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2017 DIGILAW 702 (MP)

Charna @ Ramcharan v. State of M. P.

2017-05-23

VIVEK AGARWAL

body2017
JUDGMENT 1. Appellants/accused persons have filed this criminal appeal under section 374(2) of the Code of Criminal Procedure, 1973 being aggrieved by judgment dated 30.8.2005 passed by the Special Judge (Atrocities), Gwalior, in Special Sessions Case No.50/2004 inflicting punishment of three years rigorous imprisonment and fine of Rs.1,000/- under the provisions of section 326/34 of IPC on each of the appellants/accused. 2. Brief facts leading to the present case are that complainant Mahendra Singh had lodged an FIR on 9.4.2004 at police Station, Madhoganj, registering Crime No.157/2004 in which it is mentioned that one Patiram had sold his land in favour of Naresh, as a result of which appellants No.1 and 2, namely Charna and Kishna, were dissatisfied. On 9.4.2004 when Mahendra, Naresh and Durga were returning back after dropping Patiram at his residence, then appellants intercepted the complainant and his party, abused them and indulged in beating, as a result of which complainant sustained certain injuries. After recording of the FIR, complainant Mahendra Singh was referred to Government J.A. Hospital, where he was examined by Dr. Vikram Singh Tomar (PW6) who prepared medical report (Ex.P-10). On x-ray being performed, Dr. Amar Mukund (PW3) opined that complainant has sustained two fractures in little finger of left hand and another in nose. Thereafter, accused persons were arrested and after investigation, charge sheet was filed under sections 307/34 of IPC and sections 3(1)(x) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in the Court of Additional Chief Judicial Magistrate, Gwalior, who committed the case to the Court of Sessions and from where the case was received by the Special Judge for trial. 3. Prosecution examined seven witnesses, out of which Durgaprasad (PW1) and Naresh Kumar (PW4) are respectively friend and brother's friend of complainant Mahendra Singh (PW2), whereas radiologist Amar Mukund (PW3) gave opinion about fracture and Dr. Vikram Singh Tomar (PW6) was examined in support of MLC. Besides this, one Dilip Singh (PW4A) and Deepak (PW5) are respectively the witnesses to memorandum of arrest (Ex.P-3 to Ex.P-5), memorandum under section 27 of the Evidence Act (Ex.P-6 and Ex.P-7) and memorandum of seizure (Ex.P-8 and Ex.P-9). Similarly, Ratansingh Meena (PW7), DSP Crime, Indore, and Devendrasingh (PW8), SHO Kotwali, Guna, were also examined by the prosecution in support of its case. 4. Similarly, Ratansingh Meena (PW7), DSP Crime, Indore, and Devendrasingh (PW8), SHO Kotwali, Guna, were also examined by the prosecution in support of its case. 4. It is the case of the appellants that they have been falsely implicated in the case inasmuch as there was an old enmity between the complainant party and accused persons as is reflected from cross-examination para 3 of Durga (PW1). He has said that prior to the incident a dispute had occurred between Patiram and the accused persons and in that regard a report was made at Police Station, Madhoganj. It is submitted that on account of such old enmity, they have been falsely implicated. It is also submitted that in the FIR (Ex.P-2) name of four accused persons have been mentioned, whereas charge sheet was filed only against three accused persons inasmuch as Ratansingh Meena (PW7), investigating officer, has admitted that he had again recorded the case diary statement of Mahendra Singh (PW2) on 4.6.2004 and had found that there was nobody in the name of Banwari Kushwaha, therefore, on verification from village Sarpanch that nobody in the name of Banwari Kushwaha was residing in the said village, his name was dropped from the list of accused persons. It is also submitted that there is contradiction in the statement of Mahendrasingh (PW2) inasmuch as on the one hand he admits that he had become unconscious after the incident on 9.4.2004 and gained consciousness on 10.4.2004 in the hospital at about 10.30 to 11.00 a.m. when his signatures were obtained on Ex.P-2 i.e. FIR by the police, whereas as per the version of the prosecution, FIR was lodged at 23.20 hours on 9.4.2004 itself. There is overwriting in the name of father of the complainant, and therefore, FIR (Ex.P-2) is not a reliable piece of document. It is also submitted that there is contradiction in the FIR vis a vis statement of Durgaprasad (PW1) inasmuch as complainant Mahendasingh has mentioned that all the four accused were armed with swords, whereas Durgaprasad (PW1) has submitted that 4th person was not known to him and he was armed with a Lathi. It is further submitted that there were many flaws in the investigation inasmuch as not only FIR is anti-dated, but Ratasingh Meena (PW7) has admitted that seized weapons were not sealed on the spot, and therefore, their use in the incident becomes doubtful. It is further submitted that there were many flaws in the investigation inasmuch as not only FIR is anti-dated, but Ratasingh Meena (PW7) has admitted that seized weapons were not sealed on the spot, and therefore, their use in the incident becomes doubtful. Also there are serious discrepancies in the ocular and medical evidence, and therefore, the prosecution has failed to prove its case, but the learned Special Court has though admitted that witnesses to seizure were hostile, has overlooked the fact that one sword and another knife were recovered respectively from Kishna and Charna vide Ex.P-9 and Ex.P-8 and no recovery was made from Kallu, yet convicted all three accused persons. It is also submitted that FSL report has not corroborated the blood group and has said that blood stains on such weapons are not sufficient