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CASE NO.: Appeal (crl.)  1275 of 2001

PETITIONER: State of Madhya Pradesh

RESPONDENT: Sewa Singh

DATE OF JUDGMENT: 13/06/2007

BENCH: Dr. ARIJIT PASAYAT & B.P. SINGH

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      The State of Madhya Pradesh is in appeal against the  judgment of Madhya Pradesh High Court, Jabalpur, directing  acquittal of the respondent. Respondent, who had been  convicted for offence punishable under Section 304 Part II of  the Indian Penal Code, 1860 (in short the ’IPC’) and sentenced  to undergo RI for five years and to pay a fine of Rs.5,000/-,   preferred an appeal against the judgment of learned Additional  Sessions Judge, Tikamgarh.  The High Court accepted the  appeal and directed acquittal of the respondent.  2.      The background facts in a nutshell are as follows:

Achelal (hereinafter referred to as the ’deceased’), while in  custody, was slapped and kicked on his testicles by the  accused, who was the S.H.O., and that resulted in his death.   The autopsy on the body of Achelal was conducted by a panel  of three doctors on 14.12.1987.  The post mortem report is Ex.  P-1A. According to this report no external or internal injury  was found on the dead body. The cause of death has been  shown as ’unknown’.  The viscera of the dead body was  preserved.  It was sent to the Forensic Science Laboratory,  Sagar and as per report Ex.P-21, the presence of Ethyl Alcohol  was detected therein.       3.      The respondent took the plea that he had not assaulted  the deceased.  Placing reliance on the evidence of Kusum (PW- 6) who claimed to be witness, conviction was recorded by the  Trial Court and sentence was imposed as noted above. The  High Court found that the evidence of PW-6 was not reliable  and in any event the medical evidence completely ruled out  the version presented by PW-6.  

4.      In support of the appeal, learned counsel for the  appellant-State submitted that the High Court has erroneously  directed acquittal of the respondent.  Evidence of PW-6 should  have been accepted and there was no contradiction between  medical evidence and the ocular evidence.       

5.      There is no appearance on behalf of the respondent in  spite of service of notice.

6.      Two factors weighed with the High Court in directing  acquittal i.e. (a) apparent contradictions in the evidence of PW- 6 and (b) her version being at variance with the medical  evidence. The post-mortem was conducted by a team of

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doctors. It was noted that there was no external or internal  injury and the cause of death is unknown. On forensic  examination presence of Ethyl Alcohol was noticed. If the  deceased had been subjected to kicks on vital parts or slapped  as was stated by PW-6 there certainly would have been marks  of injury.  Doctor’s evidence clearly rules this out. Further the  evidence of PW-6 was rightly held to be unreliable by the High  Court.  During investigation she has stated that the accused  had slapped the deceased. There was no mention about the  kick on the thigh or that the accused kicked the deceased after  he fell down. Further the evidence of PW-2 (brother of PW-6)  was to the effect that PW-6 had told him that the deceased  was assaulted by Sub Inspector Pandey and the accused.   Evidence of PW-6 is entirely different. It is true that in the case  of custodial violence there would be less possibility of getting  direct evidence, and direct independent witness. This was the  position as indicated by this Court in State of M.P. v.  Shyamsunder Trivedi and Ors. (1995 (4) SCC 262).  There  were injuries on the body of the deceased in that case.  In the  present case medical evidence clearly shows that there was no  external or internal injury.                  

7.      Above being the position, the judgment of acquittal  passed by the High Court does not suffer from any infirmity to  warrant interference.    8.      The appeal is dismissed.