Balaknath Vs. State of Rajasthan - Court Judgment

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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1997CriLJ2722',
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		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
		(int) 1 => 'balaknath-vs-state-rajasthan'
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
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			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
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		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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		'pubs' => '1997CriLJ2722',
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		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
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		'circuit' => null
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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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		'pubs' => '1997CriLJ2722',
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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
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	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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G.L. Gupta, J.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
	'args' => array(
		(int) 0 => '760724',
		(int) 1 => 'balaknath-vs-state-rajasthan'
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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		'pubs' => '1997CriLJ2722',
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		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
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		'circuit' => null
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
		(int) 1 => 'balaknath-vs-state-rajasthan'
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
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	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
	'args' => array(
		(int) 0 => '760724',
		(int) 1 => 'balaknath-vs-state-rajasthan'
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
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		'pubs' => '1997CriLJ2722',
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		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
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		'circuit' => null
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
		(int) 1 => 'balaknath-vs-state-rajasthan'
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.

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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
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		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
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	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
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		'circuit' => null
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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1. The accused had given her beatings by the hunter made of wires.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
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			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
)
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2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
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	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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3. The accused had tied the hands and legs of Laxmi by a rope.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
	'args' => array(
		(int) 0 => '760724',
		(int) 1 => 'balaknath-vs-state-rajasthan'
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
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		'circuit' => null
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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4. The accused had given kicks on the chest of Laxmi.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
		(int) 1 => 'balaknath-vs-state-rajasthan'
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.

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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1997CriLJ2722',
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		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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6. The accused did not give food to Laxmi.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
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	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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7. The accused kept Laxmi in the heat of sun.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
		(int) 1 => 'balaknath-vs-state-rajasthan'
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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		'pubs' => '1997CriLJ2722',
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		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
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		'circuit' => null
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 38
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11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-

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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1997CriLJ2722',
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		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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1. Bruise with abrasion 2' x 1/2' below left eye.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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		'pubs' => '1997CriLJ2722',
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
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	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
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	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
	'args' => array(
		(int) 0 => '760724',
		(int) 1 => 'balaknath-vs-state-rajasthan'
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1997CriLJ2722',
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		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
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	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
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		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
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		'circuit' => null
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.

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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1997CriLJ2722',
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		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
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	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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		'pubs' => '1997CriLJ2722',
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		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
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		'circuit' => null
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1997CriLJ2722',
			'ratiodecidendi' => '',
			'respondent' => 'State of Rajasthan',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'balaknath-vs-state-rajasthan',
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		(int) 0 => '760724',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
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			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1997CriLJ2722',
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		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1997CriLJ2722',
		'ratiodecidendi' => '',
		'respondent' => 'State of Rajasthan',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'balaknath-vs-state-rajasthan'
$args = array(
	(int) 0 => '760724',
	(int) 1 => 'balaknath-vs-state-rajasthan'
)
$url = 'https://sooperkanoon.com/case/amp/760724/balaknath-vs-state-rajasthan'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
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24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.

