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2001 DIGILAW 537 (MP)

State of M. P. v. Rambabu

2001-07-24

R.B.DIXIT, S.P.SRIVASTAVA

body2001
JUDGMENT Feeling aggrieved by the judgment dated 10th February, 1986, passed in Special Case No. 147/84, by Special Judge, Bhind, thereby, acquitting respondents/accused persons from charge u/s 147, 148, 307, 392, and 324 read with section 149 of IPC and section 25 (1)(A) of Arms Act, the state, has come up in appeal seeking redress praying for conviction of respondents in aforesaid offence. The facts giving rise to the prosecution of the respondents in brief are that on 11.6.1984, the complainant Baturi (PW 13), when getting the earth filled up outside his gauda, accused Murari, Savdhan, Ramsiya, Rambabu, Asharfi, Pramod and Munna came there and stopped him from filling the earth claiming the place of their own. Baturi also insisted saying that he is in possession of that place. This caused wordy quarrel between them. On that juncture, Ramsanehi (PW 4) invervened. Savdhan and Murari armed with Katta, Ramsiya with Ballam, Pramod with Katta and Rambabu, Munna and Asharfi with lathis surrounded Ramsanehi and started assaulting. Rambabu exhorted his son Murari to kill him with Katta. Murari and Savdhan who were armed with Katta, fired upon him, however, he narrowly escaped. When Baturi intervened he was also assaulted by the accused persons. Vijay son of Ramsanehi, rushed to save them, armed with licenced gun, however, accused persons snatched the arm and ran away after firing in the air. Baturi lodged first information report, (Ex. P/7 A), at Police Station Mehgaon and injured were referred for medical examination. In medical examination of Ramsanehi, no fire arm injury was found on his body. The defence of accused persons, was one of complete denial and false implication out of enmity. They have also examined three witnesses in defence regarding the plea of alibi and self defence. The learned trial Court, after recording evidence of both the parties, and examining accused persons u/s 313 of CrPC, came to the conclusion that the defence has successfully stablished the right of self defence as well as the right to defend the property and acquitted the accused persons, giving them benefit of doubt. The learned Govt. Advocate appearing for the State has contended before us that none of the accused has received any injury in the incident, in the circumstances, the question of right of self defence, does not arise. The learned Govt. Advocate appearing for the State has contended before us that none of the accused has received any injury in the incident, in the circumstances, the question of right of self defence, does not arise. It has also been argued that, there is no evidence to show that the place where the incident took place, belongs to any of the accused persons. The learned counsel for the respondents on the otherhand has supported C the findings of the trial Court on the basis of the evidence on record. We have given our anxious consideration to the arguments advanced by both the parties and perused the record. Complainant Baturi (PW 13), although corroborated the prosecution story in his examination in chief, however, in the cross-examination, he has admitted that accused Rambabu objected to fill the place of earth on the ground that the place belongs to him. According to him, Ramsanehi had received Katta injury in standing position, when he was fired upon by accused Murari and Savdhan. Ramsanehi (PW 14), has given different version of the story by stating that during scuffle Savdhan fell on the ground below him and fired from his Katta in this position , on his chest. However, there is no tattooing, charring or blackening at any place of his body in medical examination, which gives lie regarding any assault by any fire arm. He has given no explanation in his police case diary statement (Ex.D/l), regarding absence of firing by Katta by Savdhan in lying position. In his dying declaration, he has also not named accused Pramod and Asharfi. Thus, the presence of Murari, Savdhan, Asharfi and Pramod on the spot, becomes doubtful. The learned trial Court has also disbelieved presence of witness Kailashi (PW 16), as an eye witness on the spot. In so far as accused Rambabu is concerned, there is no mention in the statement of Ramsanehi regarding any assault by Rambabu. In such a situation, when presence of any of the accused on the spot is not found proved, from the prosecution evidence, the question of their pat1icipation in making assault on the injured witnesses, becomes most suspicious. In so far as accused Rambabu is concerned, there is no mention in the statement of Ramsanehi regarding any assault by Rambabu. In such a situation, when presence of any of the accused on the spot is not found proved, from the prosecution evidence, the question of their pat1icipation in making assault on the injured witnesses, becomes most suspicious. It may be possible that some of the accused persons might have been present on spot, while the injuries were caused, to the injured witnesses, however, in absence of specific role of each of the accused, in making assault, or being involved in the incident their guilt is not proved beyond doubt. It will not be safe to convict any of the accused persons in absence of cogent and reliable evidence. In the first information report also, the complainant has not given correct version of the prosecution story. There is also no reason to disbelieve the evidence of the defence witnesses as relied upon by the learned trial Court, when there is bonafide claim of the accused persons on the property in dispute and when one of the accused Savdhan alleged to have fell on the ground in mutual scuffle, and Vijay son of Ramsanehi also came on the spot armed with a gun, in such a situation, the accused persons had acquired reasonable right to defend their person and property. When the prosecution is not coming out with true version of the incident, the learned trial Court has not committed any error in granting benefit of doubt to the accused respondents. The findings of learned trial Court, in our opinion, are neither perverse nor against the record. For the reasons stated hereinabove, this appeal, fails and is dismissed accordingly.