STATE OF RAJASTHAN Vs. SHALU AND ORS.

JUDGEMENT

(1.) Instant application for leave to appeal has been filed by the State of Rajasthan against the judgment dated 26.8.2010 passed by the learned Addl. Sessions Judge (F.T.) No. 1, Bikaner in Session Case No. 99/2009 whereby the respondents have been acquitted from the charge under Section 340 (sic 304) read with Section 34 Indian Penal Code

(2.) Succinctly stated the facts of the case are that one Om Prakash lodged a report at the Police Station Bichhwal, Bikaner alleging inter alia that his daughter Sarita was married with the respondent Dev Das 10-12 ago before and she was having three children from the wedlock. He further stated that Sarita was ailing from the last few days as she was suffering from a mental problem. It was alleged in the report that Dev Das and Sita Devi his mother without informing the first informant took Sarita to one occultist (Bhopi) Shalu for getting her treated by "Jhaad Phoonk". Sarita was left with Shalu for the purpose of having her treated by occultist rites. It was alleged that from 2.9.2009 to 10.9.2009, Shalu, her husband Om Prakasah @ Pinki and Dev Das and Sita committed physical cruelty and torture upon Sarita on the pretext of getting her free from evil spirits and due to this Sarita became ill. On 10.9.2009, Sarita was admitted at the P.B.M. Hospital Bikaner. The accused in order to cover up their crimes gave a false information in the P.B.M. Hospital that the deceased had fallen from the roof. Sarita expired due to serious injuries caused to her. He further alleged that Dev Das did not inform him about the incident and he came to know about the happening from his relatives. On the basis of this information, F.I.R. No. 166/2009 was registered for the offence under Section 304 read with Section 34 Indian Penal Code and investigation commenced. The post mortem of the body of the deceased was conducted and as per the post-mortem report, the deceased was found to be having 19 injuries on her person. The age of the injuries was found varying between 24 hours to 3 to 5 days before death. The injuries were opined to be sufficient in the ordinary course of nature to cause death. The Investigating Agency at the conclusion of the investigation proceeded to file a charge sheet against three respondents for the offence under Section 304/34 Indian Penal Code Charge was framed against the respondents for the said offence. The respondents pleaded not guilty and claimed trial. At the trial as many as 15 witnesses were examined by the prosecution. The accused in their statements denied the allegations. The accused Shalu and Om Prakash denied that they were dealing in occultism and submitted that Sarita had never come to their house and that they never treated Sarita. The accused Dev Das in his statement stated that his wife was suffering from mental ailment and that he had taken all steps for having her treated. He further stated that he had never taken his wife for treatment to Shalu and Om Prakash. However, no witness was examined in defence. At the conclusion of the trial, the learned trial Judge by the impugned judgment proceeded to acquit the respondents from the offence. The State has now approached this Court by way of instant application for leave to appeal challenging the judgment of acquittal.

(3.) After having heard learned Public Prosecutor and the counsel for the respondents and after perusing the record, this Court is of the opinion that so far - as respondents Shalu and Om Prakash are concerned, there is no evidence whatsoever on record to show that these respondents had confined the deceased in their house and assaulted her on the pretext of removing evil spirits. The witness which the prosecution relied on in the trial tor proving this fact were Satyendra Singh PW-2, Kalu Ram PW-6, Shiv Kumar PW-7, who all turned hostile at the trial. Apart from this, there is no other evidence by which, these two respondents can be held liable for the offence. Therefore, it is not a fit case for grant of leave to appeal to the State for challenging the acquittal of these two respondents. However, the respondent Dev Das who is the husband of the deceased has not given any explanation as to how his wife had received 19 injuries of the duration between 24 hours to 3 to 5 days sufficient to cause her death. Thus, it is a fit case for grant of leave to appeal qua the respondent Dev Das.