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	'title_for_layout' => 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '760724',
			'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
			'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
			'appellant' => 'Balaknath',
			'authreffered' => '',
			'casename' => 'Balaknath Vs. State of Rajasthan',
			'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => ' B.N. Kalla, Adv.',
			'counseldef' => ' D.R. Bohra, P.P.',
			'court' => 'Rajasthan',
			'court_type' => 'HC',
			'decidedon' => '1997-04-11',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
			'judgement' => '<p style="text-align: justify;">G.L. Gupta, J.</p><p style="text-align: justify;">1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p style="text-align: justify;">2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p style="text-align: justify;">3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p style="text-align: justify;">4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p style="text-align: justify;">5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p style="text-align: justify;">6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p style="text-align: justify;">7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p style="text-align: justify;">8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p style="text-align: justify;">9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p style="text-align: justify;">1. The accused had given her beatings by the hunter made of wires.</p><p style="text-align: justify;">2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p style="text-align: justify;">3. The accused had tied the hands and legs of Laxmi by a rope.</p><p style="text-align: justify;">4. The accused had given kicks on the chest of Laxmi.</p><p style="text-align: justify;">5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p style="text-align: justify;">6. The accused did not give food to Laxmi.</p><p style="text-align: justify;">7. The accused kept Laxmi in the heat of sun.</p><p style="text-align: justify;">10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p style="text-align: justify;">11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p style="text-align: justify;">1. Bruise with abrasion 2' x 1/2' below left eye.</p><p style="text-align: justify;">2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p style="text-align: justify;">Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p style="text-align: justify;">12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p style="text-align: justify;">13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p style="text-align: justify;">14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p style="text-align: justify;">15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p style="text-align: justify;">16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p style="text-align: justify;">17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p style="text-align: justify;">18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p style="text-align: justify;">There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p style="text-align: justify;">19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p style="text-align: justify;">ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p style="text-align: justify;">20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p style="text-align: justify;">21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p style="text-align: justify;">22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p style="text-align: justify;">23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p style="text-align: justify;">24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Balaknath Vs State of Rajasthan - Citation 760724 - Court Judgment | '
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	'Judgement' => array(
		'id' => '760724',
		'acts' => 'Indian Panel Code, 1860 - Sections 302, 323, 325 and 342; Code of Criminal Procedure (CrPC) - Sections 174 and 313',
		'appealno' => 'D.B. Criminal Jail Appeal No. 16 of 1983',
		'appellant' => 'Balaknath',
		'authreffered' => '',
		'casename' => 'Balaknath Vs. State of Rajasthan',
		'casenote' => ' - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ]  Determination as to Juvenile  -  Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2  a  juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years  - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k)  a  juvenile or child was defined to mean a child who had not completed eighteen years  of a ge which was given prospective prospect  - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force -  Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007  - As such, Accused has to be treated  as Juvenile under the said Act.  -  After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
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		'counselplain' => ' B.N. Kalla, Adv.',
		'counseldef' => ' D.R. Bohra, P.P.',
		'court' => 'Rajasthan',
		'court_type' => 'HC',
		'decidedon' => '1997-04-11',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' G.L. Gupta and; S.C. Mittal, JJ.',
