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Madhya Pradesh High Court · body

2011 DIGILAW 794 (MP)

Chhotya v. State of M. P.

2011-07-21

I.S.SHRIVASTAVA

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JUDGMENT I.S. Shrivastava, J. 1. This appeal has been preferred by the appellant being aggrieved by the judgment dated 23.5.1996 passed by the Court of Shri B.P. Maheshwari, 1st A.S.J. Badwani in S.T. No. 146/89 by which the appellant has been convicted under S. 307 of the I.P.C. with R.I. for 3 years and fine of Rs. 200/-. 2. According to prosecution case in the field of Jadiya atemporary hut (Tapra) of appellant Chhotya was constructed since last 8-10 years. The family of Chhotya was living there. Due to which his crops were being damaged. Therefore, complainant was asking him for the last four years to remove this Tapra and accused used to reply that he will shift his Tapra. About 12-15 days before the date of incident on 14.3.89 Chhotya with the help of villagers shifted his Tapra. His brother Hemda also went to help him. In the night of 14.3.89 at about 10 p.m. when the complainant Jadiya was returning to home accused persons met him. At that time Chhotya was having bow and arrow, Gathiya was having axe and Lemdiya was having lathi (dang). It was allegation of appellant Chhotya that he had hidden Rs.200/- near the pole of the Tapra which was taken by Hemda while shifting the Tapra. Hence he should return it. Complainant replied that no money was found there. Then Chhotya insisted to return the money and threatened to kill him then complainant again said that he did not find any money there. Thereafter Chhotya inflicted arrow on him which caused injury on the left side of stomach and Gathiya assaulted by axe which caused injury to Jadiya on his left hand. Jadiya fell down. Thereafter Chhotya, Gathiya and Lemdiya again assaulted him. This incident was witnessed by Nandliya, Nayka, Bhatiya and Waklibai wife of Jadiya. Jadiya told them about the incident. Next day on 15.3.89 the report was lodged at 9.30 a.m. and Crime No. 120/89 under S. 307/34 of I.P.C. was registered at Police Station, Badwani. After investigation challan was filed and after trial only appellant has been convicted after trial as mentioned above; hence this appeal. 3. It has been argued by the appellant's counsel that he has been falsely implicated in this case. After investigation challan was filed and after trial only appellant has been convicted after trial as mentioned above; hence this appeal. 3. It has been argued by the appellant's counsel that he has been falsely implicated in this case. The accused Jadiya, Temriya and Nandliya came to the house of the appellant and broken his house and tried to put fire to it and falsely implicated him. The defence evidence produced by the appellant was not considered by the trial court. In the evidence, medical certificate Ex. P. 2 of some other person named Chaminiya was produced before the trial court but not of Jadiya. The complainant Jadiya was not identified by the doctor at the time of evidence to prove the fact that he has examined the complainant. In this way MLC report Ex. P. 2 was doubtful and on the basis of which it was not proved that the complainant Jadiya sustained injuries. The injuries were not dangerous to life. The motive was not proved. The appellant has been convicted on the basis of statement of sole evidence of complainant. The other witnesses were not the eye witnesses. There were serious contradictions and omissions in the evidence of the prosecution witnesses which has not been appreciated in proper perspective; hence appeal should be allowed. 4. It has been argued on behalf of respondent that appellant has been rightly convicted by the trial court on the basis of evidence produced before it. The medical certificate of Jadiya was correct and as he told his name as Chaminiya at the time of medical examination, the appeal being devoid of merits, be dismissed accordingly. 5. Considered the arguments and perused the record. 6. There is no eye witnesses of the incident. According to Temriya (PW.2) he reached after the incident. According to Nayka (PW.3) he was at his house and on cries of Jadiya he reached on the spot. Jadiya told him about the* incident. Nansingh (PW.4) was at his home and he recognized voice of Jadiya from the side of the house and he reached there where Jadiya informed him that Chhotiya assaulted him by arrow. Bhatia (PW.5) deposed that hearing the voice of Jadiya he went to the house of Jadiya and saw him in injured condition. Jadiya did not tell him about the reason of assault. Bhatia (PW.5) deposed that hearing the voice of Jadiya he went to the house of Jadiya and saw him in injured condition. Jadiya did not tell him about the reason of assault. Amarsingh (PW.6) deposed that on the date of incident he was at home and Nayka came to his house and informed him about the incident and asked him to go to police station for lodging the report. Then he said him that he will come in morning to accompany them and in the morning he went to police station. In this way all these witnesses were not eye witnesses of the incident. 