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Madhya Pradesh High Court · body

2013 DIGILAW 587 (MP)

Laxminarayan v. State of M. P.

2013-05-02

A.K.SHRIVASTAVA

body2013
JUDGMENT Feeling aggrieved by the judgment of conviction and order of sentence dated 22-2-2013 passed by learned Sessions Judge, Hoshangabad in Sessions Trial No. 245/2012 convicting the appellant under Section 326, IPC and thereby sentencing him to suffer 4 years' RI and fine of Rs. 500/-, in default of payment of fine further RI for 1 month, the appellant has knocked the doors of this Court by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973. 2. No exhaustive statements of fact are required to be narrated for the purposes of disposal of this appeal since in elaboration they have been mentioned in Para 3 of the impugned judgment. For ready reference, it would be suffice to mention that the charges punishable under Section 326 and also under Section 506 Later Part IPC were framed against the accused/appellant, which he denied and requested for the trial. The prosecution thereafter, examined their witnesses and also proved certain documents. The defence of the appellant is that the complainant was molesting his daughter and when he objected and made complaint to him in that regard, he has been falsely roped. In support of his defence, the accused examined his own daughter Kirti as D.W. 1. 3. The learned Trial Court on the basis of evidence placed on record came to hold that the charge under Section506 Later Part IPC has not been proved and eventually acquitted the accused/appellant from the said charge. However, the learned Trial Court on the basis of the evidence placed on record came to hold that the appellant did commit the offence under Section 326, IPC and eventually convicted him and passed the sentence which I have mentioned hereinabove. In this manner, this appeal has been filed by the appellant. 4. The contention of the learned Counsel for the appellant is that from the very beginning the defence of the appellant is that because the complainant-injured Jitendra Kumar Choure (P.W. 1) was molesting and passing lewd words as well as commenting upon his daughter Kirti alias Pushpa (D.W. 1) and when he made objection to the complainant, he became annoyed and gave threat to falsely implicate him. It has been further contended by learned Counsel that in support of his defence which the appellant has taken he also examined his own daughter Kirti alias Pushpa as D.W. 1. It has been further contended by learned Counsel that in support of his defence which the appellant has taken he also examined his own daughter Kirti alias Pushpa as D.W. 1. Thus, it has been put forth by learned Counsel that looking to the defence which has been taken by the appellant, due credence should have been given to it and the evidence of the defence witness should not be ignored merely because the witness has been examined from the defence side. By putting a deep dent on the evidence as well as the story of the prosecution, it has been submitted by learned Counsel that as per the prosecution's own case the incident had occurred on 8-3-2012 at 10 p.m. but for the best reasons known to the prosecution the injured was sent for medical examination after more than 24 hours since he was sent on 9-3-2012 at 11.55 p.m. In this regard, my attention has been drawn to the evidence of the MLC Doctor, Dr. Shobhana Choukse (P.W. 10). Learned Counsel has also invited my attention to the contradiction and omissions which have appeared in the testimony of Jitendra Kumar Choure (P.W. 1). Hence, it has been submitted by learned Counsel that looking to the overall evidence placed on record as well as the defence taken by the appellant the case appears to be cooked against the appellant and therefore, it has been prayed that this appeal be allowed and the judgment of conviction and order of sentence passed against the appellant be set aside. 5. On the other hand, learned Public Prosecutor argued in support of the impugned judgment and submitted that cogent reasons have been assigned by learned Trial Court and therefore, there is no need to interfere in this appeal. According to the learned Public Prosecutor this appeal sans substance and hence, it be dismissed. 6. Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed. 7. In the present case, the injured witness is Jitendra Kumar Choure (P.W. 1). In his examination-in-chief itself he has stated that the report was lodged by his father, but, on going through the FIR (Exh. P-1) it is gathered that the same was lodged by this witness. Indeed, it is the prosecution's own case that the FIR was lodged by the complainant-injured Jitendra Kumar Choure (P.W. 1). In his examination-in-chief itself he has stated that the report was lodged by his father, but, on going through the FIR (Exh. P-1) it is gathered that the same was lodged by this witness. Indeed, it is the prosecution's own case that the FIR was lodged by the complainant-injured Jitendra Kumar Choure (P.W. 1). True, after changing his version this witness has submitted that the FIR (Exh. P-1) bears his signature. Even in his second version he did not say that he lodged the FIR. Hence who lodged the FIR, it becomes highly doubtful. But, the legal position is very clear and merely on this discrepancy as to who lodged the FIR, the judgment of conviction cannot be somersaulted. It is a well-settled law that the FIR is not a substantive piece of evidence and it can only be used for corroboration and contradiction. Thus, for corroboration and contradiction the FIR (Exh. P-1) has been scanned by me and I find that there is material contradictions in the FIR that who lodged the FIR. That apart, the FIR is surrounded by heavy dark clouds or doubt for another reason that in the FIR, the pharsa has been assigned to the appellant but when the injured appeared in the Court as P.W. 1 he has categorically stated that axe-blow was given by the appellant. This contradiction was clarified and he has deposed that he understands the difference between pharsa and the axe and firmly says that the appellant dealt axe-blow upon him, but, in the FIR, this Court finds that pharsa was alleged to have been used by the appellant. 