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2011 DIGILAW 1278 (RAJ)

Kanhaiya Lal v. State of Rajasthan

2011-07-04

R.S.CHAUHAN

body2011
JUDGMENT (1) THE petitioners are aggrieved by the judgment dated 21-8-2010 passed by Judicial Magistrate No. 3, Jodhpur, whereby the learned Magistrate has convicted the petitioners for offences under Sections 342, 323/34, IPC. Although the petitioners have been convicted, they were granted the benefit of Section 4 of the Probation of Offenders Act. THE petitioners are also aggrieved by the judgment dated 15-1-2011 passed by the Additional Sessions Judge (Fast Track), No. 3, Jodhpur, whereby the learned Judge dismissed both the appeals filed by petitioner Nos. 1 and 2 and upheld the judgment dated 21-8-2010. (2) BRIEFLY, the facts of the case are that on 15-4-2010, Narendra Kumar Chouhan, lodged a written report wherein he claimed that he, his son Rajendra, and his wife went to the house of Jasa Ram, (petitioner No. 2 before this Court), with whom their daughter is married. They went to the petitioners' house as their daughter, Sarita had called them for discussing certain family matters, as disputes had arisen between the parties. As soon as they sat down, they were assaulted by Jasa Ram and by his father Kanhaiya Lal. He further alleged that his daughter Sarita was subjected to mental and physical cruelty by her mother-in-law, Umrao, by her father-in-law Kanhaiya Lal, and by her sister-in-law, Gayatri. When his daughter was subjected to cruelty, Jasa Ram would stand outside the house in order to ensure that nobody rushed to Sarita's rescue. He further claimed that the moment he and his family members reached the petitioner's house, they were confined in a room and assaulted by Jasa Ram, Gayatri, Umrao and Kanhaiya Lal. He further alleged that Kanhaiya Lal hit his son. Consequently, his son suffered injuries on his eyes. He further alleged that due to other assaults, his son's glasses were broken. Lastly, he alleged that Jasa Ram told them that since he is working in the defence force, neither the police, nor the Court would take any action against him. On the basis of the said report, a formal FIR, FIR No. 200/2007 was registered for offences under Sections 342, 323/34, IPC. Subsequently, the charge sheet was also filed for the same offences. In order to prove its case, the prosecution examined seven witnesses and submit ted six documents. Although the defence did not examine any witness, it did submit seven documents. Subsequently, the charge sheet was also filed for the same offences. In order to prove its case, the prosecution examined seven witnesses and submit ted six documents. Although the defence did not examine any witness, it did submit seven documents. After going through the oral and documentary evidence, vide judgment dated 21-8-2010, the learned Magistrate convicted the petitioners as aforementioned. (3) SINCE the petitioners were aggrieved by the judgment dated 21-8-2010, both of them filed two separate appeals before the learned Judge. After clubbing both the cases vide judgment dated 15-1-2011, the learned Judge passed a common judgment in terns aforementioned. Hence, this revision petition before this Court. (4) MR. Jasa Ram, the petitioner No. 2 appeared in person and argued this case. MR. Jasa Ram, has raised the following contentions before this Court: Firstly, that the evidence of the defence is as important as the evidence of the prosecution. While adjudicating a criminal case, a trial Court can not merely consider the evidence of the prosecution and ignore the evidence produced by the defence. The trial Court is duty bound to weigh both the sets of evidence. In case, them is any evidence from the side of defence which creates a doubt about the prosecution story, then the accused should be given the benefit of doubt and should be acquitted. Secondly, no doubt, there was verbal alter cation between the complainant and the petitioners. However, according to the petitioners, the dispute had arisen between petitioner No. 2 and his wife Sarita. The dispute had reached to such an extent that Sarita had called her parents and her brother to come and take her way. When the complainant and his family members reached the petitioners house, there were verbal arguments between the parties. The flash point was reached when the complainant and his party tried to take the child with them. The fact, that the dispute revolved around the custody of the child is clear from a complaint filed before the ADM, Jodhpur by the SHO, Police Station Udaimandir, Jodhpur on 16-4-2007 under Sections 107, 116(3), Cr. P.C. (Ex. D-6). According to this complaint, on 15-4-2007, the police was informed that a fight had broken out in the Bank Colony situated at Raika-Bag. P.C. (Ex. D-6). According to this complaint, on 15-4-2007, the police was informed that a fight had broken out in the Bank Colony situated at Raika-Bag. According