7. Jadiya (PW. 1) has deposed that after 10 days of shifting of Tapra by Chhotya on the date of incident he was returning from Jamnia at 10.00 p.m. in the way of house accused Chhotya armed with bow and arrow, Gathiya armed with axe and Lemdiya armed with lathi, met him and without saying anything they assaulted him. Chhotya assaulted by arrow which caused injury in his stomach, Gathiya assaulted by axe which caused injury on the left hand and Lemdiya extorted him to kill. Chhotya snatched arrow from his stomach and ran away. Due to snatching of the arrow his intestine came out of his stomach. On his cries Temriya, Nayka, Hemda, Baklibai, Nansingh came there and he told the incident to them. Temriya went to Hukum Singh Patel and Nayka went to Amarsingh Patel. He told the incident to Khumsingh in the morning to lodge report in the police station. In the cross-examination he denied with the portion A-A, B-B, C-C and D-D of the police report and said that he did not tell this fact at the time of report. In this way he denied the fact that in his field Tapra of Chhotya was constructed since last 8-10 years. He denied with the fact that 12-15 days before Chhotya called villagers for shifting of the Tapra. His (Jadiya's) brother also went to help. He also denied with the fact that Chhotya said to him that he has shifted the Tapra and he had hidden Rs. 200/- in the earth below the Tapra which were taken out by his brother and he demanded money back from them. He denied also this fact that he has not received any money. Then Chtoya insisted and threatened him to kill. 200/- in the earth below the Tapra which were taken out by his brother and he demanded money back from them. He denied also this fact that he has not received any money. Then Chtoya insisted and threatened him to kill. In this way the basis, origin and motive of the incident was not confirmed by the complainant Jadiya that how the dispute took place and accused persons assaulted him. Diverting the prosecution story, Jadiya simply deposed that as soon as accused persons met him, they assaulted him. It means without any motive, the accused persons assaulted him but it is not the prosecution case. 8. As regards police statement Ex.D. 1 Jadiya deposed that he did not give the statement that in his field the hut (Tapra) of Chhotya was situated. Similarly, he has not confirmed that police recorded his police statement Ex.D. 1 and he also denied with the portion A-A of his police statement. 9. It has been held in case of Ram Narain Poply Vs. CBN- AIR 2003 SC 2748 that "introduction of new story during the trial would adversely affect the prosecuiton case. It does not only create doubt with regard to the prosecution version but also creates doubt in the motive entitling the accused to the benefit of doubt" 10. In this case also the motive has not been proved and complainant Jadiya (PW. 1) has given a new story during trial and did not support the prosecution case. Under the circumstances the appellant was entitled for benefit of doubt. 11. It is also apparent from above discussion that the statement of complainant Jadiya was full of contradictions. He gave new story and did not support the prosecution case. Hence his statement was not worthy of credence. In case of Palanisamy Vs. State of Tamil Nadu- 1986 1 MP WN 178 (SC) it has been held that "witness not found worthy of credence, accused can not be punished. " Therefore, in this case also considering the statement of Jadiya (PW. 1) the appellant was not liable to be convicted. 12. From the medical certificate Ex.P.2 of the complainant it reveals that in this certificate the name of injured was mentioned as Chimaniya son of Nanagati while name of injured was Jadiya which was mentioned in the medical requisition papers on back side of this paper medical report Ex.P.2 is written. 1) the appellant was not liable to be convicted. 