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Madhya Pradesh High Court · body

2009 DIGILAW 1290 (MP)

Ramesh and Two Others v. State of M. P.

2009-11-20

SUSHMA SHRIVASTAVA

body2009
JUDGMENT : Smt . Sushma Shrivastava ,J.: -- Appellantshave preferred this appeal challenging their conviction and order of sentencepassed by Second Additional Sessions Judge, Sidhi inS.T. No. 25/94, decided on 12.04.1999. 2.Appellants have been convicted under Section 326/149 of IPC for causinggrievous hurt to Phoolmati @ Butali and sentenced to rigorous imprisonment for two years with fine of Rs.300/-, indefault further rigorous imprisonment for one month, under Section 323/149 ofIPC for causing hurt to Rampratap and sentenced toimprisonment for six months, under Section 3237 149 of IPC for causing hurt to Urmila Devi and sentenced toimprisonment for six months, under Section 458 of IPC and sentenced to rigorousimprisonment for two years and under Section 147 of IPC and sentenced torigorous imprisonment for six months by the impugned judgment. All thesentences were directed to run concurrently. 3.According to prosecution, on the night intervening 19th and 20th Sept. 1993 atvillage Bhawkhad about 1:30 at night when complainant Rampratap was sleeping in his house, some five-sixpersons jumped into his courtyard from the roof of his house; on hearing thenoise complainant Rampratap lit his torch and sawthat appellants Ramkesh , Vishnudayal and Putlu Jaiswal @ Ramdayal were there with three other unidentified personsand they began assaulting him by lathi . First of all,appellant Vishnudayal gave a lathi blow over his hand with the result that his torch fell down, then appellant Ramkesh caught hold of his neck and appellant Vishnudayal assaulted him by lathi .His wife Phoolmati @ Butali rushed to rescue him, then appellant Putlu @ Ramdayal assaulted her by ‘ Balua ’on her face cutting her cheeks and nose. Complainant Rampratap shouted for help, then his daughter Urmila Devi came there, but she was also assaulted by theappellants and others. She got frightened and moved backwards, then appellants and other assailants gave several lathi blows to complainant Rampratap causing injuries on his right and left hands and in his scapular region. Uponhue and cry, appellants and the other assailants opened the door of the houseand fled away. By that time several people of the village reached there andtook the injured to the Police Station, where complainant Rampratap lodged the FIR. On the basis of his report, an offence was registered againstthe appellants and three other unknown persons and was investigated. Injuredpersons were sent for medical examination. Bloodstained and plain earth was seized from the spot. By that time several people of the village reached there andtook the injured to the Police Station, where complainant Rampratap lodged the FIR. On the basis of his report, an offence was registered againstthe appellants and three other unknown persons and was investigated. Injuredpersons were sent for medical examination. Bloodstained and plain earth was seized from the spot. During investigation, atwelve-bore gun alleged to have been carried by appellant Ramkesh along with his licence was seized from him. The ‘ Balua ’ and lathi used in thecommission of offence were also seized from the appellants and other co-accusedpersons. After due investigation, appellants and three other co-accused personswere prosecuted under Sections 147, 148, 149, 458, 307, 323 of IPC and were putto trial. 4.Appellants and other co-accused persons denied the various charges framedagainst them and pleaded false implication due to enmity. 5.Learned Additional Sessions Judge, after trial and upon appreciation of theevidence adduced in the case, acquitted the three co-accused persons, namely, Raju , Jagdish and Balakram of all the charges, also acquitted appellants Ramkesh , Vishnudayal and Putlu @ Ramdayal of the chargesunder Sections 148, 307 and 3077 149 of IPC, but found them guilty forcommission of offences under Sections 147,458,326/149 and under Sections323/149 of IPC on two counts, convicted and sentenced them as aforesaid by theimpugned judgment, which has been challenged in this appeal. 6.Appeal is preferred inter alia on the ground that theTrial Court erroneously convicted the appellants for the various offences onthe unreliable testimony of the partisan witnesses and failed to consider thattheir evidence was full of contradiction and improvements and no reliance couldbe placed on such evidence and it ignored the fact that the appellants were falselyimplicated due to enmity. 