B.S. Chauhan, J. - (1.) This appeal has been preferred by the State of Madhya Pradesh against the judgment and order dated 31.3.2004 passed by the High Court of Madhya Pradesh at Jabalpur (Gwalior Bench) in Criminal Appeal No. 262 of 1997, reversing the judgment and order dated 16.8.1996 passed by the Sessions Court, Guna in Sessions Trial No. 155/1995, convicting the Respondent No. 1 under Section 302 of Indian Penal Code, 1860 (hereinafter called as IPC) and Respondent No. 2 under Section 302 read with Section 120B IPC, and sentencing them to life imprisonment.
(2.) FACTUAL MATRIX: (A) Respondent No. 2 Bhaggo Bai filed an FIR dated 31.1.1995 in Police Station, Ashok Nagar, mentioning her name as Madhav Bai stating that her husband Chatra died after falling during a spell of giddiness at about 11.00 p.m. In respect of the same incident, another complaint was lodged by Munna Lal (PW.2) along with Rannu Bai (PW.1), daughter of deceased Chatra and Bhaggo Bai, aged about 8 years stating that both the Respondents-accused had murdered Chatra. After having a preliminary investigation, the Investigating Officer arrested Respondent No. 2 Bhaggo Bai and lodged the FIR formally on 4.2.1995. (B) After completing the investigation, a charge-sheet was filed against both the accused for committing the murder of Chatra. A large number of witnesses were examined by the prosecution. Both the Respondents-accused examined themselves as defence witnesses alongwith some other witnesses. After concluding the trial, both the Respondents-accused were convicted and sentenced, as mentioned hereinabove, by the Sessions Judge vide judgment and order dated 16.8.1996. (C) Being aggrieved, both the Respondents -accused filed Criminal Appeal No. 262/1997 which has been allowed by the impugned judgment and order and both of them stood acquitted. Hence, this appeal.
(3.) Ms. Vibha Datta Makhija, learned Counsel appearing for the Appellant-State, has submitted that the judgment and order of the High Court is not sustainable in the eyes of law. The High Court has gravely erred in showing unwarranted sympathy towards the accused and dis-believed the prosecution case brushing aside the statement of Rannu Bai (PW.1), merely being a child witness and pointing out that there was contradiction in the medical and ocular evidence regarding the injuries found on the person of Chatra, deceased. The High Court further erred in holding that there was enmity between the accused Bhaggo Bai and Ramesh. At the time of death of Chatra, Ramesh accused was facing trial for committing rape on Bhagoo Bai; thus, question of conspiracy between the said two accused could not arise; several cases were also pending in different courts between Munna Lal (PW.2) and his wife Kusum Bai on one hand, and Chatra and Bhaggo Bai on the other hand. Thus, there was a possibility of false implication of Ramesh accused. Chatra died because of a fall when he went to urinate, as he was suffering from giddiness all the time because he used to take dhatura and had become a Lunatic. Chatra used to eat soil etc. Rannu Bai (PW.1) though a child, was able to understand the questions put to her and her duty to speak the truth. She could not have any enmity with either of the accused. The rape case filed by deceased Chatra and Bhaggo Bai against accused Ramesh remained pending for a long time and Ramesh got acquitted after the death of Chatra, deceased. The Trial Court after appreciating the documentary evidence on record came to the conclusion that accused Ramesh committed rape upon Bhaggo Bai during the period between 24.6.1991 to 17.9.1994. In fact, they were having illicit relationship for a period of more than 3 years. The High Court brushed aside the said finding without giving any cogent reason. The allegation that Rannu Bai (PW.1) had been tutored by Munna Lal (PW.2) could not be spelled out from her statement. The neighbours had come at the place of occurrence after being called by Rannu Bai (PW.1) and Munna Lal (PW.2). In spite of the fact that some of them had declared hostile, part of their evidence still could be relied upon in support of the prosecution case. Therefore, the judgment and order of the High Court, impugned is liable to be set aside, and appeal deserves to be allowed.;