		'judgement' => '<p>G.L. Gupta, J.</p><p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.</p><p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.</p><p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.</p><p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.</p><p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.</p><p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.</p><p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.</p><p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.</p><p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:</p><p>1. The accused had given her beatings by the hunter made of wires.</p><p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.</p><p>3. The accused had tied the hands and legs of Laxmi by a rope.</p><p>4. The accused had given kicks on the chest of Laxmi.</p><p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.</p><p>6. The accused did not give food to Laxmi.</p><p>7. The accused kept Laxmi in the heat of sun.</p><p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.</p><p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-</p><p>1. Bruise with abrasion 2' x 1/2' below left eye.</p><p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.</p><p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.</p><p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.</p><p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.</p><p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.</p><p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.</p><p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.</p><p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.</p><p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.</p><p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.</p><p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R</p><p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.</p><p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.</p><p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.</p><p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.</p><p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.</p><p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p></p><p>',
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	(int) 0 => '<p>G.L. Gupta, J.',
	(int) 1 => '<p>1. Though this appeal Balak Nath @ Girdharidas has challenged his conviction Under Section 302, I.P.C. and sentence of imprisonment for life recorded by the learned Additional Sessions Judge, Sirohi vide his judgment dated 26-11-1982.',
	(int) 2 => '<p>2. The unfortunate case relates to an occurrence which took place in Aug. 1980 in which Laxmi (35) lost her life. The facts of the case are typical. It is said that accused lived in village Pomava in the temple of Lord Shiva. People believed that he could cure the diseases by 'Mantras' or witchcraft. It is said that on 15th August. 1980 somebody threw five lemons in the house of Kera, After the lemons were seen in the house, all the five occupants Kera, Laxmi, Gamni, Sesia and Ramiya felt uneasiness. After about one hour, a lump of earth was also noticed by Kera in his house. On this all the five family members started moving to and fro tossing their heads and they continued to shout the names of Gods. After some time when they felt better, they approached accused Balak Nath who was in his hut in the temple. The accused read some 'Mantras' and told that everything would be alright. All the family members continued to live in the hut for five days. On 19-8-1980 at about 5 p.m. when the family members of Kera were sitting in the hut near the accused, five lemons came to be noticed and seeing them all the five members got ill. After some time there was blood from the mouth of Laxmi and she died. At that time number of villagers were present there. Accused assured the people that he would bring life back in Laxmi. However, Laxmi could not regain consciousness and hence a report was lodged in the police. On this report inquest was held Under Section 174, Cr.P.C. thereafter the police recorded statement of Kera on 20-8-1980 and on that basis a case was registered Under Sections 302, 323 and 342, I.P.C. The police interrogated the witnesses, inspected the site and arrested the accused. On the information given by the accused, articles viz. broom of peacock feathers 'Koont', pieces of ropes, some pieces of papers having writings on them and a hunter were recovered from the 'Sal' where th accused lived. The autopsy was held by Dr. Purohit P.W. 16 and he prepared the report Ex.P-30. He opined that Laxmi had injuries on her face and left elbow and that she had died because of asphyxia as a result of suffocation. After the completion of the investigation the accused was charge-sheeted.',
	(int) 3 => '<p>3. Charges Under Sections 302, 323 and 325 were framed against the accused who pleaded not guilty. The prosecution examined sixteen witnesses. Out of them P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh, P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera. P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia were examined as eyewitnesses. P.W. 6 Vagaram lodged the report Ex.P31 on the asking of the accused. P.W9 Hemadas and P.W. 10 Jesa had removed the dead body from Under the Baniyan tree on the asking of the accused. P.W. 16 Dr. S.P. Purohit had performed autopsy on the body of Laxmi and had examined the injuries of Gamni, Ramiya and Sesia. P.W. 15 Doongar Singh and P.W. 14 Nahar Singh had taken part in the investigation of the case. Accused in his statement Under Section 313, Cr.P.C. denied accusation. However, he admitted that deceased Laxmi was in his hut and she used to toss her head. He also admitted that Laxmi died in hut. He further admitted that the dead body of Laxmi was removed from 'Bur tree' (Baniyan tree) to his 'Sal'. He denied that he had given beatings to Laxmi or had tortured her. He stated that he was having vow of silence during those days and he used to treat the people by 'Mantras'. Accused examined one witness Roop Singh in defence who stated that the accused used to cure diseases by giving sacred ash of cowdung to the patients. The learned Sessions Judge heard the arguments of the learned Public Prosecutor and Amicus Curiae of the accused. He held that Laxmi had met homicidal death. He further held that the accused had tortured Laxmi and his act was imminently dangerous which in all prohibitilily was likely to cause death, he, hoever did not find proved charges Under Sections 325 and 323, I.P.C. which were framed for the injuries of Ramiya, Sesia and Gamni. He accuitted him of these offences.',
