Research › Search › Judgment

Madhya Pradesh High Court · body

2019 DIGILAW 353 (MP)

Prashant Alias Shivpratap v. State of M. P.

2019-05-02

SHEEL NAGU

body2019
JUDGMENT : Inherent powers of this Court under section 482 of Criminal Procedure Code are invoked seeking interference in the judgment of acquittal passed on 21- 10-2016 in Criminal Case No. 35/2016 by JMFC Gohad, District Bhind acquitting the sole petitioner-Prashant alias Shivpratap from the charge punishable under section 452 of Indian Penal Code to the extent that the same is categorized as based on benefit of doubt. 2. Learned counsel for rival parties are heard on the question of admission and final disposal. 3. Learned counsel for petitioner submits that though he has been acquitted of the charge of offence punishable under section 452 of Indian Penal Code which relates to house trespass after preparation of causing hurt assault or wrongful restrain but despite the prosecution having failed to establish even an iota of the charges the learned trial Judge instead of honourably acquitting the petitioner has categorized the acquittal as based on benefit of doubt. It is submitted that petitioner is a young man aged about 24-25 years old and the said technical acquittal would adversely affect his prospects of a public employment in the future. 4. The criminal law in India does not recognize the concept of honourable, clean or technical acquittal. These sub-categories of acquittal are foreign to the scheme of Criminal Procedure Code. However, these sub-categories assume relevance when used in the field of service jurisprudence. Section 232 of Criminal Procedure Code provides for acquittal which is reproduced below for ready reference and inconvenience :- Section 232. Acquittal - If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal. 5. The aforesaid provision contemplates that after collecting the evidence for the prosecution, examining accused and hearing the prosecution and the defence, the trial Court finds that there is no evidence that the accused has committed any offence alleged against him, the trial Court shall record an order of acquittal. The term “acquittal” is neither defined in Criminal Procedure Code nor in Indian Penal Code, therefore, resort will have made the dictionary meaning of the said expression. The term “acquittal” is neither defined in Criminal Procedure Code nor in Indian Penal Code, therefore, resort will have made the dictionary meaning of the said expression. Chambers - 21st Century Dictionary Publishing Director - Robert Allen Acquittal :- A declaration in a court of law that someone is not guilty of the crime, etc. of which they have been accused. Concise Oxford English Dictionary, South Asia Edition. Editor :- Angus Stevenson, Maurice Waite. Acquittal :- A judgment or verdict that a person is not guilty of a criminal charge. 6. The attention of this Court has already been invited to Para 24 of Dy. Inspector General of Police and anr. vs. S. Samuthiram, (2013) 1 SCC 598 which is reproduced below :- 24. The meaning of the expression ‘honourable acquittal’ came up for consideration before this Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal, (1994) 1 SCC 541 . In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions ‘honourable acquittal’, ‘acquitted of blame’, ‘fully exonerated’ are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression ‘honourably acquitted’. