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Madhya Pradesh High Court · body

2012 DIGILAW 937 (MP)

Halke v. State of M. P.

2012-09-27

N.K.GUPTA

body2012
JUDGMENT : (Deliveredon 27th day of September, 2012) Theappellants have preferred this appeal against the judgment dated 18.7.2000passed by the 1st Additional Sessions Judge, Chhatarpur in S.T. No.201/96, whereby the appellants were convicted for the offencespunishable under Sections 325/34 of IPC and sentenced for three years' R.I.with fine of Rs.1,000/-. In default of payment of fine, eachof them to undergo for six months' S.I. in addition. 2.The prosecution’s case, in short is that, on 29.4.1996 at about 8-9:00 p.m. inthe night, the complainant Pajan Singh (PW-1) wascoming back from the house of his uncle at village Budhoura (Police Station Laundi , District Chhatarpur ) alongwith his brother Kallu (PW-4) and wife Mst . Raju (PW-7) then, the accused persons surrounded him. They were armed with weaponslike sticks, Farsa and Barchhi etc. After looking at the culprits, the complainant Pajan Singh ran towards the forest and however, the accused persons chased him. Theaccused persons including the appellants assaulted the complainant Pajan Singh by Farsa , Ballum , Barchhi and stickscausing him so many injuries on his body. Thereafter, they left him in thefield. Bhullo Singh and Bhurelal were the persons, who saw the incident. After sometime, Kallu Singh and his father went to the spot and took the victim Pajan Singh to the Police Station, Laundi by a tractor,where he had lodged an FIR Ex.P/1. He was directed for his medico legalexamination and treatment to Primary Health Centre, Laundi .Dr. S.S. Chourasiya (PW-6) examined the victim Pajan Singh and gave his report Ex.P/5. He found nineinjuries to the victim. Out of them, four injuries were the lacerated woundscaused on the head, below the left knee, below the right knee and near theright middle finger of the victim, whereas he sustained some contusions on hishead, hands and back also. He was referred for his x-ray examination. Dr.Rajesh Khare (PW-2) performed his radio logicallyexamination and gave a report Ex.P/2. He found that 4th & 5th metacarpalbones of left hand were broken of the victim. His 7th rib of left side was alsobroken, whereas left tibia was also found fractured. After due investigation, acharge sheet was filed before the J.M.F.C. Laundi ,who committed the case to the Sessions Court and ultimately, it was transferredto the 1st Additional Sessions Judge, Chhatarpur . 3.The appellants abjured their guilt. They took a specific plea that they werefalsely implicated in the matter due to enmity. After due investigation, acharge sheet was filed before the J.M.F.C. Laundi ,who committed the case to the Sessions Court and ultimately, it was transferredto the 1st Additional Sessions Judge, Chhatarpur . 3.The appellants abjured their guilt. They took a specific plea that they werefalsely implicated in the matter due to enmity. The incident took place in the night and the victim could not see the actual culprits andtherefore, on the basis of suspicion only, the victim implicated so manypersons in the FIR. In defence , Bhurelal (DW-1) and Bhagwat (DW-2) were examined. 4.The learned 1st Additional Sessions Judge after considering the evidenceadduced by both the parties, acquitted the appellants from the charges ofoffences punishable under Sections 147, 148 & 307/149 of IPC, but convictedthem for the offence punishable under Sections 325/34 of IPC and sentenced asmentioned above, whereas other accused persons were acquitted from all thecharges. 5.I have heard the learned counsel for the parties. 6.The learned counsel for the appellants has submitted that there was only oneeyewitness i.e. the complainant himself, who was examined by the prosecution,whereas his brother and wife were not the eyewitnesses in the case. They werecooked witnesses. The incident took place in the night and the complainantcould not see the actual culprits, therefore, he could not say about thespecific assault committed by a particular accused. He implicated seven personsin the matter. However, four accused persons were acquitted by the trial Court.Under such circumstances, no offence is made out against the appellants. Theymay be acquitted by accepting their appeal. In alternate, it is submitted thatthe appellants Raja Singh and Devi Singh remained inthe custody for 39 days, whereas the appellant Halke Singh remained in the custody for 19 days. They have faced the trial and appealfor last 16 years and therefore, it is prayed that they may not be sent to thejail again. 