Shiv and another vs State of M.P.

This appeal has been filed by the appellants being aggrieved by the judgment dated 21.07.2004 passed by the Additional Sessions Judge,

Multai District Betul in S.T. No. 28/2004 by which the trial court has held the appellants guilty of an offence punishable under section 302 of the

Indian Penal Code and sentenced them to undergo life imprisonment.

The prosecution case, in brief, is that on 05.11.2003 at about 3:00 in the afternoon when the deceased Ramiya Bai along with her daughter

Mamta alias Babli, PW-1 were harvesting Kutki in their field, they were attacked by the appellants and one Chandrasu who was a juvenile at the

time of commission of the offence, with a Ballam (spear), Gupti (knife) and a stick respectively. According to the prosecution, when Mamta alias

Babli PW-1 tried to intervene, the appellants threatened her on account of which she ran away from the spot and shouted for help, hearing which

Jal Singh and Shyamrao came to the spot whereafter the appellants ran away after threatening Mamta alias Babli PW-1.

As many as 18 injuries were inflicted upon the deceased Ramiya Bai who succumbed to her injuries on the spot itself specifically on account of

injury no. 18 on the left side of the back which actually cut through her stomach and her entrails were protruding from the same.

The trial court has recorded a finding that the appellants were guilty of an offence punishable under section 302 of the I.P.C. by placing reliance

upon the testimony of the sole eye witness PW-1 Mamta alias Babli.

It is an undisputed fact that the husband of the deceased Sukku and the second eye witness Jal Singh have not been examined by the

prosecution. On a perusal of the statement of PW-1 Mamta alias Babli, it is apparent that she has clearly stated in paragraph 6 (wrongly mentioned

as paragraph 5) in her deposition that when she reached the spot after the appellants had run away, she gave water to her mother whereafter her

mother told her the names of the accused/appellants. She has clarified that had her mother not told her the names of the appellants she would not

have come to know the names of the assailants. In paragraph 10 of her deposition she has stated that she had not informed the police nor did she

lodge any report with the police on account of the fact that the Kotwar Anandrao PW-3 had told her that he had already informed the police about

the incident which fact has clearly been denied by PW-3 Anand Rao. On the contrary, the Investigating Officer, PW-12 Asha Choudhary has

asserted that the police recorded the Dehati Nalishi on the statement and report given to them by PW-1 Mamta alias Babli.

When confronted with the case diary statement, PW-1 Mamta alias Babli has stated that she had informed the police about the fact that the

names of the appellants had been told to her by her mother but this fact does not find mention in the case diary statement. In paragraph 8 of her

statement PW-1 Mamta alias Babli has also clarified that from the Tekri, where she had run away to escape from the appellants, the spot where

the incident took place, was not visible.

From the aforesaid scrutiny of the statement of PW-1 Mamta alias Babli it is apparent that there are several omissions and contradictions in her

statement. The trial court has rightly analyzed the law and held that the sole testimony of a single eye witness can form the basis of recording a

finding of conviction, however, the said law is subject to the fact that the statement of the sole eye witness is consistent, truthful, reliable and of

sterling quality.

In the instant case as the statement of the sole eye witness is full of omissions and contradictions, we are of the considered opinion that the same

cannot be and could not have been made the sole basis of recording a finding of conviction against the appellants.

In view of the aforesaid facts and circumstances of the case, the appeal filed by the appellants is allowed. The impugned judgment dated

21.07.2004 passed by the Additional District Judge, Multai, District Betual in S.T. No. 28/2004 is set aside and the appellants are acquitted of the

offence punishable under section 302 of the I.P.C. It is stated that the appellant no. 1 Shiv is on bail. He shall stand discharged of his bail bonds

and shall be set at liberty forthwith, if not required in connection with any other case. The appellant no. 2 Chiraunji is said to be in jail. He shall be

set at liberty forthwith, if not required in connection with any other case.

The appeal is accordingly allowed.