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2011 DIGILAW 299 (CHH)

PANARAM v. STATE OF M. P. (NOW C. G. )

2011-08-29

SUNIL KUMAR SINHA

body2011
ORDER 1. This revision is directed against the judgment dated 03.12.1998, passed in Criminal Appeals Nos. 326/97 and 327/97 by the 2nd Additional Session Judge, Baloda Bazar. The said appeals were filed against the judgment and order dated 18.2.1997, passed in Criminal Case No. 986/87 by the Additional Chief Judicial Magistrate, Baloda Bazar, by which, the applicants were convicted under Sections 147, 323 and 324/149 IPC and sentenced to undergo R.I. for 1 year and to pay fine of Rs.1 000/-; R.I. for 1 year and to pay fine of Rs.1 000/-; and R.I. for 3 years and to pay fine of Rs.3000/- respectively. In the appeals, the conviction and sentence awarded under Section 147 IPC has been set aside and applicant No.4 has been convicted Under Section 324 IPC and sentenced to undergo R.I. for 1 year and to pay fine of Rs.500/-. The other applicants have been convicted under Section 324/149 IPC and have been awarded the same sentences. Applicants 1, 2, 3 and 5 have been further convicted under Section 323 IPC and sentenced to undergo R.I. for 6 months and to pay fine of Rs.500/- and Babulal has been further convicted under Section 323/149 IPC and Same sentences has been awarded to him. 2. The facts, briefly stated, are as under:- Case of the prosecution is that on 24.8.1987, at about 7.00 am, complainant Badri Prasad (PW-1) went to see his filed, which was situated in the outer area of the village. He saw that applicant- Babulal (A4) was grazing buffalo in his field. When he protested, Babulal (A4) started quarrel with him and gave tangia blows on his arms. After hearing hue and cry, other applicants also came there and assaulted by hands and fists and lathi. The complainant received simple injuries. He went to Police Station and lodged FIR (Ex. P/1). He was sent for medical examination and was examined by Dr. Y.K. Sharma (PW-6), who found 2 incised wounds, 2 contusions and one abrasion on his person. All the injuries were simple in nature. The injury report of the complainant is Ex.P/2. The learned trial Court held that the applicants participated in rioting and they also participated in assaulting the complainant Badri Prasad (PW-1), therefore, they were punished under the aforementioned Sections of the IPC. Two appeals were filed against the judgment of conviction passed by the trial Court. The injury report of the complainant is Ex.P/2. The learned trial Court held that the applicants participated in rioting and they also participated in assaulting the complainant Badri Prasad (PW-1), therefore, they were punished under the aforementioned Sections of the IPC. Two appeals were filed against the judgment of conviction passed by the trial Court. In appeals, the appellate court acquitted the applicants under Section 147 IPC on the ground that no charges were framed under the said Section against the applicants. However, the appellate court' found them guilty of offence punishable under Sections 324, 323, 324/149 and 323/149 IPC as stated above and sentenced them to undergo as aforementioned. 3. Shri J.R. Verma, learned counsel for the applicants argued that 2 applicants namely Babulal and Dhansai also sustained injuries in the same transaction and their injures have not been explained by the prosecution; the Investigating Officer has not been examined and the prosecution story becomes doubtful; the contents of FIR (Ex.P/1) would show that Babulal has allegedly assaulted the complainant Badri Prasad (PW-1) by Tangia and other applicants came there later on, who also assaulted him by hands and fists and lathi, therefore, conviction of the applicants with tile aid of Section 149 IPC was not justified. 4. On the other hand, Shri Arvind Dubey, learned Panel Lawyer for the State opposed these arguments and supported the judgment passed by the Sessions Court. 5. I have heard learned counsel for the pal1ies at length and have also perused the records of the courts below. 6. Badri Prasad (PW -1) deposed that when he tried to remove the buffalo from his field, Amar Sai assaulted him by hands and Babulal assaulted him by Tangia. Thereafter, Amrit Lal and Dhansai assaulted him by lathi and Panaram assaulted by hands and fists. FIR (Ex.P/1) was lodged by Badri Prasad (PW-1). In the FIR, he mentioned that in fact, Babulal quarreled with him and assaulted by Tangia and then, after hearing hue and cry, the other applicants came there and assaulted him by lathi and hands and fists. This makes clear that the applicants did not form an unlawful assembly and as such the assault was not made in furtherance of common object of the unlawful assembly. There is clear evidence that the quarrel took place between Babulal and the complainant. This makes clear that the applicants did not form an unlawful assembly and as such the assault was not made in furtherance of common object of the unlawful assembly. There is clear evidence that the quarrel took place between Babulal and the complainant. It is alleged that Babulal assaulted the complainant and thereafter, the other applicants reached there and further quarrel took place between the complainant and other applicants. In the above facts and circumstances of the case, conviction of all the applicants with the aid of Section 149 IPC, cannot be sustained and the same is liable to be set aside. 