RAMKUMAR Vs. STATE OF M P

JUDGEMENT

(1.) This appeal has been filed by appellant Ramkumar being aggrieved by the judgment dated 28.2.04 passed by ASJ, Seonda, Datia, in S.T.No.174/00, by which appellant Ramkumar has been convicted under Section 307 of IPC and sentenced to five years rigorous imprisonment along with fine of Rs.200/-.

(2.) According to prosecution story, on 25.7.00 at about 8 am Ramnath was planting a Jamun tree at his land, at that time, accused Shivdayal, Ramkumar, Seetaram and Sarman came there and objected to it and abused him and stated that why he is planting tree in their land. He replied that you have closed my way and he is planting the three at his land. Thereafter, Ramkumar with intention to kill him assaulted by axe on his head which caused bleeding injury. Accused Seetaram, Sarman and Shivdayal assaulted by lathis on his legs. On his cries, her daughter Janki, brother Itwari, Rajjan Dangi and other persons came there, then accused persons ran away. Thereafter, police reached on the spot and Dehati Nalishi (Ex.P/12) was recorded by Shri B.P.Kachhware (PW-11) at about 9.30 a.m. on the same day. On the basis of which FIR (Ex.P/21) at Crime No.85/2000 was registered under Sections 307, 323 and 294/34 of IPC. After investigation, Challan was filed against accused Shivdayal, Sarman, Seetaram and Ramkumar. After trial, Shivdayal, Sarman and Seetaram have been acquitted by the trial Court and appellant Ramkumar has been convicted as mentioned above. Hence, this appeal.

(3.) It has been argued by the appellant's counsel that Ramnath (PW-8) was a deaf and dumb witness and as per his statement, he was unable to speak after the incident and he was unable to lodge the FIR. In cross-examination, he has admitted that FIR was not lodged by him, but by his brother. The Court has also noted the fact that Ramnath (PW-8) was a deaf and dumb witness, hence, his evidence was recorded with the help of Girish Chandra Tiwari, teacher in the Government Deaf and Dumb School, Gwalior, but no oath was administered to Shri Girish Chandra Tiwari and the signs and gestures used by him for his statement were not taken on record. When the witness was deaf, how could he understand the questions. From the statement of Ramnath, it also reveals that he was a literate person and was educated upto 5 th class, hence, his statement could have been recorded by writing, but no finding was given to this fact that he was not able to write. Hence, his statement was recorded with the help of other person Shri Girish Chandra Tiwari. The statement of Ramnath (PW-8) does not inspire confidence for the conviction of the appellant because he has stated that appellant Ramkumar inflicted two axe blows on his head, while only one incised wound was found on his head. He has also deposed that his forearm and elbow were fractured at two places, but this fact is not supported by medical evidence and no such injury was found on the elbow and forearm of Ramnath. The other witnesses are the interested witnesses and they are not reliable. Janki Devi (PW-2) is the daughter of Ramnath, Savitri (PW-3) is the wife of Ramnath, Babulal (PW-4) is the father of Ramnath and Itwari (PW-6) and Asharam (PW-7) are the real brothers of Ramnath. No independent witness was examined by the prosecution in this case and the witnesses who are said to be the independent witnesses have turned hostile and have not supported the prosecution story. An axe was seized on the information of Ramkumar for which memo Ex.P/6 was prepared and in furtherance of it after seizure of the axe, seizure memo Ex.P/8 was prepared, but it was not proved by the prosecution evidence and the axe was not produced at the time of evidence. Hence, the seizure of the axe was not legally proved. Therefore, the appeal should be allowed.