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Madhya Pradesh High Court · body

2012 DIGILAW 905 (MP)

State of M. P. v. Veeru

2012-09-14

N.K.GUPTA

body2012
JUDGMENT 1. The appellant-State has preferred this appeal against the judgment dated 11.9.1997 passed by the Chief Judicial Magistrate, Raisen in Criminal Case No.510/1996 whereby the respondents were acquitted from the charges of offence punishable under sections 147, 148, 342, 325 and 326 read with section 149 of IPC. 2. Prosecution’s case, in short, is that on 18.8.1990 at about 8:00 p.m. the complainant Mangal Singh (PW1) was watching TV in the shop of Nathu Miya at Village Amrawad (Police Station Raisen, District Raisen). At about 8:30 p.m. respondents Veeru @ Ram Chandra, Omkar, Prem and Narbada along with one Kishan came to the spot and covered Mangal Singh’s eyes with a strip of cloth and thereafter, they assaulted the complainant with sticks. Around 3:00 - 4:00 a.m. in the night they took him to the Chikni Ghati and respondents Veeru and Omkar chopped off four of his fingers from both the hands with the help of an axe. At that time the respondents Prem and Narbada and one Kishan held the complainant bound with a rope. The offence was caused by the respondents because of the enmity between the complainant and the respondents caused by the complainant taking his cattle through the medh of the field of the respondents. The complainant was left at the hospital where he lodged a Dehati Nalishi Ex.P-1 before ASI Chhatarpal Singh Solanki (PW9). A requisition for his medical examination was given by Shri Solanki. Dr. J.P. Naik (PW6) examined the complainant and gave his report Ex.P-9. He found some blunt injuries on the back, right thigh and left elbow of the victim Mangal Singh but, two fingers of his left hand and two fingers of his right hand were found cut with a sharp cutting weapon and, therefore, the victim was referred for his X-ray examination. Dr. A.C. Agrawal (PW7) after performing the radiological examination of the complainant gave his report Ex.P-11. He found that there were fractures caused due to four fingers in both his hands being cut. In the right hand the first phalanx of ring finger and middle finger were absent and the fracture was visible. Similarly in the left hand the first phalanx of ring finger and middle finger were absent and fractures were found on such bones. After due investigation a charge-sheet was filed before the Chief Judicial Magistrate, Raisen. 3. The respondents abjured their guilt. Similarly in the left hand the first phalanx of ring finger and middle finger were absent and fractures were found on such bones. After due investigation a charge-sheet was filed before the Chief Judicial Magistrate, Raisen. 3. The respondents abjured their guilt. They did not take any specific plea but, they have stated that they were falsely implicated in the matter due to enmity. The complainant was a criminal who was in a habit to do robbery on the highway and, therefore, how his injuries were caused was not known to them. No defence evidence was laid. 4. The learned Chief Judicial Magistrate, Raisen after considering the prosecution’s evidence acquitted the respondents from all the charges. 5. I have heard the learned counsel for the parties. 6. The learned Panel Lawyer has submitted that the trial Court has wrongly disbelieved the complainant. He was assaulted by the respondents and especially the respondents Veeru and Omkar cut his four fingers with the help of an axe. Such an act could not be done by two persons unless others would have held the victim and, therefore, it is apparent that an unlawful assembly was constituted by the respondents. Under such circumstances, it is submitted that the respondents be convicted for offence punishable under section 326 read with sections 149 and 148 of IPC and be sentenced accordingly. 7. On the other hand the learned counsel for the respondents has submitted that the complainant lodged a Dehati Nalishi which cannot be treated as FIR. In support of his contention he placed his reliance upon the judgment passed by Single Bench of this Court in the case of Gulab v. State of M.P. [1991(II) MPWN 182]. It is further submitted that the FIR lodged by the complainant himself was not trustworthy. All the eye-witnesses turned hostile. A cooked eye-witness Karan Singh (PW8) was created by the prosecution. There were many deformities in the evidence of the complainant who was the sole eye-witness and, therefore, his testimony cannot be believed. In this context, reliance is placed on the judgment passed by Hon’ble the apex Court in the case of Sudhir and another v. State of M.P. [1985 JLJ 555 (SC)=1985 Cr.LJ 795]. Under such circumstances, it is prayed that the appeal may be dismissed. 