7. Shri Verma has argued that 2 applicants namely- Babulal and Dhansai also received injuries in the same transaction and the injuries were not explained by the prosecution witnesses therefore, the entire case of the prosecution should be disbelieved. The injury reports of the 2 applicants have been filed as Ex. D2 and Ex. D3. 8. The learned Sessions Judge has considered the above argument, which was also raised in appeal. The Sessions Judge came to the conclusion that the above injuries were not proved by the Doctor concerned. The reports have been marked exhibit on the evidence of Dr. R.P. Pandey (DW-1), who simply proved signatures of Dr. H.N. Nayak, who is said to have examined the 2 applicants. Dr. H.N. Nayak was not examined by the defence. The Sessions Judge has further held that even if the injury reports are held to be proved, it was not proved that those injuries were received in the same transaction because the duration of the injuries do not match with the time of the incident. The Sessions Judge held that it was also not established that on whose instance the 2 applicants were examined by the Doctor and in what context their examination took place. 9. The contents of the above 2 reports would show that the 2 applicants were sent by Police Station, Kasdol through Constable Udai Ram (318) for their examination on 26.8.1987 and were examined by the concerned Assistant Surgeon on the same day. The signature of the concerned Doctor, who was a co-worker of Dr. R.P.Pandey (DW-1) in the same hospitals, has been duly proved and the reasons for non-examination of Dr. H.N. Nayak has been assigned. The duration in the injury reports is more than 12 hours. The signature of the concerned Doctor, who was a co-worker of Dr. R.P.Pandey (DW-1) in the same hospitals, has been duly proved and the reasons for non-examination of Dr. H.N. Nayak has been assigned. The duration in the injury reports is more than 12 hours. Therefore, on the above evidence, these injury reports could have been co-related with the incident and the Sessions Judge erred in law in holding that the above injury reports could not be co-related with the incident and the applicants cannot get benefit of doubt. 10. According to injury report of Babulal, he received one abrasion of 4"x 1 ½” on his left wrist joint, another bruise of 10cm x 1 1/2 cm over lateral aspect of left thigh and there was tenderness over left upper arm. Dhansai also received a bruise of 12cm x 2cm on the anterior lateral aspect of left thigh and he also received another bruise of 10 cm x 2 cm over posterior aspect of thigh. Not a single word has been said by the prosecution witnesses regarding these injuries sustained by the 2 applicants. If the complainant was assaulted in the manner he deposed, there was no question of receiving the injuries by these applicants. This shows that the prosecution has not produced the correct version of the incident or the prosecution witnesses are suppressing some material facts relating to the injuries sustained by 2 members of the accused party and the version of the prosecution becomes shadowed. It is further noted that Badri Prasad (PW-1) in his cross examination admitted that there was party-bandi in the village and a preventive case under Section 107 and 116 Cr.P.C. was pending between him and the applicants at the time of the incident. 11. In the above back ground of the prosecution case, non-examination of Investigating Officer assumes importance. If the Investigating Officer would have been examined, an explanation would have been sought about the contents of the FIR, in which, the ingredients of common object were totally omitted. 11. In the above back ground of the prosecution case, non-examination of Investigating Officer assumes importance. If the Investigating Officer would have been examined, an explanation would have been sought about the contents of the FIR, in which, the ingredients of common object were totally omitted. Further explanation would have been sought, that when the 2 injured applicants were arrested, whether the Investigating Officer had seen any injury on their person, and whether they were sent for their medical examination by the I.O. and if they were sent by the I.O., what was written in their requisition in the column, which is meant for making endorsement of the in-formations with the I.O. till the date and time of preparing requisitions. This could not be brought on record because the I.O. has not been examined. Therefore, non-examination of the I.O. was fatal to the prosecution and in the present facts and circumstances of the case, it was a lacuna in the prosecution case. 12. In the above facts and circumstances of the case, I am unable to sustain the conviction of the applicants on the above set of evidence. I am of the view that the prosecution has not proved its case beyond all reasonable doubts and the version of the prosecution witnesses are shadowed on account of the above lacuna in the prosecution case. 13. For the foregoing reasons, the revision is allowed. The conviction and sentence awarded to the applicants are set aside. The applicants are acquitted of the charges famed against them. Revision Allowed.