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Madhya Pradesh High Court · body

2012 DIGILAW 646 (MP)

Babulal v. State of M. P.

2012-06-29

N.K.GUPTA

body2012
JUDGMENT : Theappellants have preferred this appeal against the judgment dated 8.10.1996 inS.T. No.184/2006 passed by the learned 2nd Additional Sessions Judge Chhindwara , whereby the appellants were convicted for theoffence punishable under Section 323 of IPC and sentenced for one year R.I.with fine of `500/-. In default of payment of fine, each of them has to undergofor one month R.I. 2.Prosecution's case in short is that on 25.1.1995 at about 11:50 p.m. in the night, the victim Harisingh (PW-4) was coming back from the house of Rampyari Bai in village Dungariya . When hereached to the field, near the house of Rampyari , theappellants came with sticks and shouted that why he was there. Thereafter, theyassaulted the victim by the sticks. Lallu Pandole ran away from the spot. Due to that assault, thevictim sustained injuries on his head and right hand. On his shouting, Charangouli and Sunder (PW-1) came to the spot to save thevictim. The witnesses took the complainant to house of one Ghasiram and thereafter, when Subinspector Damle posted at outpost Dungariya came to the house of Ghasiram then an FIR ( Dehati nalishi ) was lodged. The victim was sent to the hospitalfor his medico legal examination. Some injuries were found on her person by Dr. Rajiv Jain (PW-9). He prepared his report Ex.P/10.After due investigation, a charge sheet was filed before the J.M.F.C. Chhindwara , who committed the case to the Sessions Court, Chhindwara and ultimately, it was transferred to the 2ndAdditional Sessions Judge, Chhindwara . 3.The appellants abjured their guilt. They did not take any specific plea butthey had stated that they were falsely implicated in the matter. However, Parasram (DW-1) and Ganesh (DW-2)were examined to the fact that at the time of incident, the victim Harisingh was deadly drunk. He was not in a position toinform as to who assaulted him. 4.After considering the evidence adduced by both the parties, learned 2ndAdditional Sessions Judge, Chhindwara acquitted theappellants from the charges of offence punishable under Section 307 of IPC butconvicted them for the offence punishable under Section 323 of IPC andsentenced them as mentioned above. 5.Since learned counsel for the appellants was not appearing in the Court since lasttwo weeks, therefore, Shri G.S. Thakur ,Advocate from the panel of Legal Aid was appointed to aruge the matter on behalf of the appellants. 6.I have heard learned counsel for both the parties. 5.Since learned counsel for the appellants was not appearing in the Court since lasttwo weeks, therefore, Shri G.S. Thakur ,Advocate from the panel of Legal Aid was appointed to aruge the matter on behalf of the appellants. 6.I have heard learned counsel for both the parties. 7.Learned counsel for the appellants has submitted that the complainant was notin a position so that he could identify the accused persons. It was a case of midnight took place on the road, where there wasno arrangement of the light. The eyewitness Sunder (PW-1) turned hostile andtherefore, testimony of the victim/complainant was not confirmed by anyone.Police outpost was established in the village Dungariya but Dehatinalishi was registered on the next dayabout 1:30 p.m. and therefore, FIRwas highly delayed. Under such circumstances, the appellants could not beconvicted for the offence punishable under Section 323 of IPC. In alternate, itis also submitted that looking to the period of pendency of the trial and appeal, a lenient view may be taken in passing the sentence.Each of the appellants has already deposited the fine amount of Rs.500/- andtherefore, the jail sentence may be removed. 8.On the other hand, learned Panel Lawyer for the State has submitted that it wasa case of offence punishable under Section 307 of IPC. Since some medicalreports were not proved, therefore, the trial Court convicted the appellantsfor the offence punishable under Section 323 of IPC only and therefore, thesentence inflicted upon the appellants appears to be correct, because in suchcases, maximum sentence is required to be given. 9.In the present case, it is to be seen that whether the appellants were thepersons, who assaulted the victim? 10. Harisingh (PW-4) has stated before the trial Courtthat the appellants assaulted him by axes. He was categorically asked by thetrial Court as to how he identified the accused persons in the night. Hereplied that the appellants took him to their house and thereafter, theyassaulted him, hence he could identify to them. On the contrary, eyewitnessSunder (PW-1) turned hostile. Another witness Sudama (PW-3) has stated that two persons from his village informed him that somethief had entered in their house and they had got that thief and when Sudama went to the spot, he found that they held Harisingh . Harisingh did not tellanything to the witness Sudama or any person at thattime. Another witness Sudama (PW-3) has stated that two persons from his village informed him that somethief had entered in their house and they had got that thief and when Sudama went to the spot, he found that they held Harisingh . Harisingh did not tellanything to the witness Sudama or any person at thattime. Similarly Lallu (PW-6), who was alleged to be acompanion of the complainant at the time of incident has stated that he heard avoice ( Maro-Maro ) then he immediately ran away fromthe spot. He could not say, who assaulted the victim Harisingh . Under such circumstances, it is nowherecorroborated by any witness that Harisingh was beatenby the appellants. 11.It is accepted by Harisingh himself that there was noarrangement of light on the road and therefore, to identify the appellants, heclaimed that the appellants took him to their house, whereas in the FIR, he didnot mention that the appellants took him to their house. Under suchcircumstances, the modification done by the complainant cannot be accepted. Itappears to be an afterthought. Under such circumstances, it is clear that therewas a pitch dark at the spot and the complainant Harisingh could not identify the assailants. Dehatinalishi Ex.P/4 was lodged by the complainant to Sub-inspector Damle at outpost Dungariya . The incident took place atabout 11:50 p.m. in the night and FIR could not be lodged till next day atabout 1:30 p.m. Delay in lodging the FIR indicates that either the complainantwas in a deadly drunk position as told by the defence witnesses and therefore, he was unable to lodge any FIR just after the incidentor he was taken in the custody by the police itself when he was handed over tothe police with allegation that he was a thief. However, looking to the delayin the lodging the FIR, the same is a doubtful document by which nocorroboration can be obtained in favour of thecomplainant. Under such circumstances, evidence of the complainant is nowherecorroborated by any corroborative or circumstantial evidence. It is apparentthat the incident took place on a road in the dark night and therefore, thevictim could not identify anyone, who assaulted him. In lack of identification,it cannot be said that the appellants were the persons, who assaulted thevictim in the night. Under such circumstances, the appellants could not beconvicted for the offence punishable under Section 323 of IPC or any other inferioroffence of the same nature. In lack of identification,it cannot be said that the appellants were the persons, who assaulted thevictim in the night. Under such circumstances, the appellants could not beconvicted for the offence punishable under Section 323 of IPC or any other inferioroffence of the same nature. Learned 2nd Additional Sessions Judge, Chhindwara erred in convicted the appellants for theoffence punishable under Section 323 of IPC. 12.Consequently, the appeal filed by the appellants is hereby allowed. Theconviction and sentence directed by the trial Court against the appellants forthe offence punishable under Section 323 of IPC are hereby set aside. Theappellants shall be entitled to get the fine amount back, if they havedeposited the same before the trial Court. 13.Presence of the appellants is no more required before this Court and therefore,it is directed that their bail bonds shall stand discharged. 14.Copy of the judgment be sent to the trial Court forinformation and compliance.