to the police, when they reached the spot, they found the complainant, Narendra Kumar Chouhan, his daughter, his son and his wife having heated arguments with Jasa Ram. Jasa Ram kept on shouting that he would not give away his child. Despite the existence of the said document, marked as Ex.D-6, the learned Magistrate has ignored the said document. Thirdly, once the child was being snatched away by the complainant, the petitioners had exercised their right of a private defence. Fourthly, that the story of the prosecution is full of inherent contradictions. According to the prosecution, the complainant and his family members had come to rescue Sarita as she was confined in a room. However, this stand of the prosecution was not reflected either in the FIR or in the 161, Cr. RC. statements. Moreover and most importantly, according to Sarita (P.W. 6) she was in her bedroom and came out of the room on her own. Since Sarita came out of her room on her own, the question of confining her does not even arise. Therefore, the very purpose for the complainant coming to the petitioners' house is not made out. Furthermore, according to Narendra Kumar (P.W. 1) and Rejendra (P.W. 3), they claim that the police rescued them from the confinement imposed upon them by the petitioners. But according to Tara Devi (P.W. 5), the complainant and his family members came out of the room on their own and then proceeded to call the police. Therefore, according to Tara Devi (P.W. 5), the complainant and his family members were free to move. Thus, the ingredient of offence under Section 436, IPC is clearly not made out. Lastly, that the police was hand in gloves with the complainant. This fact is obvious from the testimony of Bhagwan Singh (P.W. 7), the I.O. Although the petitioners had also filed a FIR against the complainant, although Ex. D-6 and Ex. D-7 were within the knowledge of the police, as they were the documents of the police themselves, yet in his cross-examination, the I.O. claims that he has no knowledge about the said documents. D-6 and Ex. D-7 were within the knowledge of the police, as they were the documents of the police themselves, yet in his cross-examination, the I.O. claims that he has no knowledge about the said documents. Moreover, despite the fact that the police reached the place when confrontation was taking place between the parties, yet the police could not recover the alleged hockey used by Jasa Ram to assault Rajendra. Therefore, a false and fabricated case has been woven by the complainant. On the other hand, the learned Public Prosecutor has contended that the testimonies of Narendra Kumar (P.W. 1), Rejendra (P.W. 3), Tara Devi (P.W. 5) and Sarita (P.W. 6) are consistent : all of them have claimed that the petitioners had committed the offence. Secondly, in light of overwhelming evidence produced by the prosecution, the learned trial Court was certainly justified in ignoring the defence story. Moreover, despite the fact that the petitioners had lodged a FIR against the complainant, after a thorough investigation, the police had filed a negative final report. Despite filing of the protest petition by the petitioners, the learned trial Court had accepted the negative final report and had rejected the protest petition. The petitioners never challenged the said order. Therefore, the trial Court has concluded that the story given by the petitioners was unacceptable. Hence, the learned Public Prosecutor has supported both the impugned judgments. (5) HEARD the learned counsel for the parties and perused the impugned judgments. (6) THE duty of the trial Court is to weigh, to examine and to assess the evidence produced by both the sides during the course of trial. THE trial Court cannot accept the prosecution case as the gospel truth without subjecting it to critical analysis. THE trial Court is also duty bound to consider the evidence produced by the defence. For, the trial Court cannot afford to act either as the post-office for the prosecution, or as its spokesman. It is only after the trial Court separates the wheat from that chaff that it can arrive at its pristine conclusions. Moreover, the trial Court cannot be oblivious of the fact that while it is the duty of the prosecution to establish its case, it is the right of the defence to puncture the prosecution case and to point out the loopholes therein. Moreover, the trial Court cannot be oblivious of the fact that while it is the duty of the prosecution to establish its case, it is the right of the defence to puncture the prosecution case and to point out the loopholes therein. THErefore, the evidence of the defence is as essential and as important and requires as much consideration as the evidence of the prosecution. In catena of cases, the Hon'ble Supreme Court has held that it is the duty of the trial Court to consider the defence evidence as much as to examine the prosecution evidence. In the present case, a