BHANWAR SAI Vs. STATE OF M.P.

JUDGEMENT

(1.) The appellant stands convicted under section 302, I.P.C. to life imprisonment by judgment dated 18.2.1998 in Sessions Trial No. 157 of 1996 ordered by the Sessions Judge, Raigarh.

(2.) Merg (Exhibit P/10) was lodged by P.W. 4, Sorko Ram, father of the deceased Fulmati Bai on 7.6.1996 against the appellant who was the husband of the deceased stating that the previous evening at about 7:30 pm the deceased was sitting in the open area of the house. The appellant came and slapped her two, three times and after she fell down assaulted her on the head with a Tangi' leading to death. Formal FIR (Exhibit P-11) was registered on the basis of the same. Inquest Report was marked Exhibit P-7. The postmortem (Exhibit P-l) was conducted by Dr. P. Sudhar (P.W. 1) who opined that death was due to head injury affecting brain, homicidal in nature. There was also fracture of the shaft of the left humorous bone. On the confession of the appellant, the Tangi' alleged to have been used in the assault was recovered from a pond ana sent for Forensic Examination which confirmed presence of blood on it.

(3.) Learned Counsel for the appellant submitted that P.W. 4, Sorko Ram named other co-villagers in die FIR who accompanied him to lodge the Merg but none of them except P.W. 5, Sukhsai have been examined and who also turned hostile. Referring to the spot map (Exhibit P-9), it was submitted that there were several nouses adjacent to that of the witness and their occupants were also named, but none of them have been examined as witnesses. The alleged sole eyewitness (P.W. 4) Sorko Ram was related to the deceased and was therefore an interested witness. He cannot be therefore considered reliable for conviction on a solitary evidence. Another witness named by P.W. 4, Master was also not examined. No explanation has been furnished by the prosecution why independent witnesses were not examined. P.W. 2, Tankadhar has not stated that the memorandum of the appellant (Exhibit P-4) was recorded in his presence but has only stated having signed it. The possibility of a forced confession cannot be ruled out. The alleged recovery of Tangi' (Exhibit P-5) from a pond having 15-16 inches of water with the blood stains intact is highly improbable and suspicious material. In this context non-examination of the Investigating Officer becomes crucial. The Investigating Officer has not been examined and no reason has been furnished for his non-examination. It was next submitted that the appellant never intended to cause death of the deceased evident from the single assault made by him. If he intended to cause death, he would have surely repeated the assault. The solitary assault was not by the sharp edge of the Tangi' as there was no incised wound. The assault was by the blunt side of the Tangi' causing lacerated wound which clearly is suggestive of the fact that the appellant only intended to teach a lesson to the deceased because of her conduct. P.W. 4, Sorko Ram has acknowledged that it was dark at the time of assault and that he was unable to see in the dark. The possibility that someone else assaulted the deceased and he named the appellant on mere suspicion cannot be ruled out and the benefit of doubt must be given to the appellant. Alternatively, the conviction under section 302, I.P.C. was not justified and ought to have been at best under section 304 Part II, I.P.C.