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Madhya Pradesh High Court · body

2014 DIGILAW 1608 (MP)

Basant Rathor v. State of M. P.

2014-12-05

SUBHASH KAKADE

body2014
JUDGMENT : Subhash Kakade, J. 1. This appeal has been filed by the appellants against the judgment of conviction dated 21.12.06 passed by learned Addl. Sessions Judge, Umaria in Sessions Trial No.52/06 whereby the appellant no.1 and 3 Basant Rathor and Magani Bai have been sentenced to undergo R.I. for six months with fine of Rs.500/- under Section323/34 of IPC, and appellant no.2 Urmila Bai has been sentenced to R.I. for six months with fine of Rs.500/- under Section 323 of IPC. 2. According to the prosecution, on 29.06.05, present three appellants and acquitted seven accused persons knocked the door of house of complainant Semiya Bai and when she open the door appellant no.2 Urmila Bai caught hold her hair and brought her outside the house and abused her as Witch. The appellants no.1, 3 and their companions also abused her and repeated that she is a Witch and to punish and insult naked her in a public place. Semiya- daughter of complainant tried to intervene the matter, she was also beaten. Thereafter few other persons came there and intervened. The matter has been reported to the police station and offence under Sections 448,294,323,354A, 506-B/34 of IPC was registered against the appellants. 3. After usual investigation, challan has been filed. The accused abjured the guilt. In order to bring home the charges against the appellants, prosecution examined eleven witnesses and placed FIR on record and exhibited the documents vide Ex.P/1 to P/20. The defence examined Naresh Kumar Patel, Head Constable in its support. 4. The learned Additional Sessions Judge acquitted the co-accused persons Keshri Rathore, Bhanu Rathore, Dhaniram Rathore, Ramnath Rathore, Vaishali Rathore, Phoolbai and Aasmati from all the charges leveled against them and also acquitted the appellant Basant Rathore, his wife Urmila Bai and mother Magani Bai from the charges punishable under Sections 452, 294, 506 Part-II and 354-A of IPC but found the appellants guilty for the offence punishable under the aforesaid Sections of the IPC and convicted and sentenced them as above, hence this appeal. 5. Learned Senior counsel for the appellants mainly stress on the fact that learned trial Court not only acquitted the co-accused persons but also have acquitted the appellants from various charges, hence, conviction on the same set of evidence to the present appellants is erroneous as well as bad in law. 6. Per contra, Shri Umesh Pandey, learned Govt. 5. Learned Senior counsel for the appellants mainly stress on the fact that learned trial Court not only acquitted the co-accused persons but also have acquitted the appellants from various charges, hence, conviction on the same set of evidence to the present appellants is erroneous as well as bad in law. 6. Per contra, Shri Umesh Pandey, learned Govt. Advocate for the respondent/State has submitted that after due appreciation of prosecution evidence, the learned trial court has found the offence proved against the applicants, which requires no interference. 7. Heard learned counsel for the parties, gone through the impugned judgment passed by learned trial Court and statements of prosecution witnesses particularly Smt. Semiya Bai (PW/1), I am of the view that so far as the appeal in connection with the conviction and sentence of the appellants no.1 and 3 Basant Rathore and his mother Magni Bai for the offence punishable under Section 323/34, IPC is concerned, there is no material or cogent evidence to maintain the order of conviction and sentence against them. 8. Section 34 of IPC recognizes the principle of vicarious liability in criminal justice delivery system. It makes a person liable for commission of an offence not committed by him, but by another person with whom he shared the common intention. This rule of evidence does not create a substantive offence. The section gives statutory recognition to the common sense principle that if more than two persons intentionally do a thing jointly, it just the same as if each of them has done individually. Common intention essentially being an state of mind. It is very difficult to produce the evidence to prove such intention, therefore, in most of the cases it has to be inferred from the act; like the conduct of the accused, other relative circumstances of the case, the interference can be gathered from the manner in which the accused behaved. 9. In order to bring home the charge of common intention for conviction of the appellants no.1 and 3, the prosecution was bound to prove the case by producing cognate evidence whether direct or circumstantial that the appellants planned or meeting of minds with the appellant no.2 Urmila Bai to commit the offence punishable under Section 323 of IPC for which the appellants no.1 and 3 were convicted with the aid of Section 34 of IPC. 10. 10. In case in hand, the allegations against the appellants no.1 and 3 seems that being the relatives of the appellant no.2, they are arrayed as the accused. 11. During her statement Semiyabai (PW/1) did not state any thing directly against appellant No.1 Basant and his mother appellant No.3 Magnibai to the effect that they had shared the common intention of appellant No.2 Urmilabai. Semiyabai (PW/1) simply stated the presence of appellant Nos. 1 & 3 with appellant No.2. This statement of Semiyabai (PW/1) when looked with her admissions during cross-examination does not show that appellant Nos. 1 & 3 shared the common intention of appellant No.2 and also does not establish that these two persons intentionally doing a thing jointly with appellant No.2 Urmilabai. In above facts and circumstances, it is apparent from the record that learned Courts below committed error while convicting and sentencing appellant No.1 Basant and his mother appellant No.3 Magnibai for the offence punishable under Section 323/34 of IPC, hence, their conviction and sentence is set aside and they are acquitted from the charge for the offence punishable under Section 323/34 of IPC. 12. After going through the impugned judgments passed by learned Courts below and statement of star witness Semiyabai (PW/1), the Court is of the opinion that in the case of appellant No.2 Urmilabai no error has been committed by learned Courts below in recording the guilt of appellant No.2 Urmilabai. Testimony of Semiyabai (PW/1) is of sterling quality and can be the basis of conviction of appellant No.2 Urmilabai and cannot be brushed aside on these simple reasons that some contradictions, omissions are present in her statement. Other discrepancies which have been highlighted do not really earn status of contraction to make the evidence of Semiyabai (PW/1) impeachable or incredible and not beyond reproach. 13. The question arises whether learned Sessions Court rightly imposed sentence? 14. About nine years have been elapsed from the date of incident i.e. 29.6.2005. Appellant No.2 Urmilabai presently running her forties and was under custody from the date of impugned judgment 21/12/2006 to 04/1/2007 when her application for suspension of sentence and grant of bail was allowed by this Court. 15. In the result, upholding the order of conviction recorded by learned Court below, I reduce the sentence awarded to appellant No.2 Urmilabai to the sentence already undergone as mentioned above by him. 15. In the result, upholding the order of conviction recorded by learned Court below, I reduce the sentence awarded to appellant No.2 Urmilabai to the sentence already undergone as mentioned above by him. Appellant No.1 Basant and appellant No.3 Magnibai are acquitted from the offence punishable under Section 323/34of IPC and in case of appellant No.2 Urmilabai, the impugned judgment is modified accordingly. The appellants are on bail, their bail bonds stand discharged. 16. Appeal is partly allowed as mentioned above.