	(int) 4 => '<p>4. The contention of Mr. Kalla, learned counsel for the appellant was that almost all the eyewitnesses have turned hostile and Kera and Sesia have given false statements. Pointing out our attention towards medical evidence, he argued that the learned Sessions Judge has erred in convicting the accused.',
	(int) 5 => '<p>5. Learned Public Prosecutor on the other hand tried to support the judgment of the other hand tried to support the judgment of the trial court.',
	(int) 6 => '<p>6. We have given the arguments our thoughtful consideration. As already stated the prosecution examined P.W. 1 Kashtura, P.W. 2 Karan Singh, P.W. 3 Arjun Singh. P.W. 4 Madan Singh, P.W. 5 Chunnilal, P.W. 7 Vane Singh, P.W. 8 Veera, P.W. 11 Kera, P.W. 12 Ramiya and P.W. 13 Sesia as eye-witnesses. But for Sesia and Kera, all the other witnesses have turned hositle. They have been confronted with their police statements. Their explanation had been that they did not given such statements in which it was recorded that the accused had given beatings to Laxmi by hunter and she was not allowed to drink water and take her food. P.W. 12 Ramiya is a boy of 5 years. He was produced in the Court but looking to his tender age and his continuous weeping in Court no question was asked to him. Thus, we are left with the statements of P.W. 11 Kera and P.W. 13 Ramiya.',
	(int) 7 => '<p>7. It has to be seen whether on the basis of statements of these two witnesses it can be found that accused had given beatings to Laxmi or that he had tortured her by not allowing her to take water and take meals and keeping her lying Under the heat of sun.',
	(int) 8 => '<p>8. P.W. 11 Kera deposes that his wife Laxmi, daughter Gamni and son Sesia had gone to the hut where the accused was residing and that he along with his sone Ramiya had also gone there in the morning. There he heard Laxmi telling the accused that thief was going, on which the accused gave beatings to her by hunter, made to wires and the accused also told her to collect cowdung from outside on which his wife told that she was hungry and she wanted to go to her house to take meals, but the accused did not allow her to so. He then says that the accused did not allow her wife to take water at 12 noon and when she ran towards the house of a 'Rajput' for water the accused chased her and took her back in the hut giving beatings by hunter and he tied her hands and legs by a rope and made her to sleep in the heat of sun having her face towards sky. He says that when Laxmi uttered some words the accused hit her mouth by 'Koont' and he have Kicks on her chest. According to him, Ramiya was hanged on a stone slab and a burnt cloth was put on his thighs and Sesia's hands were also tied and Gamani was also tied and Gamni was also tied by her hairs a baniyan tree. He also deposes that he asked the accused that Laxmi was dying and on that Ramiya was released, Gamni and Sesia were set fre and Laxmi was removed from the open ground to 'Sail' and there the accused asked Ramiya to practise exorcism and he himself also exercised exorcism but his wife did not regain consciousness. P.W. 13 Sesia deposes that his sister Gamni was not well for some times and, therefore, they had taken her in the hut of the accused for treatment where they were kept for about 5-6 days. According to him the accuse did not give water or food to his mother and kept her in the heat of the sun and, therefore, she died. He deposes that the accused had given beatings to him and his family members by the hunter and he had caused injuries in the mouth of his mother by 'Koont' and when his mother ran for the water out of the hut the accused chased her and took her back in the hut giving beatings.',
	(int) 9 => '<p>9. The statements of Kera and Sesia indicate the following acts of the accused which according to the witnesses contributed to the death of Laxmi:',
	(int) 10 => '<p>1. The accused had given her beatings by the hunter made of wires.',
	(int) 11 => '<p>2. The accused had inflicted 'Koont' blows on the mouth of Laxmi.',
	(int) 12 => '<p>3. The accused had tied the hands and legs of Laxmi by a rope.',
	(int) 13 => '<p>4. The accused had given kicks on the chest of Laxmi.',
	(int) 14 => '<p>5. The accused did not allow Laxmi to drink water and when she attempted to to drink water, he gave beating to her by hunter.',
	(int) 15 => '<p>6. The accused did not give food to Laxmi.',
	(int) 16 => '<p>7. The accused kept Laxmi in the heat of sun.',
	(int) 17 => '<p>10. The crucial point for determination is whether the statements of Kera and Sesia can be believed. There is no denying the legal position that conviction can be sustained only on the evidence of single witness and even when he is a relative witness but the essential thing to be seen is whether the evidence of that witness inspires confidence.',
