CHHOTE BHAIYA ALIAS GIRJA SHANKER Vs. STATE

JUDGEMENT

(1.) THIS appeal is preferred by Chhote Bhaiya alias Girja Shanker, aged about 22 years, resident of Barha, Tahsil Gadarwara, against his conviction by the Additional Sessions Judge, Narsinghpur, under Section 325, Indian Penal Code, and his sentence of four years' rigorous imprisonment and a fine of Rs. 400/ -. The learned Judge has also ordered that if fine is paid it should go to Rewaram, the father of Buddha (deceased) by way of compensation.

(2.) THE case for the prosecution is that on the morning of 24 -9 -1957, Buddha, the deceased, had taken the cattle of certain villagers at Barha for grazing. Some cattle in the meanwhile strayed in the lands with juar crop belonging to the Appellant Chhote Bhaiya and damaged the crop. On learning about it, the Appellant got furious and chased Bhura and Punnoo. Buddha, the deceased, was on the river at that time. The Appellant gave a merciless beating to Buddha, the deceased, with a lathi. Thereafter, the deceased Buddha went home, a distance of a couple of furlongs, and on 26 -9 -1957, at about 2 p.m., died in his village. His brother, Bishan (P. W. 1), accompanied by Chhidamilal Kotwar (P. W. 9), lodged a report on 27 -9 -1957. Somehow or other, it appears that autopsy could not be performed before 10 a.m. on 28 -9 -1957. Dr. B.L. Sharma, A.M.O., (P. W. 15) examined the dead body and found many bruises. The doctor characterized them as "diffused bruises marks". Such "diffused bruises marks" were found over scalp, all over, and over face and front; over neck in front and over both sides (right and left side) of neck; over chest in front upto the region of epigastrium; on both sides of chest; over right shoulder joint and upto right scapular region on back; over left shoulder joint on upper part; and over right thigh on upper and outer side. Tissues underneath bruises were all deeply congested. Scalp was bruised and congested. Skull and vertebra were healthy. Membrances were found congested at places. Brain was pale and under the stage of decomposition. Seventh and eighth ribs on left side were fractured. Right lung was swollen and congested. Left lung was also swollen and congested. Seventh and eighth rib son left side of chest were fractured at the region of middle clavicular line on left side. The line of fractures was vertical.

(3.) AS regards the merits of the case, I can only say that the prosecution has failed to produce impartial and unimpeachable evidence in this case. The story was that Haria was an eye -witness. But he has not been produced at all. Then there were two other eye -witnesses viz., Smt. Khargo and Harchand. They have also not been produced in the Sessions Court. No explanation is forthcoming for their non -production. So, whatever remains of the prosecution evidence is the evidence of three witnesses: Bishan (P. W. 1), Bhura (P. W. 2) and Smt. Bhagwati (P. W. 3). No reliance has been placed by the learned Additional Sessions Judge on the evidence of Bisban (P. W. 1) who is the brother of the deceased Buddha and who states that he saw the incident that the Appellant beat his brother mercilessly on the river. But then, it is strange, he did not come to his brother's help; nor did he tell it to anybody in the village or anything about the incident. Bhura (P. W. 2) is aged 12 years. He is a child witness and is a nephew of Bhagwati (P. W. 3). He admitted in the Sessions Court that when he was going to the committing Magistrate's Court for his examination the Thanedar was with him and that he had asked him to say such and such things in the Court. His deposition in the Court of the committing Magistrate has been exhibited in the Sessions Court as Ex. D -2. In para. 10 of his deposition he admitted that the Thanedar had asked him to say that the Appellant had given a beating to the deceased in his presence. No reliance can be placed on such evidence. He has admitted in the Sessions Court that his aunt, Smt. Bhagwati (P. W. 3), was also present when the Thanedar had asked him to give his deposition in a particular manner. Smt. Bhagwati (P. W. 3) admits that her husband Tikaram and the Appellant had litigation four or five years back, because it was the Appellant who had beaten her husband and in that case she had deposed against the Appellant. Even the Kotwar, Chhidamilal (P. W. 9) admitted that there was enmity between Smt. Bhagwati's husband Tikaram and the Appellant, that there was litigation between the two and that the prosecution witness, Smt. Bhagwati, had deposed against the Appellant. It is, therefore, difficult to place any reliance on Bhura (P. W. 2) and Smt. Bhagwati (P. W. 3). Considering the delay in lodging the First Information Report and the non -production of unimpeachable evidence in the case, in my opinion, no conviction could be sustained on the flimsy and weak evidence adduced in this case. The Kotwar admits that before he went with Bishan to lodge the report he did not know anything of the incident, though daily he used to do his Gusht duty in the village. For reasons stated above I allow the appeal, set aside the conviction and the sentence passed on the Appellant and order that he be acquitted in this case. Fine, if paid, will be refunded to him. Appeal allowed.