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2009 DIGILAW 147 (CHH)

PADUM SONI v. NAKCHHED PRASAD

2009-04-29

D.R.DESHMUKH

body2009
ORDER 1. Complainant Padum Soni has preferred this criminal revision against the judgment dated 30-12-2005 delivered in Sessions Trial No.115/2000 by the Additional Sessions Judge, Janjgir, whereby non-applicants No.1 to 6 were acquitted of the charge under Sections 147, 148, 458, 294, 325 and 323 read with Section 149 of the I.P.C. 2. Briefly stated the prosecution story is that Narayan Prasad Soni P.W.6, Ghanshyam P.W.-3, Komal Soni P.W.-2 and Gopal Prasad Soni P.W.-9 are the real brothers of Padum Soni P.W.-l. At about 3 P.M. on 25-2-1998 one Subhash Soni had threatened to kill Padum Soni P.W.-l if he did not withdraw from the prosecution launched against non-applicants No.1 to 6. At about 9 P.M. on 25-2-1998, non-applicants No.1 to 6 with Subhash Soni formed an unlawful assembly and while being armed with Lathis and in furtherance of the common intention thereof broke open the door of the dwelling house of Pad urn Soni P.W.1 and assaulted Narayan Prasad Soni P.W.-6, Ghanshyam P.W.-3, Gopal Prasad Soni P.W.-9 and Komal Soni P.W.-2. Independent witnesses Netram P.W.-4, Banmali P.W.- 5 and Santosh P.W. -7 saw the occurrence. F.I.R. ExP -1 was lodged at P.S. Champa by Padum Soni P.W.-l at 9: 15 P.M. On medical examination, Dr.V.K.Agrawal P.W.-10 found a red contusion with defused swelling 5cmsx2cms on the left side of neck at base of Gopal Prasad Soni P.W. -9, who also complained of pain at the right arm and left thigh though no external injury was present. X-ray report Ex.P-l0 revealed that Gopal Prasad Soni P.W.-9 had sustained fracture at left clavicle. Komal Soni P.W.-2 had sustained an abrasion 3cmsx2cms on the right side of forehead and another abrasion 1cmx 1cm above it. Ghanshyam P.W.3 had sustained a contusion 3cmsx2cms on the right elbow joint. Narayan Prasad Soni P.W.-6 had sustained a colourless hematoma 4cmsx2cms on the right side of scalp. X-ray report did not reveal any fracture. Thus, injuries sustained by Narayan Prasad Soni P.W.-6, Komal Soni P.W.-2 and Ghanshyam P.W.-3 were simple in nature. The broken entrance door was seized on 25-2-1998 vide Ex.P-6 and immediately given on Supurdnama to Padum Soni P.W.-l. After completion of investigation, prosecution was launched against non-applicants No.1 to 6 for the offences mentioned in paragraph 1 supra. 3. Non-applicants No.1 to 6 abjured the guilt and pleaded false implication. The prosecution examined as many as 11 witnesses. The broken entrance door was seized on 25-2-1998 vide Ex.P-6 and immediately given on Supurdnama to Padum Soni P.W.-l. After completion of investigation, prosecution was launched against non-applicants No.1 to 6 for the offences mentioned in paragraph 1 supra. 3. Non-applicants No.1 to 6 abjured the guilt and pleaded false implication. The prosecution examined as many as 11 witnesses. Constable Vasudeo Rajput D.W.-l, Patwari Syed Abdul Rashid D.W.-2, Dr. R.K.Chandra D.W.-3 and Deepak Singh D.W.-4. were examined by the defence. 4. The learned Additional Sessions Judge acquitted non-applicants No.1 to 6 on following grounds: (i) Material contradictions existed in the testimony of Padum Soni P.W.-l, Komal Soni P.W.-2, Ghanshyam P.W.-3, Gopal Prasad Soni P.W.-9 and Narayan Prasad Soni P.W.-6 relating to the weapon of offence possessed and used by non-applicants No.1 to 6 at the time of occurrence. (ii) It was not in dispute that there was previous enmity between the parties and on report a criminal prosecution was pending against Padum Soni P.W.-1 and his brothers. (iii) Independent witnesses Netram P.W.-4, Banmali P.W.-5 and Santosh P.W.-7 did not support the prosecution story. (iv) Two Police Constables Vasudeo Rajput D.W.-1 and Ganga Singh Dhruw, who were present at the spot according to Padum Soni P.W.-1, were neither cited nor examined by the prosecution. Constable Vasudeo Rajput D.W.-1 was examined as a defence witness. His testimony revealed that the occurrence had taken place near Babuji School and not inside the house of Padum Soni P.W.-1. The testimony of Patwari Syed Abdul Rashid D.W.-2 also created a serious doubt about the place of occurrence. (v) Seizure of door by Inspector Larang Ram P.W.-11 was doubtful as the door was not produced before the Court and was given on Supurdnama without Court orders. Thus, material evidence of house breaking was not adduced by the prosecution. (vi) The testimony of Dr. V.K.Agrawal P.W.