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. 7. The aforesaid view of the Apex Court has been referred to with approval in Union Territory, Chandigarh Administration and ors. vs. Pradeep Kumar anda., (2018) 1 SCC 797 . 8. From the reading of above enunciation and exposition of law, it is evident that an acquittal can be categorized as honourable when there is total absence of evidence, in support of the charge alleged. 9. In the instant case, the charge against petitioner was for an offence punishable under section 452 of Indian Penal Code and to prove the said charge, the prosecution produced PW-1-Suman Tomar as complainant, PW2-Anamika Tomar daughter of the complainant and PW-3-Nathu Singh Tomar husband of complainant. 9. In the instant case, the charge against petitioner was for an offence punishable under section 452 of Indian Penal Code and to prove the said charge, the prosecution produced PW-1-Suman Tomar as complainant, PW2-Anamika Tomar daughter of the complainant and PW-3-Nathu Singh Tomar husband of complainant. All these three were the eyewitnesses. 9. In the instant case, the charge against petitioner was for an offence punishable under section 452 of Indian Penal Code and to prove the said charge, the prosecution produced PW-1-Suman Tomar as complainant, PW2-Anamika Tomar daughter of the complainant and PW-3-Nathu Singh Tomar husband of complainant. All these three were the eyewitnesses. The complete testimony of these three witnesses is reproduced below for ready reference and convenience : - “PW-1 – Sunita Tripathi eq[; ijh{k.k }kjk ,Mhihvks %& 1- eSa vkjksihx.k dks tkurh gw¡ vkt ls djhc ,d lky dh iwoZ ckr gS esjk rFkk esjh yM+dh dk vkjksihx.k ls eqgkokn gks x;k FkkA eqgkokn esa >wek >iVh /kDdk eqDdh gks x;h Fkh ftlesa eq>s o esjh yM+dh dks pksV vk;h Fkh ftldh fjiksVZ eSaus Fkkus esa tkdj dh tks Á-ih-1 gS ftlds , ls , Hkkx ij esjs gLrk{kj gSA uDlk ekSdk Á-ih-2 gS ftlds ,s ls , Hkkx ij esjs gLrk{kj gSaA iqfyl us eq>ls dksbZ iwNrkN ugha dhA uksV %& vfHk;kstu vf/kdkjh }kjk lk{kh ls lwpd Á'u iwNus dh vuqefr pkgh xbZ] fopkjksijkar lk{kh dks i{kfojks/kh ?kksf"kr dj Á'u iwNus dh vuqefr Ánku dh xbZA lwpd Á’u }kjk ,-Mh-ih-%& 1- ;g dguk xyr gS fd vkjksihx.k us esjs ?kj ds vanj ?kqldj vkaxu esa vkdj eka cfgu dh xkfy;ka nh FkhA ;g dguk xyr gS fd dSyk'kh ckbZ us esjh pqfV;k idM+ dj iVd fn;k Fkk] vkseohj us M.Mk flj esa ekjk FkkA tks eq>s nkfgusa gkFk dh dykbZ esa yxk Fkk] bUnziky rksej us M.Mk nkfgusa gkFk dh dykbZ esa ekjk A ;g dguk xyr gS fd yM+dh vukfedk eq>s cpkus vkbZA Á'kkar us mls iVd fn;k vkSj mls M.Ms ekjsA ;g dguk xyr gS fd >xM+k ?kj ds vUnj gqvk FkkA lk{kh us Lor% dgk fd dsoy eqgkokn gqvk Fkk vkSj iwjh ?kVuk ?kj ds ckgj jksM+ ij gqbZ FkhA lk{kh dks mldk iqfyl dFku Á-ih-3 dk , ls , vkSj ch ls ch Hkkx i<+dj lquk;s tkus ij lk{kh us dgk fd mlus ,slk dksbZ dFku iqfyl dks ugha fn;k FkkA fjiksVZ Á-ih-1 dk ch ls ch o lh ls lh Hkkx i<+dj lquk;s tkus ij dgk fd mlus ,slh dksbZ fjiksVZ ys[k ugha djk;h FkhA dSls fy[k yh eSa dkj.k ugha crk ldrhA 2- ;g lgh gS fd esjk vkjksihx.k ls jkthukek gks x;k gSA ;g dguk xyr gS blfy, U;k;ky; esa vkt eSa vlR; dFku ns jgh gw¡A** “PW-2 – Anamika Tomar eq[; ijh{k.k }kjk ,Mhihvks %& 1- eSa vkjksihx.k dks tkurh gw¡ vkt ls djhc ,d lky iwoZ dh ckr gS esjk rFkk esjh eka dk vkjksihx.k ls eqgokn gks x;k FkkA eqgkokn esa >wek >iVh /kDdk eqDdh gks x;h Fkh ftlesa eq>s o esjh