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2015 DIGILAW 189 (RAJ)

Mahesh Kumar v. State of Rajasthan

2015-01-21

BANWARI LAL SHARMA

body2015
JUDGMENT 1. - The petitioner has preferred this revision petition against the judgment dated 12.02.1997 passed by the learned Sessions Judge, Merta in Criminal Revision Petition No.34/1995, whereby the revision petition filed by the respondents Nos.2 to 7 was allowed and they were discharged from the offences while reversing the order dated 22.09.1995 passed by the learned Civil Judge (JD) cum Judicial Magistrate, First Class, Kuchaman City in Criminal Misc. Case No.499/1992 whereby charges were framed against them for the offences under Sections 147, 452, 323 and 149 IPC. 2. The brief facts of the case are that on 04.08.1989, the petitioner filed a complaint against the respondents Nos.2 to 7 in the court below alleging therein that on 01.08.1989, at about 7-7.30 p.m., all the respondents-accused having lathis in their hands, with common intention to cause grievous hurt to him, entered in his shop and after closing the door of the shop, abused him and started inflicting lathi blows. On hearing his hue and cry, Sitaram and Hari Prasad, having their shops opposite to the shop of the petitioner, reached there and intervened in the matter. As per the complaint, he received injuries on the right side of the chest, knees and elbows. He went to lodge the FIR but the same was not registered. Thereafter, the petitioner examined himself at hospital at Kuchaman and got injury report and thereafter, the complaint was filed. The learned court below, after recording the statement of the petitioner under Sections 200 and 202 Cr.P.C., summoned the respondents-accused and after recording pre-charge evidence of the petitioner as PW-1, Hari Prasad (PW-2) and Sitaram (PW-3), framed charges against the respondents-accused for the offences punishable under Sections 147, 452, 323 and 149 IPC vide order dated 22.09.1995. 3. Being aggrieved of the aforesaid order dated 22.09.1995, the respondents-accused preferred revision petition before the learned court below, which was allowed vide order dated 12.02.1997 and the respondents-accused were discharged. 4. Dissatisfied with the aforesaid order dated 12.02.1997, the petitioner-complainant has preferred this revision petition, which was admitted for hearing vide order dated 04.03.1998. 5. I have heard Mr. MK Garg with Mr. Kaushal Gautam, learned counsel for the petitioner, Mr. Deepak Choudhary, learned Public Prosecutor and Mr. Suresh Kumbhat with Mr. Ravinder Kumar Purohit, learned counsel for the respondents-accused. 6. Dissatisfied with the aforesaid order dated 12.02.1997, the petitioner-complainant has preferred this revision petition, which was admitted for hearing vide order dated 04.03.1998. 5. I have heard Mr. MK Garg with Mr. Kaushal Gautam, learned counsel for the petitioner, Mr. Deepak Choudhary, learned Public Prosecutor and Mr. Suresh Kumbhat with Mr. Ravinder Kumar Purohit, learned counsel for the respondents-accused. 6. The learned counsel for the petitioner submitted that the learned revisional court has erred while reversing the order of the learned trial court and discharging the respondents-accused. It was submitted by him that the revisional court should not have entered into the niceties of the evidence and was to examine whether prima facie case is made out and it was duly established that the respondents-accused entered in the shop and inflicted injuries which was supported by the injury report and thus it was clear that there was a prima facie case against the respondents-accused. It was thus prayed that this revision petition may be allowed and the impugned order dated 12.02.1997 may be quashed and set aside and that of the learned trial court dated 22.09.1995 may be restored. 7. Per contra, learned counsel for the respondents-accused supported the impugned order and submitted that there was no prima facie case against the respondents-accused. There was unexplained delay in lodging the FIR. It was also submitted by him that there is a case pending against the petitioner-complainant and his witnesses Hari Prasad and Sitaram for the offences under Sections 148, 452, 323, 325/149 and 307 IPC and, therefore, in retaliation thereto, this false case has been lodged against them. It was also submitted by him that there are material contradictions in the statements of the prosecution witnesses. The learned revisional court, while considering all these facts and circumstances, has rightly allowed the revision petition and has rightly discharged the respondents-accused. It was also submitted by him that the court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case and the total effect of the evidence. He placed reliance upon the judgment of this court in Mishriya & Ors. v. State of Rajasthan, 1995 Cr.L.R. (Raj.) 542 . 