12. From the medical certificate Ex.P.2 of the complainant it reveals that in this certificate the name of injured was mentioned as Chimaniya son of Nanagati while name of injured was Jadiya which was mentioned in the medical requisition papers on back side of this paper medical report Ex.P.2 is written. Dr.Raj Kumar Arya (PW.9) in his examination-in-chief has deposed that on. 15.3.89 Jadiya son of Nana, was sent to him for medical examination. He examined him and gave medical report Ex.P.2. In cross-examination he has admitted in the Ex.P.2 he has mentioned name of the injured as Chimaniya Silda son of Nana. He wrote this name on the basis of information of the injured. In this respect it has been argued by appellant's counsel that name of the complainant Jadiya is not Chimniya. It is a report of some other person and report of Jadiya has not been produced in evidence. The complainant Jadiya was not produced before the Court at the time of examination of Dr.Raj Kumar Arya (PW.9) to identify him on the basis of identification marks. Under the circumstances it cannot be said that Jadiya was the person who was examined by Dr.Raj Kumar Arya (PW.9). In this respect respondent has argued that doctor has mentioned the name as was told by the complainant Jadiya. There should not be any doubt about the identity of the complainant. The argument in this respect is baseless. 13. Considering the circumstances, from the Ex. P.2 it reveals that name of injured was mentioned as Chimaniya Silda son ofNanagati while on the medical requisition papers name of injured was mentioned as Jadiya son of Nanagati. At the time of statement of Dr.Raj Kumar Arya (PW.9) when this was brought to the notice of the prosecution that there is mistake in the noting of name of injured Jadiya and the medical report Ex.P.2 does not bear name of Jadiya but it bears name of Chimaniya then it was the duty of the prosecution to call the injured Jadiya (PW. l)at the time of evidence of Dr. Raj Kumar Arya (PW.9) to prove his identity on the basis of identification marks. But prosecution failed to prove the identity of complainant Jadiya. l)at the time of evidence of Dr. Raj Kumar Arya (PW.9) to prove his identity on the basis of identification marks. But prosecution failed to prove the identity of complainant Jadiya. Under the circumstances it can not be definitely said that doctor gave the medical report Ex.P.2 about the injury of Jadiya because he did not mention name of Jadiya in this medical certificate but he mentioned name of Chimniya as the patient. Therefore, it was not proved at the time of trial that Dr. Raj Kumar Arya (PW.9) had examined Jadiya and gave medical report Ex.P.2. The possibility can not be ruled out that it may be report of any other person which was wrongly noted down on the medical examination papers of Jadiya. There is no evidence that Jadiya's second name is Chimnia. In case second name of Jadiya is not Chimnia, then in routine he will not tell his name as Chimnia then there was no opportunity to doctor to note down name of Jadiya as Chimnia. This creates doubt about the genuineness of the medical report Ex.P.2 and it was not proved that complainant Jadiya was the same person who was examined by the doctor at the time of MLC. Therefore, medical report Ex.P. 2 was doubtful. 14. There were serious contradictions and omissions in the statement of Jadiya (PW.l) as he did not support portion A-A to D-D of the FIR and denied with his police statement Ex.P.2. Under the circumstances his statement was not reliable being full of contradictions and omissions. 15. Therefore, on the basis of above discussion, I conclude that the prosecution case was not proved before trial court. Medical certificate Ex.P. 2 of the complainant Jadiya was doubtful. The identification of Jadiya was not proved on the basis of identification marks at the time of evidence. Hence medical report Ex.P. 2 was doubtful. The motive was not proved. The sole statement of complainant was full of contradictions and omissions. Hence it was not reliable. The complainant Jadiya gave a new story during the trial on the basis of which prosecution case became doubtful. Under the circumstances, the appellant was not liable to be convicted. Hence this appeal deserves to be allowed. 16. The motive was not proved. The sole statement of complainant was full of contradictions and omissions. Hence it was not reliable. The complainant Jadiya gave a new story during the trial on the basis of which prosecution case became doubtful. Under the circumstances, the appellant was not liable to be convicted. Hence this appeal deserves to be allowed. 16. Therefore, on the basis of above discussion, the appeal is allowed and the appellant Chhotya is acquitted from the charges under S. 307 of the I.P.C. His bail bonds are discharged. Fine, if deposited, be returned. Hence ordered accordingly.