	(int) 18 => '<p>11. If we go through the medical evidence it becomes clear that Kera and Sesia have given false statements. The autospy was held by P.W. 16 Dr. Purohit. He proves the post mortem report Ex. P-30 and states that there were following two injuries on her person:-',
	(int) 19 => '<p>1. Bruise with abrasion 2' x 1/2' below left eye.',
	(int) 20 => '<p>2. Abrasion 1/2' x 1/4' on left elbow joint posteriorly.',
	(int) 21 => '<p>Medical Officer did not find any other injury on the person of Laxmi. As already stated, according to Sesia and Kera the accused had given merciless beating to Laxmi first in the morning when she told that a thief was going and thereafter when she ran to drink water in the neighourhood. However, not a single injury was found on the person of Laxmi which could be caused by hunter made of wires. In case the accused had inflicted injuries by a hunter first in the morning and thereafter in the afternoon the deceased must, have sustained number of injuries on her person. It is relevant to state the Medical Officer does not say that the two injuries found on her person could be caused by a huntr made of wires. It is worthwhile to slate that the Investigating Officer recovered a hunter vide recovery memo Ex. P-13 which was lying in the hut of the accused. The description of the hunter recovered in the recovery memo shows that it was made of 19 aliminium wires having rubber coating thereon. If injuries had been caused by such a hunter there could have been not only very many injuries on the person of Laxmi but also the injuries would have been of very serious nature.',
	(int) 22 => '<p>12. Similarly both the eye-witnesses depose that the accused had tied the hands and legs of Laxmi by a rope. However, in the post-mortem examination no marks of tying were found either on the hands or on the legs. The rope which has been recovered from the hut of the accused was made of plastic. The tying of hands and legs by plastic rope would have definitely left marks of tying. The fact that no marks of tying were found on the body of Laxman clearly indicates that the witnesses have given false statements in this regard.',
	(int) 23 => '<p>13. According to the witnesses the accused had caused injuries by a weapon known as 'Koont' in the mouth of Laxmi. However, no mark of injury was found on the lips, tongue, jaws or teeth of Laxmi during post-mortem examination. It is relevant to state that the 'Koont' recovered from the hut of the accused was having sharp edged 6 inches long blade. Even when 'Koont' was used from the reverse side, there should have been some marks of injury on the mouth of the deceased. Since no injury which could be caused by 'Koont' was found in or around her mouth, it is obvious that both the witnesses have given false statements in this regard.',
	(int) 24 => '<p>14. So also, no mark of injury was found on the chest of Laxmi though accordintg to the witnesses kicks were given on the chest. Thus, on this point also the statements of the witnesses are false.',
	(int) 25 => '<p>15. According to both the witnesses Laxmi was not allowed to take food. However, this fact is falsified by the post-mortem report Ex. P/30 wherein it is clearly stated that food material was found in the abdomen of Laxmi. Dr. Purohit in his statement also deposes that dark colour food material was present in the stomach. It is thus obvious that undigested food material was there in the stomach of the decesased when she died. The existence of undigested food material clearly falsifies the statement of two witnesses that Laxmi was not allowed to take food by the accused on the day of occurrence.',
	(int) 26 => '<p>16. Both the witnesses depose that the deceased was not allowed to take water and she was kept in the heat of the sun. If Laxmi had not drank water and she had been kept in the heat of the sun there was bound to be dehydration However, the Postmortem report Ex.P-30 does not indicate that there was dehydration or there was some problem because of the shortage of water in the body. That being so, this part of the statements of the witnesses cannot be believed that Laxmi was not allowed to take water and she was kept in the heat of the sun.',
	(int) 27 => '<p>17. In sum, the medical evidence does not corroborate the statements of Kera and Sesia. Rather thre is marked inconsistency in the medical evidence and the direct evidence. It is not possible to hold the evidence of two eye witnesses trustworthy.',
	(int) 28 => '<p>18. According to Dr. Purohit the cause of death of Laxmi was asphixia as a result of suffocation by blocking of mouth and nose and pressure on wind pipe.',