8. I have considered the submissions made by the learned counsel for the parties and perused the record. 9. He placed reliance upon the judgment of this court in Mishriya & Ors. v. State of Rajasthan, 1995 Cr.L.R. (Raj.) 542 . 8. I have considered the submissions made by the learned counsel for the parties and perused the record. 9. The petitioner Mahesh Kumar (PW-1), in his statement, deposed that on 01.08.1989, in the evening, the respondents-accused, having lathis in their hands, entered in his shop and after closing the door of the shop, started abusing him and inflicted lathi blows. On his raising hue and cry, Hari Prasad, Sitaram and Begaram reached there. He received injuries on his elbow, chest and knees. When he went to lodge the FIR at police station, the same was not registered on which he went to Kuchaman where he himself examined in the hospital and received injury report (Ex.P/1) and thereafter, lodged the complaint (Ex.P/2) before the court. In his cross-examination, he admitted that a case under Section 307 IPC is pending against him at Merta lodged by the respondents-accused. 10. Hari Prasad (PW-2) and Sitaram (PW-3) also corroborated the statement of the petitioner Mahesh Kumar (PW-1). They also admitted in their cross-examination that a case under Section 307 IPC is pending against them at Merta lodged by the respondents-accused. 11. From a careful scrutiny of the material available on record and careful scrutiny of evidence, it is clear that there is previous enmity between the petitioner-complainant and respondents-accused. The respondents-accused lodged a case against the petitioner-complainant for the offence under Section 307 IPC, which was pending at Merta. Further, there are material contradictions in the statements of the witnesses regarding injury received by the petitioner-complainant. The petitioner-accused Mahesh Kumar (PW-1) stated that he received injuries on chest, elbow and knees. Hariprasad (PW-2) in his statement stated that the blood was oozing from the injuries of the petitioner-complainant. Sitaram (PW-3) stated that the petitioner-complainant received injuries on finger, chest and legs. From the injury report (Ex.P/1), it is clear that there was no such injury from which blood was oozing. The petitioner-complainant also did not state that blood was oozing from his injuries. 12. From the record, it is also clear that the incident occurred on 01.08.1989 at about 7.30 p.m. but the complaint was filed on 04.08.1989 and no reasonable explanation was offered for delay in filing the complaint. 13. The petitioner-complainant also did not state that blood was oozing from his injuries. 12. From the record, it is also clear that the incident occurred on 01.08.1989 at about 7.30 p.m. but the complaint was filed on 04.08.1989 and no reasonable explanation was offered for delay in filing the complaint. 13. The learned revisional court, while considering all these facts and circumstances of the case, reversed the order of the learned trial court and discharged the respondents-accused while observing that the court should not act like post office of the prosecution and should consider the broad probabilities of the case. 14. In the case of Mishriya & Ors. (supra), this court, relied upon the judgment of the Apex Court in Union of India v. Prafulla Kumar Samal & Anr., AIR 1979 SC 366 , wherein it was observed as under:- "................court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make roving enquiry into the pros and cons of the matter and weight the evidence as if he was conducting a trial." 15. In the instant case, as noted herein above, there were material contradictions in the statements of the witnesses; there was unexplained delay in filing the complaint and also there is previous enmity between the parties as it was admitted that there is a case under Section 307 IPC pending against the petitioner{ accused and his witnesses at Merta, lodged by the respondents-accused. 16. The learned revisional court, while considering all the facts and circumstances of the case and the total effect of the evidence, has rightly reversed the order of the learned trial court and discharged the respondents-accused, which does not warrant any interference by this court.In view of the above, the revision petition is dismissed being devoid of any merit.Revision dismissed. *******