bare perusal of the judgment dated 21-8-2010 clearly shows that the learned Magistrate has failed to critically analyze the defence evidence. As mentioned above, the SHO, Police Station Udaimandir, Jodhpur had filed a complaint before the ADM, Jodhpur City (Ex. D-6), wherein he had clearly claimed that on 15- 4-2007, the police had received information that a fight had broken out in the Bank Colony, situated at Rai-ka-Bag, Jodhpur. According to the said complaint, when police reached the spot, they found both the petitioners as well as the complainant, in the present case, outside the house and arguing over the custody of the child. While the complainant and his family members were trying to take the child away, Jasa Ram, petitioner No. 2, father of the child, vehemently protested. Despite existence of this document, the learned trial Court has totally ignored it. However, the complaint filed by the SHO (Ex.D-6) lets the cat out of the bag. Although the prosecution has claimed that when the complainant and his family members reached Jasa Ram's house, they were assaulted by Jasa Ram and his father Kanhaiya Lal, yet they do not reveal the reason for such an assault. The prosecution would have the Court believe that the petitioners had assaulted them without any rhyme or reason. Moreover, the prosecution would have the Court believe that the complainant and his family members had gone to rescue Sarita, who was confined in a room by the petitioners. However, according to the police, in the complaint filed under Sections 107, 116(3), Cr. P.C. (Ex. D-6), they found Sarita outside the house along with her family members. Moreover, Sarita (P.W. 6) clearly claims that when her father and brother came to her matrimonial home, she was sitting in her bedroom. However, according to the police, in the complaint filed under Sections 107, 116(3), Cr. P.C. (Ex. D-6), they found Sarita outside the house along with her family members. Moreover, Sarita (P.W. 6) clearly claims that when her father and brother came to her matrimonial home, she was sitting in her bedroom. According to her, she came out of the bedroom of her own freewill. Therefore, the story of the prosecution, that Sarita was locked up in a room, stands shattered. Interestingly both the Courts below have ignored these glaring facts. But these facts create chinks in the armour of the prosecution. (7) OF course, it is true that the FIR lodged by the petitioners culminated in a negative final report filed by the police. But nonetheless, the complaint filed by the police under Sections 107, 116(3) Cr. P.C. did exist. The learned trial Court has ignored its critical significance in the entire case. (8) IT is, indeed, a settled principle of criminal jurisprudence that even if the accused does not plead the right of private defence, but in case there is sufficient evidence to show the existence of the said right, the trial Court should consider the said aspect. In the present case, since there is evidence to show that the complainant were trying to snatch away Jasa Ram's only son, obviously, Jasa Ram and Kanhaiya LaL could exercise the right of private defence. A bare perusal of Jasa Ram's statement recorded under Section 313, Cr. P.C, clearly reveals that he had informed the Court that it is the complainant and his family members, who were trying to forcefully take away his son and the fight ensued because of this reason. A similar statement was given by Kanhaiya Lal under Section 313, Cr. P.C. Both these statements should have alerted the trial Court. Moreover, the statements should have convinced the learned trial Court to analyze the evidence with due care and caution. However, the learned trial Court has failed to do so. (9) THE facts mentioned above have also escaped the notice of the learned appellate Court. Both the Courts below seem to have been influenced more by the testimonies of prosecution witnesses than by the defence evidence. Both the Courts below have ignored documentary evidence produced by the defence. However, the documents produced by the defence are sufficient to create gapping holes in the story of the prosecution. Both the Courts below seem to have been influenced more by the testimonies of prosecution witnesses than by the defence evidence. Both the Courts below have ignored documentary evidence produced by the defence. However, the documents produced by the defence are sufficient to create gapping holes in the story of the prosecution. (10) THUS, this Court quashes and sets aside the judgment dated 21-8-2010 passed by Judicial Magistrate No. 3, Jodhpur passed in Criminal Case No. 494/07, as well as judgment dated 15-1-2011 passed by the Additional Sessions Judge (Fast Track), No. 3, Jodhpur in Criminal Appeal No. 71/2010 (273/10), and acquits the petitioners for offences under Sections 342, 323/34, IPC. Since the petitioners are already on a bond, the same shall stand discharged. Petition allowed.