8. The third circumstance which holds the FIR to be doubtful is that in the FIR it has been stated that on the left side of his head and upon the nose the blow of pharsa was dealt by the appellant but in the MLC report (Exh. P-10), there is no injury upon the head. That apart, there are material contradiction and omission in the deposition of injured which does not find place in the FIR (Exh. P-1). In Para 6 of his cross-examination this witness has admitted that the incident had occurred in the shop and at that juncture several persons were sitting with him. P-10), there is no injury upon the head. That apart, there are material contradiction and omission in the deposition of injured which does not find place in the FIR (Exh. P-1). In Para 6 of his cross-examination this witness has admitted that the incident had occurred in the shop and at that juncture several persons were sitting with him. The suggestion made to him that while he was sitting in his shop along with other persons at that juncture appellant arrived and firstly the exchange of abuses took place between them and thereafter the pharsa blow was given by the appellant, has been denied by the injured and he has stated that how this type of version has been mentioned in the FIR (Exh. P-1) he cannot say. Thus, the genesis of the occurrence becomes shaky and doubtful. In the Court statement, the injured is saying that when he was going towards home on the way appellant met and dealt the blow while in the FIR (Exh. P-1) the factum of giving blow by the appellant has been stated that he was sitting at the bus stand in front of the shop of Mannu where the appellant came and dealt the blow of pharsa. Thus, according to me, there is material contradiction and omission in the FIR and the Court statement of the injured as a result, the case of the prosecution becomes highly doubtful. 9. Apart from the aforesaid, as per the statement of the injured immediately after the incident he was referred by the police to the hospital where a doctor examined him after two hours of the incident but according to Dr. Shobhna Choukse (P.W. 10), the injured Jitendra Kumar Choure (P.W. 1) was sent on next day, i.e., 9-3-2012 at 11.55 p.m. The Dr. Choukse (P.W. 10) in Para 9 of his cross-examination has categorically admitted that the duration of the injury was between 2 to 4 hours. On the contrary, the case of the prosecution as well as the stand taken by the complainant-injured in his deposition sheet as well as the FIR is that the incident had occurred on 8-3-2012. Hence, according to me, this amounts to material contradiction which raises heavy doubt about the genesis of the occurrence. 10. On the contrary, the case of the prosecution as well as the stand taken by the complainant-injured in his deposition sheet as well as the FIR is that the incident had occurred on 8-3-2012. Hence, according to me, this amounts to material contradiction which raises heavy doubt about the genesis of the occurrence. 10. I find sufficient force in the submission of the learned Counsel for the appellant that because the injured-complainant was ill-treating and passing lewd words against the daughter of the appellant who was going to be married after one month and was also taunting upon her and when the appellant asked him not to do so, he became annoyed and gave threat of roping the appellant falsely. This defence was also confronted to the injured during the cross-examination. No doubt, it is true that the suggestions were denied by the injured but his defence was taken by the appellant in his statement recorded under Section 313, Cr. PC also. That apart, he has also examined his daughter Kirti alias Pushpa (D.W. 1) who has categorically stated that appellant was ill-treating and was trying to outrage her modesty and gave threat to her that he will not allow her to marry. This defence witness was cross-examined but nothing has been carved out in order to disbelieve her. Merely, because no report was lodged about trying to outrage the modesty of this girl it cannot be said that the defence version has become weak. 11. It is well-settled in law that the standard of proof of the defence is not at par with that of the prosecution where the prosecution is obliged to prove its case beyond reasonable doubt. The credential value of the defence witnesses is always at par with that of the prosecution and they should not be disbelieved merely because the witnesses have been examined by the defence. There is no law as such that the defence witnesses would always say lie. It is equally true that the prosecution witnesses will also not always say the true version. The Court is required to see that whether probable defence has been raised and has also been proved. In this regard, I may profitably place reliance upon three decisions of Supreme Court, State of U.P. Vs. Babu Ram, AIR 2000 SC 1735 , State of Haryana Vs. The Court is required to see that whether probable defence has been raised and has also been proved. In this regard, I may profitably place reliance upon three decisions of Supreme Court, State of U.P. Vs. Babu Ram, AIR 2000 SC 1735 , State of Haryana Vs. Ram Singh, AIR 2002 SC 620 and Munshi Prasad and others Vs. State of Bihar, AIR 2001 SC 3031 . Hence, I am of the view that the defence which has been taken by the appellant that the injured was ill-treating and was trying to outrage the modesty of his daughter and when the appellant objected and asked him not to do the said vile act the complainant became annoyed and falsely roped the appellant. 12. For the reasons stated hereinabove, I am unable to uphold the conviction of the appellant. Ab judicatio, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is set aside and the appellant is acquitted from the charge under Section 326, IPC. The appellant is in jail, he be set at liberty forthwith, if not required in any other case. The amount of fine, if deposited, be refunded to him.