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2006 DIGILAW 537 (CHH)

STATE OF M. P. v. RIKHIRAM

2006-11-22

D.R.DESHMUKH

body2006
ORDER 1. Heard on the question of grant of special leave to appeal. 2. State has preferred this application for leave to appeal against the judgment dated 4.9.1995 in Criminal Case No.441 of 1983 by Shri S.N. Pandey, Judicial Magistrate First Class, Dongargarh whereby respondents were acquitted of the charge under Section 388 and 348 of I.P.C. 3. Brief facts are that Rain Bai P.w. 4 is the wife of Mehtar P.W3 Their elder son Narad was living with the sister of Mehtar in village Semhra and was not returning home. On being asked, respondent-Lahla told Rain Bai that some witchcraft has been done and if she pays Rs.300/- he will set things right. On 18.7.1983 Rain Bai P.W4 was going with Mehtar P.W3 to Dongargarh. On way, they met the respondents. The respondents, with an assurance to do their work, took them to their house where Lahla asked his daughter to lie on the ground and covered her with a bed-sheet. He thereafter asked Rain bai and Mehtar to throw some rice on his daughter. Soon thereafter he started crying that due to their witchcraft, his daughter has died and unless Mehtar paid a sum of Rs.5000/- he would lodge a report against Mehtar in the Police Station. Mehtar got frightened. Rikhiram asked Mehtarto accompany him in search of money while Lahla detained Rain Bai at the house. Mehtar went to Hukumchand P. W. 7 and Suresh Kumar Soni P. w'8, but could not get any financial assistance from them. Upon this, respondent Rikhiram suggested that Mehtar should execute a document is his favour acknowledging receipt of Rs.5,000/- Mehtar purchased a stamp EX.P.2 from Stamp Vendor Ramswaroop P. W.6 and wrote an acknowledgment of receipt ofRs.5,000/- from Rikhiram for purchasing a Bull there’re after both returned home. Lahla permitted Rain Bai to accompany Mehtar home. Two days thereafter Mehtar lodged F.I.R. on 20.7.1983 Ex.P.3 in P.S. Dongargarh. After completion of investigation, the respondents were prosecuted under Section 388 and 348 of the I.P.C. 4. The learned Judicial Magistrate First Class, on appraisal of evidence, held that the prosecution has tailed to establish the guilt of the respondents/accused beyond reasonable doubt for offences punishable under Sections 388 and 348 of I.P.C. and acquitted both the respondents. 5. Shri Sanjay Shyam Agrawal. The learned Judicial Magistrate First Class, on appraisal of evidence, held that the prosecution has tailed to establish the guilt of the respondents/accused beyond reasonable doubt for offences punishable under Sections 388 and 348 of I.P.C. and acquitted both the respondents. 5. Shri Sanjay Shyam Agrawal. learned Government Advocate for the applicant/State argued that learned trial Judge had in para 9 of the judgment, observed that the testimony of Mehtar P.W.3 and Rain Bai P.W.4 fully corroborated each other and was wholly un-rebutted in cross-examination. It had also observed in the same paragraph that the execution of Stamp Ex.P.2. by Mehtar was also established. It was also contended that the testimony of Mehtar P.W.3 and Rain Bai P.W.4 also found corroboration from the ELR. Ex.P.3. which was proved by Investigation Officer V.K.Mishra P.W.9. The testimony of Hukumchand P.W, 7. also proved that Mehtar came to borrow Rs.3,000/- and had told him that he had been implicated by Rikhirani in some witchcraft matter. On these premises, it was urged that the impugned judgment was perverse. 6. On the other hand, Shri Prafull N. Bharat, learned counsel for the accused/respondents contended that the essential ingredients of Section 388 and 348 of I.P.C. were wholly missing in the testimony of Mehtar P.W.3 and Rain Bai P.W.4. There was no satisfactory explanation for the delay in lodging the F.I.R. after considerable delay of two days. The testimony of attesting witness Ishwarlal D.W.1 rendered the defence version plausible that Mehtar had borrowed Rs. 5,000/- from Rikhiram and had executed the document Ex.P.2. Lastly, it was submitted that the testimony of Mehtar P.W.3 that Rikhiram took him to various persons for borrowing money is rendered palpably false since Hukumchand P.W, 7 and Suresh Kumar Soni P.W.8 did not depose about the presence of Rikhiram with Mehtar. Learned counsel for the respondents/accused placing reliance on Ramesh Babulal Doshi Vs. State of Gujarat Dhanna etc. Vs. Stale of Madhya Pradesh and Ajit Savant Majagavi Vs. State of Karnataka urged that the judgment of acquittal by the learned trail Judge was well merited and no ground for granting special leave to appeal was made out by the State. 7. Having heard rival contentions. I have perused the record of criminal case No. 441 of 1983 and the impugned judgment. State of Karnataka urged that the judgment of acquittal by the learned trail Judge was well merited and no ground for granting special leave to appeal was made out by the State. 