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Madhya Pradesh High Court · body

2009 DIGILAW 1291 (MP)

Ramkesh and two v. State of M. P.

2009-11-20

SUSHMA SHRIVASTAVA

body2009
JUDGMENT Sushma Shrivastava, J. 1. Appellants have preferred this appeal challenging their conviction and order of sentence passed by Second Additional Sessions Judge, Sidhi in S.T. No. 25/94, decided on 12.04.1999. 2. Appellants have been convicted under Section 326/149 of IPC for causing grievous hurt to Phoolmati @ Butali and sentenced to rigorous imprisonment for two years with fine of Rs. 300/-, in default further rigorous imprisonment for one month, under Section 323/149 of IPC for causing hurt to Rampratap and sentenced to imprisonment for six months, under Section 323/149 of IPC for causing hurt to Urmila Devi and sentenced to imprisonment for six months, under Section 458 of IPC and sentenced to rigorous imprisonment for two years and under Section 147 of IPC and sentenced to rigorous imprisonment for six months by the impugned judgment. All the sentences were directed to run concurrently. 3. According to prosecution, on the night intervening 19th and 20th Sept. 1993 at village Bhawkhad about 1:30 at night when complainant Rampratap was sleeping in his house, some five-six persons jumped into his courtyard from the roof of his house; on hearing the noise complainant Rampratap lit his torch and saw that appellants Ramkesh, Vishnudayal and Putlu Jaiswal @ Ramdayal were there with three other unidentified persons and 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 Phoolmanti @ 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 the appellants 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. Upon hue and cry, appellants and the other assailants opened the door of the house and fled away. By that time several people of the village reached there and took the injured to the Police Station, where complainant Rampratap lodged the FIR. On the basis of his report, an offence was registered against the appellants and three other unknown persons and was investigated. By that time several people of the village reached there and took the injured to the Police Station, where complainant Rampratap lodged the FIR. On the basis of his report, an offence was registered against the appellants and three other unknown persons and was investigated. Injured persons were sent for medical examination. Blood stained and plain earth was seized from the spot. During investigation, a twelve-bore gun alleged to have been carried by appellant Ramkesh alongwith his licence was seized from him. The 'Balua' and lathi used in the commission of offence were also seized from the appellants and other co-accused persons. After due investigation, appellants and three other co-accused persons were prosecuted under Section 147, 148, 149, 458, 307, 323 of IPC and were put to trial. 4. Appellants and other co-accused persons denied the various charges framed against them and pleaded false implication due to enmity. 5. Learned Additional Sessions Judge, after trial and upon appreciation of the evidence 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 charges under Section 148, 307 and 307/149 of IPC, but found them guilty for commission of offences under Section 147, 458, 326/149 and under Section 323/149 of IPC on two counts, convicted and sentenced them as aforesaid by the impugned judgment, which has been challenged in this appeal. 6. Appeal is preferred inter alia on the ground that the trial court erroneously convicted the appellants for the various offences on the unreliable testimony of the partisan witnesses and failed to consider that their evidence was full of contradiction and improvements and no reliance could be placed on such evidence and it ignored the fact that the appellants were falsely implicated due to enmity. 7. Learned Counsel for the State, on the other hand, justified and supported the conviction of the appellants. 8. Record of the lower court is perused. The conviction of the appellants is based mainly 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. 8. Record of the lower court is perused. The conviction of the appellants is based mainly 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 evidence that at the relevant time around 1:30 or 2 O'clock in the night when he was sleeping in his house with his family, a few persons came into his courtyard by riding over the tiles of the roof. On hearing the noise, he lit his torch and saw that appellants Ramkesh, Vishnudayal & Putlu @ Ramdayal were there 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 and others were holding lathi; appellant Ramkesh and Putlu caught hold him and began assaulting him by lathi causing injuries on his hands and head; appellant Vishnudayal also assaulted his wife by means of 'gandasa' cutting her cheek; one of the assailants also assaulted his daughter Urmila Devi, when she shouted for help, the villagers came there, then appellants fled away. He then went to Police Station Marda alongwith Ramsagar and other villagers and lodged the FIR (Ex.P-1). 