Ganpat vs The State
1986 Latest Caselaw 210 Del

JUDGMENT

1. On 19-8-1974 at about 9 a.m. an information was received at the Police Station Tilak Nagar that a corpse was lying on the Najafgarh Road near village Bodhela. This information was entered in the daily diary. S.I. Ravail Singh along with constable Pritam Singh and Sukhbir Singh reached the place where the corpse was lying. After reaching there he recorded the statement Ex. P.E. 4/B of Smt. Sham Wati W/o Sh. Ganpat, S.I. made the endorsement Ex. P.W. 4/C on the said statement and sent the same for registration of the case under S. 304/201 I.P.C. After the registration of the case and completing the enquiry, accused Ganpat along with his brother Chaman Lal were committed to the Court of Session to stand trial under S. 304/201/34 I.P.C. The learned Sessions Judge on the material before him framed the charges under section 304 (Part I) and S. 201/34 I.P.C. against Ganpat accused while his brother Chaman Lal was charged to stand trial u/s. 201/34 I.P.C. Both the accused pleaded not guilty and claimed a trial.

2. The learned Sessions Judge vide the impugned judgment has convicted the accused Ganpat under section 304 (Part II) I.P.C. and has acquitted him of the other charges. Accused Chaman Lal was also acquitted of the charge under section 201/34 I.P.C. The submission of the learned counsel for the appellant is that the only independent witness of the alleged occurrence was P.W. 9 Lala Ram, whose presence at the spot has been doubted by the learned trial court. Besides him, there is no other evidence to connect the accused with the offence charged. It is also alleged that ocular testimony of the prosecution witnesses is quite contrary to the medical evidence which leads to the only inference that the accused cannot be said to be responsible for the cause of death of the deceased Tara Chand. His further submission is that even if the prosecution story is taken on its face value there is no circumstantial evidence alleged or proved against the accused having caused the death of Tara Chand. Unfortunately, the State has not rendered any assistance to the Court in contradicting the stand taken by the learned counsel for the appellant.

3. I have carefully perused the oral as well as documentary evidence on record and also gone through the judgment carefully. Prima facie there appears to be much substance in the submission of the learned counsel for the appellant. However, in order to appreciate the scope of the arguments advanced at the Bar and to arrive at a correct conclusion the prosecution case has to be kept in mind.

4. Accused Ganpat and Chaman Lal are real brothers. Smt. Sham Wati is the wife of Ganpat and is also the real sister of Smt. Shanti, married to Chaman Lal accused. At the relevant time Smt. Shanti happened to be at the house of Ganpat. In order to take his wife from the house of Ganpat, Chaman Lal took along with him Tara Chand. Both of them started on their cycles at about 6 p.m. on 18-8-74. P.W. 9 Lala Ram met them at the Bus Stop Tatarpur and he also accompanied them. He was made to sit on the rear seat of the cycle which Chaman Lal was riding and all the three came to the house of Ganpat. They had their meals sitting on a charpai in the verandah of the house. At about 8 p.m. some quarrel took place between the two brothers in the wake of which Ganpat picked up a wooden bat, meant for washing clothes, and he tried to hit Chaman Lal accused therewith. Tara Chand intervened and tried to separate them. Ganpat accused at that point of time told Tara Chand to get aside otherwise he would hit the wooden bat on him also. It is case the of the prosecution that as Ganpat dealt the wooden bat on Chaman Lal but on account of Tara Chand having come over him, the blow fell on his head. Even thought Chaman Lal escaped being hit but Tara Chand fell down on receiving this blow and blood started coming out of his mouth and nose. Smt. Sham Wati w/o Ganpat wiped the blood from the face of Tara Chand and laid him on a charpai. As it was getting late Lala Ram left for his house. Tara Chand, however, told him that he would come later after he gained some equilibrium.

5. In support of this version, the prosecution examined as many as 15 witnesses out of which P.W. 7 Vishan Dass, P.W. 9 Lala Ram and P.W. 10 Shyama are the only eye witness of the occurrence. Out of them, Vishan Dass and Smt. Shyama have not supported the prosecution case and were declared hostile. Even during the cross-examination the prosecution could not bring any material on record in support of their version. The only other eye witness is P.W. 9 Lala Ram. His evidence has been discussed by the learned trial court in quite detail. The conclusion is that the presence of Lala Ram at the time of the occurrence at the house of Ganpat is not free from doubt. I am inclined to agree with this finding. This finding automatically would have resulted in the acquittal of the accused for the offences charged with. However, the learned trial Judge roped in the accused on the basis of circumstantial evidence. Even these circumstances, to my mind, are not sufficient to connect the accused with the offences charged. Far-fetched conclusion tried to be arrived on the ocular testimony of the various witnesses, which in fact, is not borne out from the record.

6. Even if for the sake of arguments, the circumstantial evidence is taken on its face value, in my opinion, the prosecution has failed to bring home the charge. To arrive at this conclusion one has only to examine the evidence of P.W. 1 Dr. Bharat Singh, who conducted the post-mortem examination on the body of Tara Chand. He found the following injuries on the body of the deceased :-

1. One lacerated wound over the left side frontal area of skull placed antero posteriorly. Size of the wound was 1/2"x 2/10"x scalp deep. Wound was covered by blood. There was swelling around the wound.

2. Abrasion on the left side of forehead 1/2" above the eyebrow vertically placed. Size 1"x 2/10" red in colour.

3. Bluish ecchymosis around the left eyelids.

4. Abrasion on the back of left elbow size 1/2" x 1/3" red in colour.

5. Abrasion over the left lumber area. Size 3" x 2".

He was of the opinion that injury No. 1 was sufficient to cause death in the ordinary course of nature. The cause of death was coma due to head injuries. While under cross-examination, Dr. Bharat Singh was frank enough to admit that the injuries found on the person of the deceased were the result of separate blows on the various parts of the body. This admission would lead to the conclusion that more than one blows were given to the deceased or the other injuries were the result of a fall on a blunt object. This, however, is not the case of the prosecution. During the occurrence Ganpat gave only one wooden bat blow on the head of the deceased as a result of which he started bleeding from his mouth and nose. The prosecution unfortunately has not explained this material discrepancy as to how an under what circumstances the deceased received other blows and that too on different parts of his body. Even the circumstantial evidence does not fill in this lacuna. In fact, nobody has referred to the other injuries or its cause. In view of these circumstances there being no direct evidence and the circumstantial evidence being contrary to the medical opinion, the learned trial court should have acquitted the accused of the charge.

7. As a result of the above discussion, I hereby accept the appeal, set aside the conviction and sentence of the accused u/s. 304 (Part II) I.P.C. and acquit him. He is on bail. His bail bond is hereby discharged.

8. Appeal allowed.