eka dks pksV vk;h FkhA iqfyl us eq>ls dksbZ iwNrkN ugha dhA uksV %& vfHk;kstu vf/kdkjh }kjk lk{kh ls lwpd Á'u iwNus dh vuqefr pkgh xbZ] fopkjksijkar lk{kh dks i{kfojks/kh ?kksf"kr dj Á'u iwNus dh vuqefr Ánku dh xbZA lwpd Á’u }kjk ,-Mh-ih-%& 1- ;g dguk xyr gS fd vkjksihx.k us esjs ?kj ds vanj ?kqldj vkaxu esa vkdj eka cfgu dh xkfy;ka nh FkhA ;g dguk xyr gS fd dSyk'kh ckbZ us esjh eka dh pqfV;k idM+dj iVd fn;k Fkk] vkseohj us M.Mk flj esa ekjk FkkA tks esjh eka dks nkfgusa gkFk dh dykbZ esa yxk Fkk] bUnziky rksej us M.Mk nkfgusa gkFk dh dykbZ esa ekjkA ;g dguk xyr gS fd eSa cpkus vkbZ rks Á'kkar us eq>s iVd fn;k vkSj eq>s M.Ms ekjs ;g dguk xyr gS fd >xM+k ?kj ds vanj gqvk FkkA lk{kh us Lor% dgk fd dsoy eqgokn gqvk Fkk vkSj iwjh ?kVuk ?kj ds ckgj jksM+ ij gqbZ FkhA lk{kh us iqfyl dFku Á-ih-4 vkSj dk , ls , vkSj ch ls ch Hkkx i<+dj lquk;s tkus ij lk{kh us dgk fd mlus ,slk dksbZ dFku iqfyl dks ugha fn;k FkkA dSls fy[kyh eSa dkj.k ugha crk ldrhA 2- ;g lgh gS fd esjk vkjksihx.k ls jkthukek gks x;k gSA ;g dguk xyr gS blfy, U;k;ky; esa vkt eSa vlR; dFku ns jgh gw¡A Áfrijh{k.k }kjk Jh ;tosUnz JhokLro okLrs vkjksihx.k %& 2- dqN ugha “PW-3 – Nathu Singh Tomar eq[; ijh{k.k }kjk ,Mhihvks %& 1- eSa vkjksihx.k dks tkurk gw¡ vkt ls djhc ,d lky iwoZ dh ckr gS esjk rFkk esjh ifRu ,oa cPph dk vkjksihx.k ls eqgokn gks x;k FkkA eqgokn esa >wek >iVh /kDdk eqDdh gks x;h Fkh ftlesa mUgsa pksV vk;h FkhA iqfyl us eq>ls dksbZ iwNrkN ugha dhA uksV %& vfHk;kstu vf/kdkjh }kjk lk{kh ls lwpd Á'u iwNus dh vuqefr pkgh xbZ] fopkjksijkar lk{kh dks i{kfojks/kh ?kksf"kr dj Á'u iwNus dh vuqefr Ánku dh xbZA lwpd Á’u }kjk ,-Mh-ih-%& 1- ;g dguk xyr gS fd vkjksihx.k us esjs ?kj ds vanj ?kqldj vkaxu esa vkdj eka cfgu dh xkfy;ka nh FkhA ;g dguk xyr gS fd dSyk’kh ckbZ us esjh ifRu dh pqfV;k idM+dj iVd fn;k Fkk] vkseohj us M.Mk flj esa ekjk FkkA tks esjh ifRu dks nkfgusa gkFk dh dykbZ esa yxk Fkk] bUnziky rksej us M.Mk nkfgusa gkFk dh dykbZ esa ekjk FkkA ;g dguk xyr gS fd esjh csVh cpkus vkbZ rks Á'kkUr us mls iVd fn;k vkSj mls M.Ms ekjsA ;g dguk xyr gS fd >xM+k ?kj ds vanj gqvk FkkA lk{kh us Lor% dgk fd dsoy eqgokn gqvk Fkk vkSj iwjh ?kVuk ?kj ds ckgj jksM+ ij gqbZ FkhA lk{kh dks mldk iqfyl dFku Á-ih- 5 vkSj dk , ls , vkSj ch ls ch Hkkx i<+dj lquk;s tkus ij lk{kh us dgk fd mlus ,slk dksbZ dFku iqfyl dks ugha fn;k FkkA dSls fy[kyh eSa dkj.k ugha crk ldrkA 2- ;g lgh gS fd esjk vkjksihx.k ls jkthukek gks x;k gSA ;g dguk xyr gS blfy, U;k;ky; esa vkt eSa vlR; dFku ns jgh gw¡A Áfrijh{k.k }kjk Jh ;tosUnz JhokLro okLrs vkjksihx.k %& 2- dqN ugha 10. Close scrutiny of the aforesaid testimony of PW-1, PW-2 and PW-3 reveals that all these statements in essentiality and substance are more or less in the same lines and therefore, for the purpose of this order and to avoid prolixity the testimony of complainant Suman Tomar (PW-1) is being discussed. 11. The complainant begins her cross-examination by stating that she knows the accused/petitioner and reveals that about one year back she and her daughter Anamika Tomar (PW-2) had oral arguments and altercation with petitioner/accused in which Anamika Tomar (PW-2) had sustained injury whereafter the incident was reported by FIR Ex.P-1 on which Suman Tomar (PW1) admits her signature. Suman Tomar (PW-1) further admits that she had signed the spot map (Ex.P-2). Thereafter, she states in examination-in-chief that no further inquiry was made from her by the