10. Complainant Rampratap (P.W-1) was cross-examined at length. He was also confronted with the FIR (Ex.P-1), which was admittedly lodged by him. There was absolutely no mention in the FIR (Ex.P-1) of the facts stated in his evidence that appellant Ramkesh was having gun, appellant Vishnudayal had 'gandasa' and appellant Ramdayal had lathi with him. There was also no mention in the FIR (Ex.P-1) of his statement made before the Court that appellant Vishnudayal had assaulted his wife Phoolmati @ Butali by means of 'gandasa'. On the other hand, in the FIR (Ex.P-1) the assailant of his wife Phoolmati @ Butali was shown to be 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 confronted with his Police statement (Ex.D-1) as to the omission of his statement that appellant Vishnudayal was carrying 'gandasa. Complainant Rampratap (P.W-1) was also confronted with his Police statement (Ex.D-1) as to the omission of his statement that appellant 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 omissions brought on record that complainant Rampratap (P.W-1) has tried to make an improvement in his statement before the court and made a completely distorted version as against the facts mentioned in the FIR. He also categorically admitted in his evidence that there was a dispute of land between him and appellant Ramkesh and the litigation was also going 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 per her statement, appellant Vishnudayal had assaulted her by means of 'Balua'. Phoolmati @ Butali (P.W-2) was also confronted with her police statement (Ex.D-2) and she completely denied to have given the statement as per Ex.D-2 to the Police, where she has given quite a different and contrary version. 13. Phoolmati @ Butali (P.W-2) also deposed in her cross-examination that before her husband could find out the torch, the three persons began assaulting her husband by grappling with him, which also creates a reasonable doubt as to how could she identify the three appellants in the dark before her husband could find the torch and lit it. 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 electricity in the house, nor any lamp was lit. 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 electricity in the house, nor any lamp was lit. Therefore, her statement that appellants Ramkesh, Vishnudayal and Putlu @ Ramdayal were respectively carrying gun, 'gandasa, and lathi with them and appellant Vishnudayal assaulted her mother on her cheek and assaulted her father, as well as the statement of her mother Phoolmati @ Butali (P.W-2) and that of her father (P.W-1) that they had seen the appellants in their courtyard, becomes quite doubtful and suspicious. 14. Urmila Devi (P.W-3) was also confronted and contradicted with her Police statement (Ex.D-3), with regard to varying statement given by her, which also indicates that she was not making the correct version. More so, she admitted in her cross-examination that her mother had gone to the house of Suresh and she had seen the injuries on the cheek of her mother at the house of Suresh itself, therefore, her statement witnessing appellant Vishnudayal assaulting her mother by means of 'gandasa' also becomes doubtful and unreliable. She also admitted in her cross-examination that her husband had turned 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 dark night she could not see the faces of the other assailants, is also fatal and damaging to the veracity of deposition made by her against the appellants. 15. Another witness Ramsagar (P.W-5), who tried to depose that soon after the incident, injured Rampratap had told him that appellants Ramkesh, Vishnudayal and Putlu @ Ramdayal had done marpeet with him, is also found to be unreliable in view of the omission of this fact in his police statement (Ex.D-4) with which 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 the appellants in the occurrence, though he was declared hostile by the prosecution. 17. 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 the appellants in the occurrence, though he was declared hostile by the prosecution. 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 as that of Ramsagar (P.W-5) is not found to be dependable and acceptable against the appellants beyond all reasonable doubts. In view of the enmity on account of land dispute, the possibility of false implication of the appellants, cannot be ruled out. 18. It is significant to note that when the aforesaid related witnesses made improvements in their statements and gave contrary and improved version in one tone 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) after deliberations 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 implicate the appellants because of enmity. 19. In the wake of aforesaid, the evidence of the aforesaid witnesses, which is not found to be dependable and acceptable beyond reasonable doubt, could not form the basis of conviction of the three appellants for any of the offences charged against them. As such the conviction of the appellants for the various offences cannot 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 Section 326/149, 323/149, 323/149, 147 and 458 of IPC and the various sentences passed thereunder are hereby set aside. Appellants are acquitted of the aforesaid charges. Appellants are on bail. Their bail bonds shall stand discharged.