-10 rendered it highly doubtful that x-ray plate Ex.P-9A pertained to the injury sustained by Gopal Prasad Soni P.W.-9. Thus, it was extremely doubtful that Gopal Prasad Soni P.W.-9 had sustained grievous injury at the occurrence. 5. Thus, material evidence of house breaking was not adduced by the prosecution. (vi) The testimony of Dr. V.K.Agrawal P.W.-10 rendered it highly doubtful that x-ray plate Ex.P-9A pertained to the injury sustained by Gopal Prasad Soni P.W.-9. Thus, it was extremely doubtful that Gopal Prasad Soni P.W.-9 had sustained grievous injury at the occurrence. 5. Shri F.S.Khare, learned counsel for the petitioner argued that the rejection of the testimony of Padum Soni P.W. -1, Komal Soni P.W. -2, Ghanshyam P.W.-3, Gopal Prasad Soni P.W.-9 and Narayan Prasad Soni P.W.-6 by the trial Court on the mere ground that it was not corroborated by independent witnesses Netram P.W.-4, Banmali P.W.-5 and Santosh P.W.-7 was contrary to law. Unless the trial Judge recorded a finding that the testimony of Padum Soni P.W.-1, Komal Soni P.W.-2, GhanshyamP.W.-3, Gopal Prasad Soni P.W.-9 and Narayan Prasad Soni P.W.-6 stood rebutted in cross-examination or was contradicted in material particulars, it ought not to have disbelieved them on the sole ground that their testimony was not supported by independent witnesses. Mere animosity with non-applicants No.1 to 6 was also no ground for rejecting the testimony of the above witnesses. Reliance was placed on Anil Rai Vs. Stata of Bihar1. The occurrence had taken place inside the house of Padum Som P.W.-1 about 9 P.M. and, therefore, the mere fact that the above mentioned witnesses were not able to correctly depose as to what weapons were being carried or used by each of non-applicants No.1 to 6, would not render their testimony unworthy of credit. On these premises, it was urged that it was a fit case in which the matter should be remanded to the learned Additional Sessions Judge, Janjgir for pronouncing judgment after appreciating the testimony of Padum Som P.W.-1, Komal Soni P.W.-2, Ghanshyam P.W.-3, Gopal Prasad Soni P.W.-9 and Narayan Prasad Soni P.W.-6. 6. On the other hand, Shri Siddharth Rathod, learned counsel for non-applicants No.2 and 4 and Shri Varun Sharma, Advocate also appearing for respondent No.4 argued that the presumption of innocence of non-applicants No.1 to 6 was strengthened by their acquittal by the learned Additional Sessions Judge and was not liable to be interfered with while exercising revisional jurisdiction unless it was shown that the impugned judgment was perverse or founded on misreading of evidence. It was also argued that the revisional jurisdiction conferred on the High Court was not to be lightly exercised when it was invoked by a private complainant against an order of acquittal against which the State had a right of appeal. Reliance was placed on D. Stephens Vs. Nosibolla2, K. Chinnaswamy Reddy Vs. State of Andhra Pradesh3, Mahendra Pratap Singh Vs. Sarju Singh & anr. 4, Khetrabasi Samual etc. Vs. The State of Orissa 5 and State of Kerala Vs. Puttumana Illath Jathavedan Namboodin-6. It was also urged that respondent No.4 Laxmi Prasad had by examining Sub-Divisional Magistrate Deepak Singh D.W.-4 had proved that at the time of occurrence he was on election duty in Korba. No explanation was offered by the prosecution for the serious injuries sustained by Vijay and Ashok. The trial Court was wholly justified in drawing an inference that the prosecution story was doubtful on the grounds that there was material discrepancy as to the place of occurrence, independent witnesses had not supported the prosecution story and the testimony of Constable Vasudeo Rajput D.W.-1, who was admittedly present at the spot revealed that occurrence did not take place inside the house of Padum Soni P.W.-1. On these premises, it was urged that the impugned judgment did not call for any interference in exercise of revisional jurisdiction. 7. Having considered the rival submissions, I have perused the record with utmost circumspection. Dr. V.K.Agrawal P.W.-10 has admitted in para 16 that x-ray plate Ex.P-9A did not bear the number of-x-ray. The Register of x-rays was not produced. Thus, it was extremely doubtful that Gopal Prasad Soni P.W.9 had sustained a grievous injury in the occurrence. 