7.On the other hand, learned Panel Lawyer has submitted that the conviction aswell as the sentence directed by the trial Court appears to be correct. Thereis no basis by which any interference can be done in the conclusion drawn bythe trial Court. 8.After considering the submissions made by the learned counsel for the partiesand looking to the facts and circumstances of the case, it is to be consideredas to whether the appeal filed by the appellants can be accepted? and whether the sentence directed against them can bereduced? 9. 8.After considering the submissions made by the learned counsel for the partiesand looking to the facts and circumstances of the case, it is to be consideredas to whether the appeal filed by the appellants can be accepted? and whether the sentence directed against them can bereduced? 9. Pajan Singh (PW-1) has stated about the incident thatthe appellant Halke Singh had a Farsa in his hand, whereas the appellant Devi Singh had a Barchhi and the appellant Raja Singh had a stick in hishand. Initially, they surrounded him in front of his uncle' house but he ranaway from the spot and the appellants captured him in the field and assaultedhim by various weapons. Kallu Singh (PW-4) and Mst . Raju (PW-7) have stated thatthe victim Pajan Singh was taken by the appellantstowards the field. They tried to tell about the story of assault caused infront of the house of their uncle but according to the complainant Pajan Singh, no assault took place in front of his uncle'shouse and therefore, the story told by Kallu Singh aswell as Mst . Raju appearsto be incorrect. In the present case, the injuries of the complainant were dulyproved by Dr. S.S. Chourasiya (PW-6). He found nineinjuries to the complainant caused by hard and blunt object. Out of them, fourinjuries were such, which could be caused by sharp objects having no sharpnessas such. Out of such injuries, Dr. Rajesh Khare (PW-2) found that three injuries were grievous innature. His one rib, one finger and one leg sustained fractures. 10. The most important document in the case was FIREx.P/1. The incident took place on 29.4.1996 at about 8-9:00 p.m. in the night, whereas FIR was lodged on30.4.1996 at about 4:00 a.m. in themorning i.e. the FIR was lodged after seven hours of the incident. In the FIR,it was mentioned that the place of incident was quite away from the PoliceStation and therefore, such delay was caused. However, the complainant Pajan Singh (PW-1) has accepted in his cross examinationthat he was taken to the Police Station by a tractor and from going to hisvillage to the Police Station, 15-20 minutes were required in travelling with the tractor and therefore, his travelling from his village to the Police Station must becompleted within ½ an hour. However, the complainant Pajan Singh (PW-1) has accepted in his cross examinationthat he was taken to the Police Station by a tractor and from going to hisvillage to the Police Station, 15-20 minutes were required in travelling with the tractor and therefore, his travelling from his village to the Police Station must becompleted within ½ an hour. Kallu Singh (PW-4) hasstated that when the appellants were chasing the victim Pajan Singh, he ran towards his house to call his father and thereafter, he went tothe spot along with his father, therefore, he must have reached to the spotwithin ½ an hour and hence, the victim must have brought to the village withinone hour of the incident. Under such circumstances, the FIR could be lodgedwithin two hours of the incident, but it appears that the FIR was lodged withthe delay of at least five hours and no reasonable explanation could be shownby the complainant Pajan Singh for the delay in thisregard. 11.The incident took place in the night hours and therefore, it was not possiblefor the complainant and the witnesses to identify the actual culprits unlessthere was any source of light at the spot. The delay in lodging the FIRindicates two possibilities; firstly, that the victim was assaulted by theunknown persons at the field and a false FIR was lodged against the appellantsand a story was prepared that the complainant was returning from his uncle'shouse alongwith his brother Kallu Singh and wife Mst . Raju and; secondly, it was not known to father of the victim that Pajan Singh was lying in the field and when the witnessesinformed him that the victim was lying in the field, he was taken to thevillage and thereafter, he was taken to the Police Station and a report couldbe lodged. Under both the situations, it appears that the victim, his familymembers and relatives prepared a false report against the appellants after duedeliberations. 