8. In this context, reliance is placed on the judgment passed by Hon’ble the apex Court in the case of Sudhir and another v. State of M.P. [1985 JLJ 555 (SC)=1985 Cr.LJ 795]. Under such circumstances, it is prayed that the appeal may be dismissed. 8. 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 State can be accepted? If yes, then what would be the sentence? 9. First of all, it is to be considered as to whether any grave injury was caused to the victim. Dr. Naik (PW6) has proved his MLC report Ex.P-9. He found some blunt injuries to the complainant on his back, thigh and left elbow but, two fingers of each hand were found cut and, therefore, the complainant was referred for X-ray examination. Dr. A.C. Agrawal (PW7) gave his report Ex.P-11. He found that the first phalanx of the middle and ring fingers of both the hands were missing and their ends found fractured because they were cut with a sharp weapon. Under such circumstances, it is apparent that the complainant sustained grave injury caused by sharp cutting weapon. The complainant Mangal Singh (PW1) has submitted that he was watching TV in the shop of Latif and the respondents held him and tied him with a rope and took him to the house of Omkar where they assaulted him with sticks. Thereafter, he was taken to Chikni Ghati. He was held by the respondents for the entire night and thereafter, Veeru held his hands and Omkar assaulted him with an axe and thus, his four fingers were chopped off. He has also stated that at the time the respondents Prem and Narbada held his foot and neck. However, the various eye-witnesses Abdul Latif (PW2), Rafiq Miya (PW3) and Pannalal (PW5) have turned hostile. Pannalal has stated that the brother of the complainant, Karan Singh, came to him and asked him to go and stop the quarrel but, when he went to the spot there was nobody there. 10. Karan Singh (PW8) has stated that when Mangal Singh was watching TV he was also there. The respondents held Mangal Singh and assaulted him at the spot and thereafter, they tied him with a rope and assaulted with sticks. 10. Karan Singh (PW8) has stated that when Mangal Singh was watching TV he was also there. The respondents held Mangal Singh and assaulted him at the spot and thereafter, they tied him with a rope and assaulted with sticks. Thereafter, they told that they were taking the complainant Mangal Singh to the police station and Karan Singh and Chowkidar Pannalal followed them. In Chikni Ghati they chopped off the fingers of the complainant. Looking at the case diary statements of this witness, it appears that he was not present at the shop of Latif Khan, nor he followed the respondents and the complainant. If he had followed the respondents, then it is no where supported by Pannalal (PW5). In his case diary statement Karan Singh did not say that the incident of Chikni Ghati took place before him. If the witness Karan Singh was following his brother then he could take his brother to the police station or to the hospital or he could go to the police station to call the police but, he has not stated such a fact that he went to call the police. Under such circumstances, the evidence of Karan Singh appears to be an after thought. He did not visit along with Mangal Singh to Chikni Ghati. Similarly he has stated that the respondents assaulted his brother on the spot whereas, the complainant has stated that he was tied with a rope and taken to the house of Omkar and thereafter, in the house of Omkar he was assaulted with sticks. Looking at the contradiction that the complainant was taken to the house of Omkar and the witness Karan Singh did not know that the complainant was taken to the house of Omkar, indicates that Karan Singh was not present at the place from where the complainant was taken by the respondents and, therefore, Karan Singh is not at all an eye-witness. If Karan Singh was an eye-witness in the case, then there must have been no problem to the victim in stating his name in the Dehati Nalishi Ex.P-1 but, his name was no where mentioned by the complainant in the Dehati Nalishi Ex.P-1. Under such circumstances, it appears that being the brother of the complainant, the witness Karan Singh, tendered himself to be an eye-witness. However, he was not present at the time of any of the incidents. 11. Under such circumstances, it appears that being the brother of the complainant, the witness Karan Singh, tendered himself to be an eye-witness. However, he was not present at the time of any of the incidents. 