STATE OF M. P. Vs. LAAKHAN ALIAS LAKHAN

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court, Gwalior Bench directing acquittal of the respondent who faced trial along with another named Kalkai who was acquitted by learned IVth Additional Sessions Judge, Bhind. The respondent was, however, found guilty of offence punishable under Section 302 read with Section 34 Indian Penal Code, 1860 (in short 'IPC'). A nine month old child named Gautam was the victim. Prosecution version in a nutshell is as follows:

(2.) A per F.I.R. (Ex. P/12) on 3.3.1993 Sheeladevi (PW 11) with her nine months old son, the deceased, the respondent and one Kalkai had reached Mihona at 7.00 P.M. They proceeded on foot to village Banthari where respondent resided. On the way Kalkai took the child from Sheeladevi (PW-11) and gave him to the respondent. Kalkai told that respondent would keep Sheeladevi (PW-11) with him but not the child. Sheeladevi (PW-11) insisted that child be given back to her. She does not want to live with the respondent. Thereafter, behind Balaji temple in Arhar field Kalkai caught the legs of the deceased child. Respondent throttled his neck till death of the child. Sheeladevi (PW-11) shouted. Ranjit Singh (PW-12) Rajendra Singh (PW-3), Pradumn Singh (PW-7) and Devi Dayal (PW-4) came from the temple. Respondent and Kalkai were burying the deadbody. Seeing these witnesses both the respondent and Kalkai filed way. Sheeladevi (PW-11) rushed to police station Mihona and lodged FIR (Ex. P/12) within 1.5 hours. Investigation was undertaken.

(3.) After investigation charge sheet was filed. Charges were framed. Since the accused persons pleaded innocence, trial was held. The trial court relied on the evidence of the informant. Two other witnesses were examined to prove the complexity of the accused persons. They resiled from the statement made during investigation. The trial court held version of PW 1, the informant, to be cogent and credible and recorded conviction so far as the respondent is concerned. In appeal, the High Court found that the evidence of PW 1 was not fully reliable and there was a great difference as regards the time of occurrence. PW 11 stated that the occurrence took place between 2 to 3 A.M; while the prosecution version was that the same was around 7.00 P.M. The High Court concluded that even an illiterate rustic woman can differentiate between 7.00 P.M. in the evening and 2 to 3 A.M. in the morning. Additionally, it was held that the accused was not caught and was later on arrested. Accordingly acquittal was directed.