7.Learned counsel for the State, on the other hand, justified and supported theconviction of the appellants. 8.Record of the lower Court is perused. The conviction of the appellants is basedmainly on the testimony of complainant Rampratap (P.W-1), his wife Phoolmati @ Butali (P.W-2) and his daughter Urmila Devi (P. W-3) coupled with the evidence of Ramsagar (P.W-5) and the medical evidence of Dr. O.P. Jha (P.W-6). 9.Complainant Rampratap (P.W-1) deposed in his evidencethat at the relevant time around 1:30 or 2 o’clock in the night when he wassleeping in his house with his family, a few persons came into his courtyard byriding over the tiles of the roof. O.P. Jha (P.W-6). 9.Complainant Rampratap (P.W-1) deposed in his evidencethat at the relevant time around 1:30 or 2 o’clock in the night when he wassleeping in his house with his family, a few persons came into his courtyard byriding over the tiles of the roof. On hearing the noise, he lit his torch andsaw that appellants Ramkesh , Vishnudayal & Putlu @ Ramdayal werethere with three other unknown persons. According to Rampratap (P.W-1), appellant Ramkesh was carrying a gun, Vishnudayal was carrying a ‘ gandasa ’and Putlu @ Ramdayal andothers were holding lathi ; appellant Ramkesh and Putlu caught hold himand began assaulting him by lathi causing injuries onhis hands and head; appellant Vishnudayal alsoassaulted his wife by means of ‘ gandasa ’ cutting hercheek; one of the assailants also assaulted his daughter Urmila Devi , when she shouted for help, the villagers camethere, then appellants fled away. He then went to Police Station, Marda along with Ramsagar andother villagers and lodged the FIR (Ex.P-1). 10.Complainant Rampratap (P.W-1) was cross-examined atlength. He was also confronted with the FIR (Ex.P-1), which was admittedlylodged by him. There was absolutely no mention in the FIR (Ex.P-1) of the factsstated in his evidence that appellant Ramkesh washaving gun, appellant Vishnudayal had ‘ gandasa ’ and appellant Ramdayal had lathi with him. There was also no mention in theFIR (Ex.P-1) of his statement made before the Court that appellant Vishnudayal had assaulted his wife Phoolmati @ Butali by means of ‘ gandasa ’. Onthe other hand, in the FIR (Ex.P-1) the assailant of his wife Phoolmati @ Butali was shown tobe appellant Putlu @ Ramdayal causing injuries to his wife by means of ‘ Balua ’whereas in his oral evidence appellant Putlu @ Ramdayal is said to have been carrying lathi .Complainant Rampratap (P.W-1) was also confrontedwith his Police statement (Ex.D-1) as to the omission of his statement thatappellant Vishnudayal was carrying ‘ gandasa . He was also contradicted with his police statement(Ex.D-1) where he gave a different and contradictory version about appellant Vishnudayal carrying a lathi and Putlu carrying a ‘ Balua ’. 11.It is thus apparent from the aforesaid contradictions and material omissionsbrought on record that complainant Rampratap (P.W-1)has tried to make an improvement in his statement before the Court and made acompletely distorted version as against the facts mentioned in the FIR. 11.It is thus apparent from the aforesaid contradictions and material omissionsbrought on record that complainant Rampratap (P.W-1)has tried to make an improvement in his statement before the Court and made acompletely distorted version as against the facts mentioned in the FIR. He alsocategorically admitted in his evidence that there was a dispute of land betweenhim and appellant Ramkesh and the litigation was alsogoing on since long. Admittedly, there was enmity between complainant Rampratap and appellant Ramkesh ,who are real brothers and appellants No.2 and 3 are sons of appellant Ramkesh . 12.The evidence of Phoolmati @ Butali (P.W-2), the wife of the complainant also suffers from the similar infirmities. Phoolmati @ Butali (P.W-2)also deposed in her evidence that when some persons emerged in her courtyard,she and her husband had seen appellants Rameksh , Vishnudayal and Putlu @ Ramdayal in the torch light. According to Phoolmati @ Butali (P.W-2),appellant Ramkesh was carrying a gun, appellant Putlu @ Ramdayal was holding a lathi and appellant Vishnudayal was having ‘ gandasa -’, and strangely enough as perher statement, appellant Vishnudayal had assaultedher by means of ‘ Balua ’. Phoolmati @ Butali (P.W-2) was also confronted with her policestatement (Ex.D-2) and she completely denied to have given the statement as perEx.D-2 to the Police, where she has given quite a different and contraryversion. 