12. Pajan Singh (PW-1) has admitted in his cross-examinationthat the a prosecution was initiated against him that he abducted one Sushila and committed rape upon her, whereas Sushila was daughter-in-law of the appellant Halke Singh and therefore, the complainant could presumethat he was assaulted by the person related to the prosecutrix Sushila and therefore, he could lodge an FIR againstsuch persons on the basis of suspicion only. 13.In the FIR Ex.P/1, the complainant Pajan Singh hasmentioned that the incident took place at the field was viewed by Bhullo Singh and Bhurelal (DW-1).The police could not search Bhullo Singh, who saw theincident and therefore, no case diary statement was available of Bhullo Singh, whereas Bhurelal was given up by the prosecution and he appeared as a defence witness (DW-1). Bhurelal has stated that he saw thecomplainant Pajan Singh lying on the field and Pajan Singh told the witness Bhurelal that he could not see the culprits, who assaulted him. There is no reason bywhich the testimony of the witness Bhurelal can bebrushed aside. In the Court, the complainant Pajan Singh has stated that the alleged incident was seen by Lakhan Singh and Bhurelal , but he did not tell that if theincident was seen by Lakhan Singh then as to why, thepolice could not examine Lakhan Singh and as to whyhe did not give the name of Lakhan Singh so that hecould be examined in the Court. Under such circumstances, the eyewitness who were present at the spot are not supportingthe evidence of the complainant. 14.According to the statement of the complainant Pajan Singh and narration given in the FIR Ex.P/1, when the complainant wassurrounded by the appellants, he ran away towards the field, whereas Kallu Singh (PW-4) has stated that the appellant Halke Singh tried to assault him by an axe but he could besaved and thereafter, his brother Pajan Singh rantowards the field. It is apparent that the appellants Halke Singh etc. had a grievance with the complainant, but they did not try toassault anyone else. It is not proved either by the complainant Pajan Singh or Mst . Raju that the appellant Halke Singh tried to assault the witness Kallu Singh by anaxe and therefore, it appears that the witness Kallu Singh told a falsehood about assault caused to him. Similarly, Kallu Singh has stated that when he reached to the field,he found that the hands and feet of the complainant were tied by a rope but itis nowhere corroborated either by the complainant or by any other witness.Similarly, such type of facts were not mentioned inhis case diary statement Ex.D/2. He has given the description of arms kept bythe appellants, but his description given in the Court was quite different fromhis description given in the case diary statement Ex.D/2. He has given the description of arms kept bythe appellants, but his description given in the Court was quite different fromhis description given in the case diary statement Ex.D/2. Under suchcircumstances, it appears that the testimony of the witness Kallu Singh is not believable. He did not see the appellants at that time, when theychased the complainant. 15.Similarly, Mst . Raju hasstated that the appellants having axe, Farsa etc. andthey took the complainant towards the field but according to the statement ofthe complainant, the appellants did not take him to the field, whereas hehimself ran towards the field. Similarly, the description of arms kept by theappellants is different as given by this witness in her case diary statement. Mst . Raju has accepted that heruncle's house is surrounded by so many houses, but she also accepted that onher shouting, nobody came from those houses. On the contrary, she tried to showthat those houses were locked and therefore, there was no possibility forappearance of any persons residing in that locality. Looking to the statements givenby Kallu Singh & Mst . Raju , it appears that since the incident took place at thefield in the night and the complainant did not have any opportunity to see theactual culprits, therefore, a story was cooked that the appellants surroundedthe complainant in front of his uncle's house and according to the story, roleof the witness Kallu Singh and Mst . Raju was also fixed but, if it was true a story thenno material contradictions could come in the statements of Kallu Singh & Mst . Raju .Under such circumstances, it appears that the appellants never surrounded thecomplainant in front of his uncle's