzing the evidence of the eyewitnesses individually, it appears that the witnesses have not seen the occurrence. Therefore, on the basis of above alleged eye witnesses finding of guilt recorded against the accused appellant cannot be said to be based on proper appreciation of evidence. It is to be seen further that in the same set of circumstances the other two accused persons namely Smt. Vishnu and accused Prem have been acquitted. After carefully examining the evidence of eyewitnesses, we are of the opinion that they have not given a true version of the incident and it is not safe to rely on their testimony for basing conviction. The initial version of PW . 5 is regarding 12 accused persons in the first information. Then challan was filed against 4 accused persons and additional charge-sheet was filed against one accused Prem. Smt. Vishnu and Prem have been acquitted of the charges framed against them. The evidence of the eyewitnesses as discussedThe evidence of the eyewitnesses as discussed hereinabove is contrary to the medical evidencehereinabove is contrary to the medical evidence and there is variance of serious nature as discussed above in the evidence of PW . 5, 6, 10 and 13 also.

In view of above discussion, we are of the opinion that prosecution has not been able to prove the guilt of the accused appellants by placing on record reliable evidence to hold guilty of the charges levelled against them. The learned trial Court has not properly appreciated the evidence rather misread the evidence, as such the conviction and sentenced recorded against accused appellants deserves to be set aside.''

Even otherwise, there is no investigation by the police as to how the accused entered into the house of the deceased that too in the night when the door was shut. In such circumstances, we are not in agreement with the view taken by the trial Court.

In view of the aforesaid, the impugned judgment of conviction and sentence dated 03.01.2015 passed by the Sessions Court, Jhabua in Sessions Trial No.48/2014 convicting the appellant - Shailbai / Shelbai under Sections 450 & 302/34 of the IPC is hereby set aside extending her the benefit of doubt. She is acquitted from the charges under Sections 450 & 302/34 of the IPC. The appellant be released forthwith, if she is not required in any other case.

The finding of the trial Court regarding disposal of articles is hereby affirmed.

Ex-consequenti, Criminal Appeal stands allowed.

Let the record of the trial Court be sent back along with the copy of this judgment.