13. Phoolmati @ Butali (P.W-2)also deposed in her cross-examination that before her husband could find outthe torch, the three persons began assaulting her husband by grappling withhim, which also creates a reasonable doubt as to how could she identify thethree appellants in the dark before her husband could find the torch and litit. The evidence of Urmila Devi (P.W-3), the daughter of complainant also indicates that at the time of marpeet it was complete dark and there was no electricityin the house, nor any lamp was lit. Therefore, her statement that appellants Ramkesh , Vishnudayal and Putlu @ Ramdayal wererespectively carrying gun, ‘ gandasa , and lathi with them and appellant Vishnudayal assaulted her mother on her cheek and assaulted her father, as well as thestatement of her mother Phoolmati @ Butali (P.W-2) and that of her father (P. W-1) that theyhad seen the appellants in their courtyard, becomes quite doubtful andsuspicious. 14. 14. Urmila Devi (P.W-3) wasalso confronted and contradicted with her Police statement (Ex.D-3), withregard to varying statement given by her, which also indicates that she was notmaking the correct version. More so, she admitted in her cross examination thather mother had gone to the house of Suresh and she had seen the injuries on thecheek of her mother at the house of Suresh itself, therefore, her statementwitnessing appellant Vishnudayal assaulting hermother by means of ‘ gandasd ’ also becomes doubtfuland unreliable. She also admitted in her cross-examination that her husband hadturned her out of his house and her husband and father had strained relations.Her last statement made in the end of her cross-examination, that due to darknight she could not see the faces of the other assailants, is also fatal anddamaging to the veracity of deposition made by her against the appellants. 15.Another witness Ramsagar (P.W-5), who tried to deposethat soon after the incident, injured Rampratap hadtold him that appellants Ramkesh , Vishnudayal and Putlu @ Ramdayal haddone marpeet with him, is also found to be unreliablein view of the omission of this fact in his police statement (Ex.D-4) withwhich he was confronted. This witness Ramsagar (P.W-5) was also contradicted with other parts of his police statement(Ex.D-4), where he had made a different version. 16.Needless to add that another witness Ramji (P.W-4)has not supported the case of the prosecution regarding implication of theappellants in the occurrence, though he was declared hostile by theprosecution. 17.Be that as it may, in the wake of foregoing discussion, the evidence of Rampratap (P. W-1) and his wife Phoolmati @ Butali (P.W-2) and of his daughter Urmila Devi (P.W-3) as well asthat of Ramsagar (P.W-5) is not found to bedependable and acceptable against the appellants beyond all reasonable doubts.In view of the enmity on account of land dispute, the possibility of falseimplication of the appellants, cannot be ruled out. 18.It is significant to note that when the aforesaid related witnesses madeimprovements in their statements and gave contrary and improved version in onetone as against initial version made by the complainant in the FIR (Ex.P-1),the possibility of naming the appellants in the FIR (Ex.P-1) afterdeliberations cannot be ruled out. 18.It is significant to note that when the aforesaid related witnesses madeimprovements in their statements and gave contrary and improved version in onetone as against initial version made by the complainant in the FIR (Ex.P-1),the possibility of naming the appellants in the FIR (Ex.P-1) afterdeliberations cannot be ruled out. Apposite to point out that the FIR (Ex.P-1)was lodged in the morning at 9.30 a.m. ,while the incident took place in the midnight .Obviously, there was time for deliberation and calculation so as to implicatethe appellants because of enmity. 19.In the wake of aforesaid, the evidence of the aforesaid witnesses, which is notfound to be dependable and acceptable beyond reasonable doubt, could not formthe basis of conviction of the three appellants for any of the offences chargedagainst them. As such the conviction of the appellants for the various offencescannot be safely maintained and deserves to be set aside. 20.Appeal is, therefore, allowed. The conviction of the appellants Ramkesh , Vishnudayal and Putlu @ Ramdayal under Sections326/149, 323/149, 323/149, 147 and 458 of IPC and the various sentences passed thereunder are hereby set aside. Appellants are acquittedof the aforesaid charges. Appellants are on bail. Their bail bonds shall standdischarged.