GANGOORAM Vs. STATE OF M.P.

JUDGEMENT

(1.) THE deceased Deoraj died of injury on his head resulting in fracture of skull is not under challenge. That his body was thrown on the Rly. track, from where it was discovered next morning is also not in dispute. Under the circumstances, the question requiring consideration of this Court is whether the appellants are responsible for his death? As noticed earlier, decision of the learned Judge is based on evidence of Manvabai, which is corroborated by seizure of bloodstained earth from the house of the appellants. As regards seizure of bloodstained earth, the report of Chemical Examiner (Ex. P/20) does establish that it was stained with blood; However, there is no evidence to indicate that it was human blood. Under the circumstances, this blood -stained earth would not be enough to provide corroboration. Manvabai (P.W. 5) is the widow of deceased Deoraj and has deposed on oath that the two appellants are her brothers. There is no explanation as to how the" two appellants could be her brothers, because father's name of the two appellants is given differently. She states that she had gone with her late husband to participate in the marriage of Gangoo's daughter " and hence it may be possible to say that appellant Gangooram is her brother. She deposed on oath that on the date of marriage; there was scuffle between her husband and appellant Heerasingh and after some time, both Gangoo and Heerasingh assaulted her husband. She further deposes that the deceased thereafter came under the influence of some spirit (DE -OT A CHAD GAY A) and, therefore, he was taken out towards Gali by the two appellants and Mahajan and Mansingh. He was, however, not cured and was taken back home. While at home, not only the two appellants, but others started beating her husband. She had named Mahajan, Pusau and Vishambhar alongwith two appellants, as persons assaulting her husband. She, however, changed her version and stated that the two appellants first started beating her husband. All others had surrounded him and were beating. She was not able to state as to what was the weapon used for beating. According to her she wanted to intervene to save her husband, but was threatened' by, Maliajan, Heerasingh an,d Gangooram to keep quiet. Since Heerasingh and Gangoo, had axe with them, she got afraid and did not say anything. After doing mar -pit, her husband was taken away on a bullock -cart. She learnt in the morning that he had died. During her cross -examination, she admits that there were about 150 persons present in the said house during that night and everybody was enjoying the marriage. Dance party had also come and had danced upto 4.00 AM. The house, where the mar -pit had been done, was open and easily accessible to anyone. She was asked as to why she did not tell, to anyone about this incident, she explained because she had been threatened and, therefore, she did not inform anyone. As regards her case diary statement (Ex. D/1), she gave statement A -A at the persuasion of Mahajan and Rati This is the total evidence of this witness. She has deposed about presence of Mahajan (P.W. 1), who does not support her in any manner. As far as beating by the appellants is concerned, according to Mahajan, he was called by appellant Heerasingh to the house of appellant Gangoo and on examination of deceased Deoraj, found him under the influence of some evil spirit (PRET ~ADHA). He, therefore, took Deoraj out and cured him. Thereafter Deoraj was sent back home and given some food. He was not asked about beating. In cross -examination, he admitted that he was also taken to Police Station on suspicion and detained for 24 hours alongwith Mayaram, Paramsukh, Ratiram, Mansingh, Murha and others. The prosecution has not declared this witness hostile. Under the circumstances, there is no reason to doubt the veracity of this witness. If evidence 9f this witness is read alongwith the evidence of Manavabai (P.W. 5), it will throw doubt about the correctness of her statement. Then, the question is whether Manvabai's statement by 'itself is sufficient to establish the guilt of appellants? It is well established that the burden of proving every ingredient of offence is on the prosecution, which has to be discharged by leading clear and cogent evidence meeting the standard of proof, beyond reasonable doubt Proof beyond reasonable doubt, only means that evidence should be consistent with the guilt of the accused and exclude all other possibilities. Manvabai's evidence, according to this Court, does not meet the said requirement, because it is full of falsities and contradictions. She stated that she had gone to attend the marriage of appellant Gangooram's daughter (para -1), Kumari Bai, but Mahajan (P.W. 1) has stated that it was the marriage of Gangoo's son. Defence witness Premsukh (D.W. 1) also stated the same. The first stated that Gangoo and Heerasingh alongwith Mahajan, Pusau and Vishambhar had given the deceased beating, but they have not been made accused and Mahajan (P.W. 1) had not been asked any question about it. She also stated that both the appellants were armed with axe, but there was no incised wound on the person of the deceased and the seized axe did not have the blood -stains. Her this statement is also contradicted by medical evidence, for which there was. no explanation. Then, this witness states that there were 150 persons present in the house whole night. If the incident had taken place, as stated by her, large number of independent persons could have been examined as witness. None has, however, been examined. This adds meaning to her keeping silent over the incident for long, making. her wholly unreliable. This Court is, therefore, not able to sustain the impugned -judgment of the leaned A.S.J. In this connection it may also be stated that the prosecution case about motive has miserably failed. The prosecution story was that the deceased had raped appellant Gangoo's daughter and was, therefore beaten. Gangoo's daughter Kumari Bai had been medically examined to prove that there was no violence done to her. Under the circumstances, there is no motive also for the appellants to kill their own -brother -in -law. Since Manvabai, their sister was the wife of the deceased, this Court would expect some strong motive for the appellants to make her a widow. Appeal allowed.