11. It is strange that Abdul Latif, Rafiq Miya and Pannalal turned hostile. The testimony of the complainant Mangal Singh is totally denied by these witnesses. It is apparent that the relations between the respondents and the complainant were inimical. Enmity is a double edged weapon. One can be falsely implicated due to enmity and on the other hand one can be assaulted due to enmity. In the present case, the evidence given by the complainant is to be considered only. It is true that his version is proved by the medical evidence but, if he would have sustained such injuries by unknown persons then he could shift the guilt of someone else to the respondents. Enmity between the parties was there but, the overt act of the respondents as told by the victim Mangal Singh appears to be unnatural. The respondents were not hardened criminals. There was no case found registered against them in the past and, therefore, it was not possible for them to take the complainant after tying him with the rope and thereafter, again to assault him in the house of Omkar and keep him for the entire night and thereafter, take him to Chikni Ghati and cut his four fingers.If the respondents, intended to assault the victim they could take him to the house of Omkar and assault him in that house and thereafter, he could be thrown anywhere. Under such circumstances, the incident narrated by the complainant appears to be unnatural. 12. Secondly, in the FIR Ex.P-1, he has mentioned that the respondents took him to the hospital and they left him in the hospital. On the contrary he told before the Court that since the police came to the spot, the respondents ran away. ASI Chhtrapal Singh Solanki (PW9) has stated that he went to the District Hospital, Raisen on 19.8.1990 and got the Dehati Nalishi Ex.P-1 written as stated by the complainant Mangal Singh. No Police Officer has claimed that he rescued the complainant and, therefore, the version of the complainant before the Court that he was rescued by the police appears to be incorrect. No Police Officer has claimed that he rescued the complainant and, therefore, the version of the complainant before the Court that he was rescued by the police appears to be incorrect. Similarly, he has stated that the respondents Veeru and Omkar were arrested at the spot by the police but, looking at the arrest memo Ex.P-5 all the respondents were arrested on 20.8.1990. Under such circumstances, the fact told by the complainant that he was saved by the police and the police arrested the respondents Veeru and Omkar from the spot appears to be incorrect. 13. The complainant has accepted in the Dehati Nalishi Ex.P-1 that the respondents Veeru and Omkar took him to the hospital. If Veeru and Omkar had cut the fingers of the complainant then they were clearly brutal to the complainant and then they had no reason for taking the complainant to the hospital after the incident. No explanation on this point could be given by the complainant. It appears that the respondents Veeru and Omkar took the injured complainant to the hospital and, therefore, it was easy for the complainant to implicate them in the crime along with the other respondents. 14. Under such circumstances, where the testimony of the complainant is no where corroborated by any eye-witness, his story is unnatural. There was no reason for the respondents to keep the complainant for the entire night with them and if Veeru and Omkar had cut his fingers then there was no need for them to take the complainant to the hospital. In the light of the judgment passed by Hon’ble the apex Court in the case of Sudhir (supra), several infirmities are found in the evidence of the victim and, therefore, the sole testimony of the victim cannot be relied upon. It is not proved beyond doubt that the respondents had assaulted the complainant Mangal Singh and they are entitled for the benefit of doubt. It is not proved beyond doubt that five persons were involved in the crime or the respondents were the persons who, assaulted the complainant. Under such circumstances, the respondents could not be convicted for offence punishable under section 326 of IPC or any inferior offence of similar nature either directly or with the help of section 34 or 149 of the IPC. Under such circumstances, the respondents could not be convicted for offence punishable under section 326 of IPC or any inferior offence of similar nature either directly or with the help of section 34 or 149 of the IPC. They could not be convicted for offence punishable under section 148 or 147 of IPC because it was not proved that an unlawful assembly was constituted. Hence, if the learned Chief Judicial Magistrate has given the benefit of doubt to the respondents and acquitted them then there is no basis by which any interference can be drawn to the conclusions drawn by the learned CJM, Raisen. 15. On the basis of the aforesaid discussion the appeal filed by the State cannot be accepted. Consequently, it is hereby dismissed. The findings drawn by the learned CJM are hereby maintained. 16. The respondents are on bail. Their presence is no more required before this Court, therefore, it is directed that their bail bonds shall stand discharged. 17. Copy of the judgment be sent to the trial Court along with its record for information.