house but the entire incident took place inthe field. Also it is unnatural for the complainant that when he was surroundedby the appellants he ran toward the field, whereas he could not get any help inthe field and he could be captured by the appellants. On the contrary, it wasfor him to run towards his house so that he could shout in the street and hecould get the help of villagers in the village itself. On the contrary, it wasfor him to run towards his house so that he could shout in the street and hecould get the help of villagers in the village itself. Looking to the unnaturalconduct of the complainant, it appears that no such alleged incident took placein front of the house of his uncle and such portion of story was unnecessarilyadded in the FIR to establish the fact that the appellants were identified bythe complainant and his brother and wife. 16.Under such circumstances, if a doubt is created that no incident took place infront of uncle's house of the complainant, then there was no opportunity to thewitness Kallu Singh and Mst . Raju to see the culprits. 17.The incident took place at the field in the night and the complainant Pajan Singh could not tell about any arrangement of light,by which he could see the culprits. Under suchcircumstances, the testimony of the witness Bhurelal (DW-1) can be accepted that the unknown persons assaulted the victim near thefield and the victim was lying at the spot and thereafter, Bhurelal went to his father's house and informed him that the victim was lying in thefield and then, the victim was taken to the Police Station and subsequently tothe hospital. 18.On the basis of aforesaid discussion, a doubt is created that the complainantwas assaulted by the unknown persons and since there was an enmity between theappellant Halke Singh and the complainant, therefore,the complainant implicated so many persons on the basis of suspicion only. Thecomplainant could not specifically say that which sort of assault was caused by a particular appellants . In FIR also, the complainantmentioned about the weapons kept by the appellants but he could not inform thatby such weapons, whether a particular assault was committed by the appellant onwhich part of his body. If the appellant Devi Singhhad a Barchhi and appellant Halke Singh had a Farsa then, there was no problem to theseculprits to assault the victim by such weapons and in such a situation, thecomplainant would have sustained some incised wounds caused by Farsa and Barchhi but accordingto the Dr. S.S. Chourasiya (PW-6), no incised woundwas found to the victim. Therefore, the weapons shown in the hands of theappellants Devi Singh and Halke Singh did not match with the injuries caused to the victim Pajan Singh. S.S. Chourasiya (PW-6), no incised woundwas found to the victim. Therefore, the weapons shown in the hands of theappellants Devi Singh and Halke Singh did not match with the injuries caused to the victim Pajan Singh. 19.On the basis of aforesaid discussions, it is nowhere clear that, who assaultedthe victim Pajan Singh causing him various grievousinjuries and, therefore the overt acts of the appellants are nowhere provedbeyond doubt, by which they can be convicted for the offence punishable underSection 325 of IPC or any inferior offence of same nature either directly orwith the help of Section 34 of IPC. If a doubt is created then, the benefit ofdoubt is to be given to the accused person. The learned 1st Additional SessionsJudge has erred in convicting the appellants for the offences punishable underSections 325/34 of IPC. 20.It is established that it was not proved beyond doubt that the appellantsassaulted the victim causing him the grievous injuries and therefore, theappellants cannot be convicted for the offence punishable under Sections 325/34of IPC in such a doubtful conditions . They will getthe benefit of doubt. Under such circumstances, the appeal filed by theappellants can be accepted and hence, it is hereby allowed. The conviction aswell as the sentence directed against the appellants for the offencespunishable under Section 325/34 of IPC is hereby set aside. They are acquittedfrom all the charges levelled against them by givinga benefit of doubt. They would be entitled to get the fine amount back, if theyhave deposited the same before the trial Court. 21.The appellants are on bail. Their presence is no more required before thisCourt and therefore, it is directed that their bail bonds etc. shall standdischarged. 22.Copy of the judgment be sent to the trial Court alongwith its record for information and compliance.