8. Even according to Padum Soni P.W.-1, Constable Vasudeo Rajput D.W.-1 had been sent by the police to guard his house. This witness was not examined by the prosecution and was examined as a defence witness. His presence at the place of occurrence being undisputed, his testimony would reveal that a quarrel had ensued between Padum Soni P. W.-1 and his brothers on one hand and non-applicants No.1 to 6 on the other near Babuji School. Thus, it is rendered extremely doubtful that the occurrence took place as alleged by the prosecution inside the house of Padum Soni P.W.-1. Thus, it is rendered extremely doubtful that the occurrence took place as alleged by the prosecution inside the house of Padum Soni P.W.-1. No explanation was offered by Inspector Larang Ram P.W.-11 for not producing the broken entrance door of the house of Padum Soni P.W.-1 before the Court or for returning it on Supurdnama without seeking orders from the Magistrate. It is not in dispute that independent witnesses Netram P.W.-4, Banmali P.W.-5 and Santosh P.W.-7 did not support the prosecution story. 9. Another fact that merited consideration by the trial Judge is that on 25-2-1998 non-applicants Vijay and Ashok had also sustained injuries. Vijay had sustained as many as 7 injuries while Ashok had sustained 2 injuries on his person. Komal Soni P.W.-2 showed complete ignorance about the injuries sustained by Vijay and Ashok. Ghanshyam P.W.- 3 did not deny in para 9 that prosecution was launched against him and his brothers for assaulting non-applicants No.1 to 6 at the time of occurrence. It would thus appear that the genesis of the offence had been suppressed by the prosecution and it is extremely doubtful whether the occurrence took place inside the house of Padum Soni P.W.-l. The possibility that an altercation took place between the parties near Babuji School in which both the parties assaulted each other could not be ruled out. This renders the testimony of Padum Soni P.W.-l, Komal Soni P.W.-2, Ghanshyam P.W.-3, Gopal Prasad Soni P.W.-9 and Narayan Prasad Soni P.W.-6 that non-applicants No.1 to 6 had after breaking open the door of their dweling house assaulted Narayan Prasad Soni P.W.-6, Gopal Praaad Soni P.W.-9, Komal Soni P.W.-2 and Ghanshyam P.W.-3 inside the house is extremely doubtful. It is in this backdrop that the testimony of Padum Soni P. W.-l, Komal Soni P.W.-2, Ghanshyam P. W.3, Gopal Prasad Soni P.W.-9 and Narayan Prasad Soni P.W.-6 though corroborating each other becomes doubtful giving rise to the need for independent corroboration. Undisputedly Netram P. W.-4, Banmali P.W.-5 and Santosh P.W.7 did not support the prosecution story. It is in this backdrop that the testimony of Padum Soni P. W.-l, Komal Soni P.W.-2, Ghanshyam P. W.3, Gopal Prasad Soni P.W.-9 and Narayan Prasad Soni P.W.-6 though corroborating each other becomes doubtful giving rise to the need for independent corroboration. Undisputedly Netram P. W.-4, Banmali P.W.-5 and Santosh P.W.7 did not support the prosecution story. Constable Vasudeo Rajput D.W.-1, whose presence at the place of occurrence is admitted by Padum Soni P.W.-l, deposed about an altercation between the parties near Babujl School and not inside the house of Padum Soni P.W.-l. Thus, the entire prosecution story as it has been put-forth relating to the house-trespass by non-applicants No.1 to 6 after preparation for causing hurt is rendered doubtful. The prosecution had also failed to prove that x-ray plate Ex.P-9A pertained to the injury sustained by Gopal Prasad Soni P.W.9. The learned Additional Sessions Judge had the benefit of seeing the demeanor of witnesses and had after appreciating the prosecution evidence reached a conclusion that the prosecution story was rendered doubtful for the reasons mentioned in para 4 supra. The conclusions drawn by the learned trial Judge cannot either be said to be perverse or contrary to law. The acquittal of non-applicants No.1 to 6 by the learned trial Judge after appreciation of evidence strengthens the presumption of their innocence and is not to be interfered while exercising revisional jurisdiction especially when no illegality or perversity is shown to exist. 10. For the aforesaid reasons, I am of the considered opinion that no interference is called for in the impugned judgment in exercise of revisional jurisdiction. The revision is without merit and is accordingly dismissed. Revision Dismissed.