1983 Supreme(MP) 54

G. G. Sohani and R. K. Vijaywargiya, JJ.
State of M. P. v. Bhaiyalal
Cr. A. No. 376 of 1980 (I) ; Decided on 18-2-1983.

Headnote:(1) Criminal P. C., 1973 -- S. 378 -- appeal against acquittal -- finding of trial Court perverse -- interference is permissible.

        (2) Penal Code, 1860 -- Ss. 302 and 326 -- blow of dharia caused fracture -- injury not proved to be sufficient or likely to cause death -- offence fails under S. 326.

        (3) Penal Code. 1860 -- Ss. 34 and 147 -- identification doubtful -- no part taken in commission of offence -- person accompanying accused cannot be held liable.

        The trial Court found that the prosecution had failed to establish that the fatal injury to Chhotibai was caused by any of the accused or that the accused had formed an unlawful assembly. This being an appeal against acquittal, this Court would not interfere with the finding of the trial Court if the view taken by the trial Court is a reasonable one. However, having given our anxious consideration to the matter we have come to the conclusion that the finding of the trial Court that the injury to deceased was not caused by accused Bhaiyalal is perverse.

        Held : The trial Court has proceeded to consider the evidence of P. W. 2, Parwatibai, daughter of a deceased and who had lodged the first information Report, as a chance withess because she was residing in another house. It is difficult to appreciate as to how this witness could be considered to be a chance withess. Her presence at the house of her mother was quite natural. P. W. 2, Parwatibal deposed that on the date of the incident, she was sitting by the side of her mother when accused Bhaiyalal, armed with a dharia came inside the house, dragged Chhotibai and gave her a blow on her head with a dharia. According to her she hart lodged the report at the police station but her mother had affixed her thumb mark on the report. It is true that she has made some confusion in this behalf because P.W. 10, Gopalsingh, Assistant Sub-Inspector who recorded the report, deposed that P.W. 2, Parwatibai had affixed her thumb mark on the first information report. Even if we ignore the testimony of P. W. 2 Parwatihai, there is no reason to discard the testimony of P. W. 3, Gauribai, another daughter of deceased Chhotibai, who deposed that when s he was sitting by the side of her mother at the time of the incident, accused Bhaiyalal forcibly entered the house and gave a blow on the head of her mother with a dharia She deposed that there was light inside the house though it was dark out side. To the same effect is the testimony of P. W. 4, Nirmalabai daughter-in-law of the deceased. She deposed that except accused Bhaiyalal, other accused did not participate in the assault and were standing out side the house. P. W. 8 Kailash, a neighbour of Chhotibai deposed that he was standing on the Orla of his house at the time of the incident when he saw the accused Bhaiyalal and his companions had come in a rickshaw, that accused Bhaiyalal had entered the house of Chhotibai and after dragging her gave a blow with a dharia on her head. The trial Court, however, disbelieved the testimony of the aforesaid four eye witnesses on the ground that they had given different versions about the incident. It is true that there is variation in the testimony of the eye witnesses regarding the exact spot in the house, where the fatal blow was struck by accused Bhaiyalal, but such variation is natural. P. W. 3. Gauribai and P. W. 4. Nirmalabai have both deposed that there was light inside the room, though it was dark outside. The trial Court held that the testimony of P. W. 3, Gauribai and P. W. 4. Nirmalabai in this behalf was inconsistent with the testimony of P. W. 8 Kailash, who deposed that there was an electric bulb at the door of the Kitchen in the house of the deceased, which was glowing at the material time, though it was dark outside in the street. The finding of the trial Court that all the eye witnesses had given different versions about the incident, is, to say the least, perverse. It is true that the relations between the members of the family of the deceased and the accused were strained. But this fact would only necessitate careful scrutiny of the testimony of eye witnesses and would not justify discarding their testimony altogether.

        Thus, the reasons given by the third Court for disbelieving the testimony of the eye witnesses are not sound. From the testimony of these witnesses, it has been established beyond reasonable doubt that accused Bhaiyalal in the company of some persons, came in a rickshaw to the house of deceased Chbotibai; that he got down from the rickshaw and entered the house of Chhotibai with dharia. The blow given by accused Bhaiyalal admittedly resulted in causing a fracture. P. W. 6 Dr Agrawal has, however, not deposed that the injury caused to Chhotibai was likely or sufficient to cause her death. In this state of evidence, accused Bhaiyalal is, therefore, liable to be convicted under section 326 I.P.C.

        As regards the identify of the other accused, in view of the fact that it was dark outside the house of Chhotibai, it would not be safe to act on the testimony of the eye witnesses for holding that they had accompanied accused Bhaiyalal. These accused had also not taken any part in the assault. No ground has been made out for interference with their acquittal. Appeal partly allowed.