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Madhya Pradesh High Court · body

2009 DIGILAW 1114 (MP)

State Of M. P. v. Chandan Singh

2009-09-10

K.S.CHAUHAN

body2009
JUDGMENT : This criminal appeal under section 378(i) and (iii) of the Code of Criminal Procedure has been preferred by the State of Madhya Pradesh being aggrieved by the impugned judgment dated 5-2-2000 passed by the Sessions Judge, Raisen in S.T. No. 41/97, whereby the respondents have been acquitted from the charges under sections 323/34, 325/34 and 506 Part-II of Indian Penal Code. 2. The prosecution case in short is that Bhojraj r/o Village Sadrai lodged F.I.R. at police station Deori on 16-7-1996 at 22:30 to the effect that on that day at about 12 noon he was returning to his house after worshipping God. As soon as he reached in front of his house Brijlal Lodhi abused him and asked as to why he threw garbage (Ghura) in his field. He inflicted lathi blow at his head. Other respondents who were hiding there in a hut came there and assaulted him with lathi on account of which he received injuries. His mother Parwati Bai and sister Bhuri Bai also sustained injuries. Kodulal and Ramesh Lodhi saved him. On the basis of this report Crime No. 81/96 under sections 323, 324, 294, 325 and 506/34 of Indian Penal Code was registered. The injured persons were sent for medical examination. The injuries were found on their persons as mentioned in the medical reports. Bhuri Bai sustained fracture in the forearm of her right hand. The map was prepared. The accused persons were arrested. The lathis were recovered from the respondents. Statements of the witnesses were recorded. After completing the investigation the charge-sheet under sections 323, 324, 325, 294, 506-B, 34 of Indian Penal Code was filed in the Court of Judicial Magistrate First Class, Udaipura. The case was committed to the Sessions Court under section 323 of Criminal Procedure Code because the counter case was exclusively triable by Sessions Court. 3. The respondents were charged under section 323/34 (two counts), 325/34 and 506 Part-II of Indian Penal Code. They denied the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated. Their defence was that the complainant party caused marpeet of Bhojraj S/o Brijlal for which the matter was reported to the concerned police. As a counter-blast the report was lodged by the complainant. Prosecution examined as many as 9 witnesses and the respondents also examined one witness. Their defence was that the complainant party caused marpeet of Bhojraj S/o Brijlal for which the matter was reported to the concerned police. As a counter-blast the report was lodged by the complainant. Prosecution examined as many as 9 witnesses and the respondents also examined one witness. After appreciating the evidence they were not found guilty and hence acquitted from the charges levelled against them. Being aggrieved by the impugned judgment of acquittal, the instant appeal has been preferred by the State of Madhya Pradesh after taking leave from this Court on the grounds mentioned in the memo of appeal. 4. Shri G. P. Singh, learned Deputy Government Advocate appearing on behalf of the appellant/State submitted that the trial Court has not appreciated the evidence in proper perspective. There is ocular and medical evidence to establish that the respondents caused marpeet of Bhojraj, Parwati Bai and Bhuri Bai on account of which they sustained injuries. Bhuri Bai also sustained fracture. The prosecution has proved the case beyond reasonable doubt in spite of the trial Court has acquitted them. The finding of the Court below is erroneous which deserves to be set aside and the respondents be convicted and sentenced. 5. On the contrary, Shri R. P. Khare, learned counsel for the respondents supported the impugned judgment mainly contending that there are several contradictions and omissions in the prosecution evidence. The Court below has rightly held that the complainant party was the aggressor. The Court has appreciated the evidence in proper perspective and has rightly acquitted the respondents from the charges levelled against them hence does not call for any interference. 6. The main point for consideration in this appeal is that whether the Court below has committed any illegality in acquitting the respondents from the charge under section 323/34 (two counts) and 325/34 and 506 Part-II of Indian Penal Code. 7. Bhojraj Singh (PW-1), Parwati Bai (PW-4) and Bhuri Bai (PW-6) are injured persons. They have deposed that respondents caused their marpeet by lathis on account of which they sustained injuries. Their evidence have been supported by Kodulal (PW-2) and Phool Singh (PW-3) The report was lodged by Bhojraj Singh (PW-1) which was written by Pankaj Dixit (PW-8). The injured persons were sent for medical examination to P.H.C. Deori. They were examined by Dr. They have deposed that respondents caused their marpeet by lathis on account of which they sustained injuries. Their evidence have been supported by Kodulal (PW-2) and Phool Singh (PW-3) The report was lodged by Bhojraj Singh (PW-1) which was written by Pankaj Dixit (PW-8). The injured persons were sent for medical examination to P.H.C. Deori. They were examined by Dr. Kamlesh Silawat (PW-7) and found injuries on the person of Parwati Bai, Bhuri Bai and Bhojraj Singh as detailed in medical reports Ex.P-5A to Ex.P-7A respectively. He also found fracture in the forearm of right hand of Bhuri Bai. X-ray report is Ex.P-8 and x-ray plate is Ex.P-9. 