	(int) 29 => '<p>There is no evidence on record that the accused had blocked the mouth and nose of Laxmi and had put pressure on her windpipe. It is however relevant to state that in the statement of Kera Ex.P-15 which was treated as F.I.R. by the police it was stated that the accused had put a cloth soaked with blood in the mouth of Laxmi and he had given blows by 'Koont' on the teeth of Laxmi and had given kicks with force on her neck and had pressed the wind pipe by his foot. However, all these facts have not been deposed by Kera in his statement. Needless to say that the F.I.R. is not a substantive piece of evidence and it can be used to corroborate or contradict the maker. When Kera does not depose about these facts which indicate the cause of death of Laxmi in his statement before the Court, it cannot be found that the accused had put anything in the mouth of the deceased or he had put presure by his foot on her wind pipe on that he had given kicks on her neck. The death by suffocation could take place when there was exclusion of air from the lungs which could be caused by smothering or closure of the mouth and nostrils. However, these facts are not proved by any evidence on record and, therefore, it cannot be found that the accused had committed any act whereby he had obstructed the breathing of Laxmi causing her death by asphyxia. It is significant to point out that according to Kera and Sesia they were present in the hut for all the time. When they do not depose such facts which could cause the death of Laxmi. It cannot be found proved that the accused had caused the death of Laxmi by doing any act.',
	(int) 30 => '<p>19. It is also to be noted that according to Kera when the accused hands and legs of Laxmi and landed hunter blows many persons of the village were there in the hut. It cannot be believed that the villagers would not intervene at such juncture when the accused was assaulting the lady. It is also surprising that Kera did not request the villagers to help him in getting his wife released. His this explanation that he continued to be labouring Under the impression that by such acts his wife would become alright can hardly be believed. One can Understand that villagers do believe in witchcraft and exorcism. However, on seeing the accused practising witchcraft and exorcism given beating, it cannot be believed that the villages and family members would tolerate silently. In the instant case, Kera wants us to believe that even on seeing that his five year old son R',
	(int) 31 => '<p>ya was hanged by stone slab havin his head towards the ground and he was burnt on his thighs, his daughter Gamni was tied with the tree, his another son Sesia's hands were tied by a rope and his wife was being beaten by hunters keeping her hands and legs tied, he continued to think that the treatment was going on and his family members would be alright by such treatement. It is difficult to believe that the head of the family could behave in such an abnormal manner. At that time, according to the winess number of villagers were there. It cannot be believed that they would also lose their senses and would not intervene on seeing such cruel behavour of the accused. The story put forward by the prosecution does not appeal to us.',
	(int) 32 => '<p>20. It is to be pointed out that the prosecution story regarding the beatings being given to Gamni, Ramiya and Sesia has not been found proved by the trial court and the accused has been acquitted for having caused injuries to them. In our opinion, on the basis of the evidence of Kera and Sesia which runs counter to the medical evidence and which depicts the most unnatural conduct of the witnesses cannot be believed. The trial court has erred in giving credence to such evidence.',
	(int) 33 => '<p>21. However, there is clear evidence on record that Laxmi was in the hut of the accused when she died. It is also borne out that Laxmi had met homicidal death. But on these grounds it cannot be inferred that the accused had committed the murder of Laxmi. The death is said to have taken place in the broad day light and in the presence of many persons of the village. How Laxmi died is really a mystery. However, when so many persons were their in the hut and it was almost a open place being temple of Lord Shiva every person could go there, the possibility that any person other than the accused might have caused the death of Laxmi cannot be ruled out. It appears that the accused who used to treat the patients by practising exorcism asked P.W. 9 Hemdas and P.W. 10 Jesa to bring Laxmi in the 'Sal' of hut and he chanted some 'Mantras' in order to revive her but he did not succeed. It may be that the patients who used to go in the hut for treatment sometime tossed their heads and Laxmi might also have done so but on these facts it cannot be found with certainty that the accused had done something which had contributed to the death of Laxmi.',
	(int) 34 => '<p>22. There could not be any motive for the accused to have caused the death of Laxmi. It is not the case for the prosecution that the accused had raised some demand from Kera which he did not meet or that he had an evil eye on Laxmi. Without any rhyme or reason the accused would cause the death of Laxmi, it cannot be believed.',
	(int) 35 => '<p>23. The prosecution has examined number of eye-witnesses. However, all of them have turned hostile. The witnesses could not have any interest in the accused as to supress the truly. It is not suggested also that the witnesses are in any manner interested in the accused. Kera was the resident of the same village and, therefore, the witnesses could have interest in Kera and his family. The very fact that all the witnesses who come from different comunties do not stand by the prosecution version goes to show that the case is based on a concocted story and accused did not commit any act wihch was responsible for the death of Laxmi. The learned Sessions Judge has obviously erred in convicting the accused.',
	(int) 36 => '<p>24. Consequenlty, we accept the appeal, set aside the conviction of the appellant Under Section 302, I.P.C. and the sentence imposed on him and acquit him. He is on bail. He shall not surrender to the bail bonds which stand cancelled.<p>',
	(int) 37 => '<p>'
)
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