for testing. It is also submitted that such seized weapons were never shown to the witnesses and the trial Court has admitted in para 33 of its judgment that there was no connection of weapon with the incident, yet discarding the ocular evidence has convicted the accused persons, merely on the basis of medical evidence. It is further submitted that learned Special Court even while relying on the medical evidence has overlooked the contradictions in the medical evidence, and, therefore, it is a fit case for acquittal. In the alternative without causing prejudice to his submission on acquittal, it is submitted that in the light of the law laid down in the case of Kanhaiyalal v. State of M.P., as reported in 1985 MPWN 336 , the sentence already suffered by appellant Charna i.e. of about 72 days from 12.4.2004 to 23.6.2004 and other two appellants Kishna and Kallu of 17 days and 19 days respectively, be treated as sufficient and remaining sentence be declared as undergone, specially looking to the fact that appellants are not habitual offender and this was their first offence. 5. Learned Panel Lawyer for the respondent/State has supported the impugned judgment of conviction and sentence. 6. When FIR (Ex.P-2) is examined in view of the statement given by its author Mahendra Singh (PW2), then it is apparent that he has admitted in para 4 of his cross-examination that he was unconscious for the whole night. He was admitted in the neurology department and he gained consciousness at about 10.30 a.m. in the hospital. 6. When FIR (Ex.P-2) is examined in view of the statement given by its author Mahendra Singh (PW2), then it is apparent that he has admitted in para 4 of his cross-examination that he was unconscious for the whole night. He was admitted in the neurology department and he gained consciousness at about 10.30 a.m. in the hospital. He also admitted that after gaining consciousness, police had visited hospital and his signatures were obtained on FIR (Ex.P-2) in the hospital. He further admits that he had informed the police about the names of all those persons with whom he had enmity. In view of such statement, it is apparent that FIR (Ex.P-2) is ante-dated and was not written on 9.4.2004 at 23.20 hours inasmuch as from A to A it contains signatures of Mahendra Singh and Mahendra Singh himself has deposed that he had signed on this report in the hospital on the next day after gaining consciousness at about 10.30 to 11 a.m. 7. There is a clear mention in the cross-examination that he had narrated the names of his enemies to the police. Further there is major deviation from the contents of the FIR and seizure memo inasmuch as 4/3 swords are not recovered but only one sword and one knife was recovered and FSL report has not corroborated the blood group and has said that blood stains on such weapons are not sufficient for testing. Besides this, such weapons were not sealed on the spot as has been admitted by Ratan Singh Meena (PW7), IO of the case. In this case another important aspect is the spot map. The incident has been reported to be that of 22.15 hours. The place of incident has been marked as plus and there is no source of light in or around the place of incident. It is alleged that Charna had abused the victim and apart from Charna there was no conversation with anybody else as per the FIR. In para 4 of cross-examination, Mahendra Singh (PW2) has admitted that after dropping Patiram he had no conversation with anybody till he gained consciousness in the hospital on the next day. Therefore, in absence of light and conversation, neither there was any visual identification nor any verbal identification is possible. In para 4 of cross-examination, Mahendra Singh (PW2) has admitted that after dropping Patiram he had no conversation with anybody till he gained consciousness in the hospital on the next day. Therefore, in absence of light and conversation, neither there was any visual identification nor any verbal identification is possible. When this facet is examined in the light of statement given by Mahendra Singh and other witnesses, namely Durgaprasad and Naresh Kumar, the contradictions clearly bring out that accused persons have been falsely implicated in the case as there was no source of light and it is not the case of the prosecution that it was a moon-lit night and accused persons were identified in the moonlight. Further, when four persons were named in the FIR and one has been omitted, this gives rise to presumption that even three others were falsely implicated due to old enmity as has been admitted by Durgaprasad (PW1) that earlier Patiram had an altercation with accused persons for which report was lodged at Madhoganj Police Station. 8. In the light of the above facts, the prosecution has failed to connect sword and knife with the incident, specially when Dr.Vikram Singh Tomar (PW6) has admitted that injury No.3 could be caused by any pointed object and injuries No.4, 5 and 9 on collision or fall on hard and blunt object. It is apparent that Special Court has only convicted the appellants on the basis of medical report, not taking into consideration the fact that alleged weapons could not be connected with the offence through any ocular evidence, their seizure has not been proved and in absence of their sealing immediately after the seizure, use of such weapons becomes doubtful and all these things should have gone in favour of the accused persons. Therefore, in the opinion of this Court, this is a fit case for acquittal as benefit of doubt will go to the accused persons and thus the appeal is allowed. The impugned judgment and order is set aside. The appellants, who are on bail, are acquitted from the charge under section 326/34 of IPC and their bail bonds are discharged.