8. Lengthy and piercing cross-examination has been done to the prosecution witnesses. Some contradictions and omissions have been brought on record in their evidence. These witnesses have denied the defence version that the complainant party caused injuries to Bhojraj s/o Brijlal when he was going to take bath. The respondents have adduced evidence of Sitaram (DW-1) in support of their defence. 9. On critical appraisal of the prosecution evidence it appears that the prosecution is suppressing the genesis of crime. The real cause of this incidence is not shown. As per F.I.R. (Ex.P-2) the cause was that Brijlal asked complainant as to why he has thrown garbage (ghura) in his field whereas complainant Bhojraj Singh has denied this cause of incident in his evidence before the Court. He has given another cause that his parents and brother were sent to jail on the report lodged by Brijlal in connection of demand of dowry. After 3 days when they released on bail. Brijlal Lodhi assumed that Bhojraj Singh has managed to get them released on bail. Therefore, he quarrelled with him and caused marpeet. This cause does not find place in police report (Ex.P-1) and police statement (Ex.D-1). He has also deposed another fact that Brijlal Lodhi said that he will beat him on that day why he will say so without any reason. Thus complainant Bhojraj Singh is giving different versions regarding the cause of the crime. This cause does not find place in police report (Ex.P-1) and police statement (Ex.D-1). He has also deposed another fact that Brijlal Lodhi said that he will beat him on that day why he will say so without any reason. Thus complainant Bhojraj Singh is giving different versions regarding the cause of the crime. It appears that he is doing so because Bhojraj S/o Brijlal Lodhi also lodged a report regarding causing his marpeet by the complainant party on the basis of which Crime No. 80/96 under sections 147, 148, 149, 307/34 of Indian Penal Code was registered against Halkeveer, Boreveer, Bhojraj, Kuddu and Phool Singh and in the F.I.R. of that case it has been mentioned that when Bhojraj S/o Brijlal was going to take bath these all persons belonging to complainant party assaulted him with gadna and lathi on account of which he sustained the injuries. This is also the reason that the complainant Bhojraj has changed the place of occurrence because according to F.I.R. (Ex.P-1) the place of occurrence was in front of his house whereas according to his evidence it was in front of the house of Girdhar Pawaiya. The incident in the F.I.R. lodged by Bhojraj Lodhi is shown in front of the house of Girdhar. Thus the incident did not take place in front of the house of complainant Bhojraj Singh but occurred in front of the house of Girdhari. The case of the respondents is that the complainant party assaulted Bhojraj Lodhi at this place. In such situation the finding of the trial Court that complainant-party was aggressor cannot be said to be improper. 10. Apart from it some contradictions and omissions have been brought on record in the statements of Bhojraj Singh (PW-1), Kodulal (PW-2) and Bhuri Bai (PW-6) from their police statements Ex.D-1 to Ex.D-3 respectively which materially affects the prosecution case. As per F.I.R. Ex.P-1 Parwati Bai and Bhuri Bai received injuries while rescuing the complainant Bhojraj Singh. It is nowhere mentioned in the F.I.R. that they were also beaten by the respondents. But in the statements before the Court they deposed that they were also beaten by the respondents. They have improved their version with respect to causing injury by individual person. Kodulal and Phool Singh are partisan witnesses. They are also facing trial under section 307, Indian Penal Code along with complainant Bhojraj Singh and his father Halkeveer. But in the statements before the Court they deposed that they were also beaten by the respondents. They have improved their version with respect to causing injury by individual person. Kodulal and Phool Singh are partisan witnesses. They are also facing trial under section 307, Indian Penal Code along with complainant Bhojraj Singh and his father Halkeveer. No independent witness has supported the prosecution case. The incident is of day time which might have been witnessed by several persons but only the interested witnesses are giving evidence against the respondents. Dr. Kamlesh Silawat (PW-7) has admitted that injury to Bhuri Bai may be caused by fall, injury to Parwati Bai may be self inflicted and injury to Bhojraj may be sustained in grappling with each other. Thus the possibility of receiving injuries in such manner cannot be ruled out. 11. Trial Court has dealt with every aspect in great detail and has rightly acquitted the respondents. It is established principle of law that when two views are possible, then the view taken by the trial Court be accepted. In the case of M. S. Narayan Menon vs. State of Kerala, (2006) 6 SCC 39 the Apex Court has held that where two views possible, appellate Court should not interfere with finding of acquittal recorded by Court below. Similarly in the case of Budh Singh vs. State of U.P., (2006) 9 SCC 731 , it was held that the view of the trial Court having regard to the facts and circumstances of the case was a possible view, which should not have been interfered with by the High Court. 12. For the foregoing reasons, I find that the order of acquittal passed by Court below is just and proper which does not call for interference. The appeal is meritless and deserves to be dismissed. 13. Consequently, the appeal fails and is dismissed accordingly. The respondents are on bail. Their bail bonds are discharged.