police. At this stage, Public Prosecutor sought permission from the Court to declare Suman Tomar (PW-1) hostile to the prosecution and to cross-examine her. 12. In her cross-examination, Suman Tomar (PW-1) categorically denied that petitioner/accused caused any house trespass by revealing that petitioner did not enter the premises of the house. PW-1 further denied any assault to have taken place. She further denied that her daughter Anamika Tomar (PW-2) came to her rescue. Suman Tomar (PW-1) on her own reveals that only oral arguments took place with the petitioner/accused. The entire incident took place outside the house of complainant on the road. When Ex.-P-3, the statement of PW-1 recorded under section 161 of Criminal Procedure Code was read over to her, she denied having made any such statement to the police. Lastly, Suman Tomar (PW- 1) admitted that rival parties have entered into compromise but specifically denied that today she is incorrectly stating the facts. 13. Similar in tenor is the testimony of other two eye-witnesses Suman Tomar (PW-1) and Nathu Singh Tomar (PW-3). 14. On the basis of aforesaid evidence adduced, the learned trial Judge recorded the following findings in Paras 7 to 10 of the judgment :- 1. None of the witnesses reveal anything about the accused causing house trespass after preparation of causing hurt, assault or wrongful restrain. 2. The complainant-Suman Tomar (PW-1) has specifically denied of making any earlier statement under section 161 of Criminal Procedure Code alleging house trespass. In fact PW-1 testified that the entire incident did not take place inside the house of complainant. 3. 2. The complainant-Suman Tomar (PW-1) has specifically denied of making any earlier statement under section 161 of Criminal Procedure Code alleging house trespass. In fact PW-1 testified that the entire incident did not take place inside the house of complainant. 3. There is total absence of evidence to support the charge of house trespass after preparation of causing hurt assault or wrongful restrain under section 452 of Indian Penal Code. 4. Therefore, the prosecution has failed to establish the charges beyond all reasonable doubt. 5. The petitioner along with other accused are acquitted by extending the benefit of doubt. From the aforesaid analysis what becomes vivid is that prosecution had alleged a case of house trespass along with preparation of causing hurt assault or wrongful restrain but the evidence. However the evidence adduced revealed that no house trespass took place, therefore, the offence punishable under section 452 of Indian Penal Code, was not found to be committed. In such a situation where there was total absence of prosecution evidence to support the charge under section 452 of Criminal Procedure Code, the acquittal which follows in essentiality an honorable one and a clean acquittal. Thus the expression used by the learned trial Judge of “benefit of doubt” is perverse and misnomer. 15. Consequently, the present petition to the extent indicated above is allowed with the following direction. 16. The impugned judgment passed on 21-10-2016 in Criminal Case No. 35/2016 by JMFC Gohad, District Bhind is interfered with to the extent of declaring that the acquittal of the petitioner by the said judgment from the charge under section 452 of Indian Penal Code is clean and honorable. No cost. Petition allowed.