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2012 DIGILAW 1125 (MP)

Rajesh Kumar Tiwari v. State of M. P.

2012-11-06

N.K.GUPTA

body2012
Judgment N.K. Gupta, J.;- 1. The appellant has preferred this appeal against the judgment dated 4.5.2000 passed by the learned Special Judge under the SC/ST (Prevention of Atrocities) Act (Rewa) in Special Case No. 65/1999 whereby the appellant was convicted for offence punishable under Sections 323, 506 (Part II) of I.P.C and sentenced for 6 months rigorous imprisonment with fine of Rs. 500/- for each count. In default of payment of fine on each count one month's simple imprisonment was directed. The prosecution's case in short is that on 12.1.1996 at about 4.00 p.m. in the evening the complainant Harshlal (PW1) and Panchamlal (PW4) were making some construction in their cattle house situated at Village Akouri, (Police Station Naigarhi, District Rewa). One Keshav Prasad came to them and told that one doctor sahab was calling them and therefore, they went to the road. The appellant and other co-accused persons were present on the road and they abused the complainants on the basis of the cause and with obscene words. The accused persons assaulted the victims by sticks, knives and other weapons. On their shouting the witnesses Sheshmani and Ramsiya came to the spot who saved the complainants. The complainants had submitted a written report Ex., P/1 on 16.1.1996 to the S.P. Rewa with the blame that they had lodged an FIR at Police Station Narigarhi on 12.1.1996 but nothing was done of their complaint. A case was registered and after due investigation a charge sheet was filed before the Special Judge, Rewa. 2. The appellants abjured their guilt. They did not take any specific plea in defence. No defence evidence was adduced. 3. After considering the prosecution's evidence the learned Special Judge acquitted the accused Onkar and Keshav from all the charges whereas the appellant Rajesh was convicted for offence punishable under Section 323, 506 (Part II) of the I.P.C and sentenced as mentioned above. 4. I have heard the learned counsel for the parties. 5. The learned counsel for the appellant submits that a compromise took place between the victim Harshlal and the appellant Rajesh and therefore, the appellant was acquitted from the charges of offence punishable under Sections 323 and 506 (Part II) of I.P.C for the complainant Harshlal and therefore, the conviction was directed only for the complainant Panchamlal whereas Panchamlal has not stated specifically against the appellant that he assaulted him or he gave any threat. The trial Court has committed the error in convicting the appellant. In the alternate it is submitted that the appellant has faced the trial and appeal for last 13 years. He was a youth of 18 years at the time of incident and therefore, he should have been enlarged on probation. He remained in the custody for three days and therefore, the sentence of the appellant may be reduced to the period which he has already undergone in the custody. 6. On the other hand the learned Public Prosecutor for the State submits that the appeal may be dismissed being without any merits. 7. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case it is to be considered as to whether the appeal filed by the complainant can be accepted ? And whether the sentence directed against the appellant can be reduced ? 8. Harshlal (PW1), Sheshmani (PW2), Ramsiya (PW3) and Pamcham (PW4) were examined as eye witnesses. Out of them all the witnesses have turned hostile. They did not confirm the prosecution's case either against the appellant or against the other co-accused persons. Sheshmani and Ramsiya turned hostile in toto. Harshlal did not say anything about the incident caused by the appellant towards the complainant Panchamlal. Panchamlal has stated in para 3 of his statement that he was threatened by the accused persons but no specific allegation was made upon the appellant. In this pretext if FIR Ex.P/1 is perused then it is apparent from the FIR that no threat was given by any of the accused on 12.1.1996 therefore, testimony of the witness Panchamlal in this context cannot be accepted because his statement is an after thought. 9. Similarly, it is not sufficient for consideration of offence under Section 506 (Part II) of I.P.C that a threat was given. On the contrary the prosecution has to prove that what was the object of the threat whether it was to terrorize the complainant or to pressurize the complainant to do or omit to do any act. 9. Similarly, it is not sufficient for consideration of offence under Section 506 (Part II) of I.P.C that a threat was given. On the contrary the prosecution has to prove that what was the object of the threat whether it was to terrorize the complainant or to pressurize the complainant to do or omit to do any act. Pancham could not tell the reason why he was threatened and therefore, if version of the witness Pancham is accepted it cannot be said that the appellant has committed an office of criminal intimidation under section 506 (Part II) of the I.P.C. The learned Special Judge has erred in convicting the appellant for offence punishable under section 506 (Part II) of I.P.C. 10. The witness Panchamlal has stated in an omnibus manner that the accused persons assaulted him by sticks. He did not allege against the appellant that he assaulted him by a stick and caused any injury, on his particular portion of the body. FIR Ex.P/1 was lodged with delay of atleast four days and no reason has been shown about the delay. In the FIR Ex.P/1 it is mentioned that an FIR was lodged at Police Station, Naigarhi on the same day of the incident but, no such FIR was proved by the prosecution. If prosecution's documents are perused because such can be perused in favour of the accused persons though they were not proved then it would be apparent that an MLC report was submitted by the investigation officer for the injuries caused to Harshlal along with charge sheet but, no MLC report has been produced for the victim Panchamlal and therefore, it is apparent that the victim Panchamlal did not sustain any injury in the incident. If it is accepted that the appellant assaulted the victim Panchamlal by a stick then he must have sustained atleast one injury on his person. Under such circumstances, it is apparent that the testimony of the complainant Panchamlal is nowhere corroborated. No eye witness has corroborated his testimony. His FIR was highly delayed which creates a doubt on the prosecution's case and it is not proved that any injury was caused to the victim Panchamlal. Under such circumstances, the testimony of the witness Panchamlal is not acceptable and it is not proved beyond doubt that out of the accused persons the appellant Rajesh has also assaulted him. His FIR was highly delayed which creates a doubt on the prosecution's case and it is not proved that any injury was caused to the victim Panchamlal. Under such circumstances, the testimony of the witness Panchamlal is not acceptable and it is not proved beyond doubt that out of the accused persons the appellant Rajesh has also assaulted him. If any doubt is created then benefit of doubt is to be given to the accused and therefore, the appellant Rajesh could not be convicted for offence punishable under section 323 of I.P.C. 11. On the basis of the aforesaid discussion it appears that the learned Special Judge erred in convicting the appellant for offence punishable under Section 323, 506 (Part II) of I.P.C. Consequently, the appeal filed by the appellant can be accepted. The appeal filed by the appellant is hereby accepted. The conviction as well as the sentence directed for offence punishable under Section 323, 506 (Part II) of I.P.C (for the complainant Panchamlal) is hereby set aside. The appellant is acquitted from all such charges. The appellant shall be entitled to get the fine amount back from the trial Court if he has deposited the same. 12. The appellant is on bail and therefore it is directed that his bail bonds shall stand discharged because his presence is no more required before this Court. 13. The appellant is in jail due to another case and therefore, the jail authorities be informed that the appellant is not required in the present case. Copy of the judgment be sent to the trial Court along with its record for information and compliance.