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2003 Supreme(SC) 445
2003(3) Supreme 413
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
N. Santosh Hegde & B.P. Singh, JJ.
Smt. Bimla Devi -Appellant
versus
State of Haryana -Respondent
Criminal Appeal No.1026 of 2002
Decided on 10-4-2003
Counsel for the Parties :
For the Appellant : P.N. Lekhi, Sr. Advocate, Lokesh Kumar and M.K. Garg, Advocates.
For the Respondent : V.K. Garg, Vivek Sharma and Ms. Kavita Wadia, Advocates.
IMPORTANT POINT
So far as appellant Bimla Devi is concerned the prosecution has miserably failed to prove its charges against her.
Headnote:Indian Penal Code, 1860-Sections 302, 325, 323 r/w 34-Offences under-Conviction of appellant alongwith four others-Upheld by High Court-Appeal by appellant to Supreme Court-In FIR no overt act attributed to appellant-Medical evidence and oral evidence do not tally-No blood stains on recovered weapon-Roping of appellant due to rivalry arising out of caste fiction not ruled out-Whether prosecution has failed to establish its charges against appellant? (Yes)-Result-Appeal allowed.
Held : 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 set 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. 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. (Para 5)
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. (Paras 6 & 7)
JUDGEMENT
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 fine 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.
2. 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 Abbey 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.
3. Shri P.N. Lekhi, learned senior counsel appearing for the appellant contended that so far as this appellant is concerned the 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.
4. 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