7. Having heard rival contentions. I have perused the record of criminal case No. 441 of 1983 and the impugned judgment. The defence taken by the respondents/accused is that Mehtar had borrowed Rs.5000/- from Rikhiram for purchasing a Bull and had executed a document and had falsely implicated them to avoid liability. In order to constitute an offence under Section 388 I.P.C., it has to be established that the accused had put any person in fear of an accusation of having committed or attempted to commit any offence punishable with death, or imprisonment for life or imprisonment for a term which may extend to 10 years, or of having attempted to induce any other person to commit such offence. Rain Bai P. W.4 did not depose that respondents Rikhiran1 or Lahla had put her husband in fear of accusation of having committed on offence punishable with death or life imprisonment or imprisonment for a term which may extend to 10 years. The statements of Mehter P.W.3 and Rain Bai P.W.4 are thus contradictory. Similarly in order to constitute an offence under Section 348 I.P.C. it has to be established that the accused Lahla had prevented Rain Bai form proceeding beyond certain circumscribing limits. The testimony of Mehtar P.W.3 and Rain Bai P.W.4 falls short of the requisite proof required to prove the guilt under Section 348 I.P.C. since Rain Bai P.W.4 did not depose that she was prevented by the respondent Lahla in any manner from proceeding beyond certain circumscribing limits. Thus the basic ingredients for offences under Section 388 and 348 I.P.C. are lacking in the evidence adduced by the prosecution. 8. No satisfactory explanation has been given by Mehtar P.W.3 for not lodging the F.I.R. on the some day. His testimony in paragraph 9 clearly shows that on his way back, he did not inform the Punch. Patel or Kotwar about the incident. The testimony of Stamp Vendor Ramswaroop P.W.6 also lends support to the defence version that Mehtar had borrowed money form Rikhiram. His testimony in paragraph 9 clearly shows that on his way back, he did not inform the Punch. Patel or Kotwar about the incident. The testimony of Stamp Vendor Ramswaroop P.W.6 also lends support to the defence version that Mehtar had borrowed money form Rikhiram. In paragraph 3 he has clearly admitted that Mehtar told him at the time of purchasing the stan1p that he had borrowed a sum of money from Rikhiram for which a stamp was to be executed. The prosecution did not examine the attesting witness Ishwarial who was an attesting witness to the document. Ishwarlal has been examined as defence witness (D.W. 1) and has categorically stated that in his presence Mehtar had received a sum of Rs.5,000/- from Rikhiram and Stamp EX.P.2 was got executed on which he signed as an attesting witness. The defence version thus becomes plausible. It is also pertinent to note that the testimony of Hukumchand P. W. 7 does not, in any manner, show that Rikhiram accompanied Mehtar to his house in Dongargarh for borrowing money which completely renders the testimony of Mehtar P. W.3 that Rikhiram took him is search of money to various persons, false. Similar is the testimony of Suresh Kumar Soni PW.8. Thus the complicity of Mehtar for the offences alleged is extremely doubtful. 9. In Ramesh Babulal Doshi Vs. State of Gujarat, it was held by the Apex Court that while sitting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. In Dhanna etc. Vs. State of Madhya Pradesh, it was held by the Apex Court that while dealing with the an appeal against the acquittal the appellate Court has to bear in mind first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the appellate Court also. In Ajit Savant Majagavi Vs. State of Kamataka, the principles to be borne in mind while sitting in judgment over an acquittal by the trial have been outlined. In Ajit Savant Majagavi Vs. State of Kamataka, the principles to be borne in mind while sitting in judgment over an acquittal by the trial have been outlined. It has been held that in an appeal against acquittal the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. 10. Bearing the above principles in mind and after considering the evidence led by the prosecutions its entirety, the facts and circumstances mentioned above as also the fact that the essential ingredients for proof of guilt under Section 348 and 388 J.P..C. are lacking, I am of the considered opinion that the impugned judgment of acquittal of the respondents/accused under Section 388 and 348 of I.P.C. is well merited and does not call for any interference. In the result, there being no ground whatsoever for granting special leave to appeal, the application filed by the State is dismissed. Application Rejected.