STATE OF MADHYA PRADESH Vs. BUDHIYA AND

JUDGEMENT

(1.) These are appeals by Special leave by the State of Madhya Pradesh against the judgment and order of the High Court of Madhya Pradesh acquitting the three respondents. The respondent in the first appeal is Budhiya s/o Devram Koli and the respondents in second appeal are Babu and Sukhiya, both sons of Shivram Koli. These respondents along with seven others had been charged for offences under Sections 302 and 324 /w Section 149. Indian Penal Code before the learned Additional Sessions Judge, Barwani. After trial one of them was acquitted and the rest were convicted under Section 302 r/w Section 149, Indian Penal Code. There six were Budhiva. Sukhiva, Babu, Guhai, Sitaram and Akhadiya. Out of these six. Budhiya was sentenced to death while the other five were sentenced to life imprisonment. All nine appealed to the High Court and there was a death reference by the learned Additional Sessions Judge against Budhiya. The cases were heard together and the High Court was pleased to acquit them all. The State Government has come to this Court by special leave against only the three respondents referred to above.

(2.) According to the prosecution the incident out of which the case arose took place at about 5.30 p.m. on 11-2-1968 in the field belonging to one Shiv Sahai about a mile away from Pansemal. Prosecution witnesses belong to the village Bandhara and the ten accused belonged to the adjoining village Harniya. Admittedly, there was enmity between the residents of these two villages and it is alleged that this assault on the villagers of Bandhara was the direct outcome of this enmity. In the course of this assault three persons were injured. They were Ladkia, the deceased, Bathudbai, P. W. 1 and Ter Singh alias Tersiya, P. W. 17. Ladkia was killed on the spot. Bathubai received an injury as a result of being hit with a arrow and Ter Singh was hit by a stone. The prosecution case is that these three injured persons along with some of their relatives had gone that morning to the weekly market of Pansemal. Some Harniya residents had also gone to the market and it appears that there was some quarrel in the market. But on the intervention of the Police no harm was done. Late in the afternoon at about 5.00 p.m. the deceased Ladkia along with his relations including his brothers Lasiya, P. W. 16, Ter Singh P. W. 17, daughter-in-law Gunshibai, P,. W. 18 and Gulabibai, P.W. 19 started returning to their village Bandhra. There are two ways to go to Bandhra, one is a foot track and the other is a care track. They were going by the cart track. About a mile away from Pansemal, when they were in the field of Shiv Sahai, some 20 residents of Harniya armed with deadly weapons made a sudden attack on them. It is alleged that till this party from Bandhara reached the field, these residents of Harniya were lying in wait for them, concealing themselves behind a bandh in that field. They came out of the bandh and the story is that Bathubai, P. W. 1 was shot by an arrow below the adbomen by respondent Babu from a bow which he carried. Another arrow was shot by Babu or somebody else which hit Ladkia. Bathubai ran away with the arrow after removing it from her abdomen but Ladkia could not run. The party ran helter skelter nad in the meantime the assailants closed in upon Ladkia who could not run. Stones were thrown and Ter Sing, P. W. 17 received a stone hit. The principal assailants of Ladkia were the present respondents. Respondent Sukhiya gave the first axe blow on the neck of Ladkia. Respondent Budhiya gave another blow with the Phaliya alias farsa on the neck of Ladkia. Ladkia fell down and, then it is alleged, respondent Babu completely severed his head from the body with his axe and took the head in his hand. The others also assaulted Ladkia. One of them Kisan, who is no longer before us, is supposed to have cut the legs of Ladkia with his axe.

(3.) Bathubai, P. W. 1 ran back to Pansemal which was a mile away. Pansemal is a biggish village having a Police outpost and a sub-treasury. Bathubai went to the Police outpost with the arrow in her hand. It is the prosecution case that the Head Constable who was in charge of the Police outpost was away but there were other Police constables at the outpost. Of these, Chetram, P. W. 8 and Devilal P. w. 9 have given evidence in this case. Bathubai, it is alleged, told them that there was a quarrel between them and the residents of Harniya and that the latter had hit her with an arrow. On hearing this verbal report Police constable Chetram left the Police outpost to go to the Police Station, Khetiya, under which this outpost was functioning. The Police Station is about 7 miles from this outpost. According to Chetram he boarded the bus for khetiya at about 8.00 p.m. and on reaching Pansemal he made his report at about 8. 30 p.m. That report is Ext. P-11.