Madhya Pradesh High Court
Raju @ Rajendra & Ors. vs The State Of M.P. on 13 October, 2023
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 13 th OF OCTOBER, 2023
CRIMINAL APPEAL No. 1087 of 1998
BETWEEN:-
1. RAJU @ RAJENDRA & S/O RAM KISHAN KACHI,
AGED ABOUT 22 YEARS, R/O KARELI BASTI, P.S.
KARELI, DISTRICT NARSINGHPUR (MADHYA
PRADESH)
2. PRAKASH (DEAD), S/O RAM KISHAN KACHI, AGED
ABOUT 25 YEARS, R/O KARELI BASTI, P.S. KARELI,
DISTRICT NARSINGHPUR (MADHYA PRADESH)
AMOL S/O RAM KISHAN KACHI, AGED ABOUT 20
3. YE A R S , R/O KARELI BASTI, P.S. KARELI,
DISTRICT NARSINGHPUR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI MANISH DATT - SENIOR ADVOCATE WITH SHRI H.A. SAIFI -
ADVOCATE)
AND
THE STATE OF M.P. (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRASANJEET CHATERJEE PANEL LAWYER)
Reserved on : 05.10.2023.
Pronounced on : 13.10.2023.
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
JUDGMENT
This appeal has been preferred against the judgment passed on 27/04/1998 by the learned Additional Sessions Judge, Narsinghpur in Sessions Signature Not Verified Signed by: SHARAN JEET KAUR Signing time: 10/16/2023 2:09:38 PM 2 Trial No.121/1995 whereunder the appellants were convicted for the offence of Sections 341, 326, (326/34) and 323 of IPC and were sentenced to rigorous imprisonment of one month, three years and one month respectively with a fine amount of Rs.500/- only for the offence of Section 326 (326/34) of IPC with a default clause to undergo further rigorous imprisonment of one month for non- payment of fine amount.
2. The brief facts of the prosecution case are that, Ashok Kumar Kushwaha was going to the field of Mahesh/Jagdish Raghuwansi alongwith his brother Anil Kumar and one more person Roshan Singh and on their way the appellants were hiding behind the Cactus bushes near by the Mahadev Temple.
As soon as, Ashok Kumar Kushwaha and his fellow mates reached there, all the three appellants came out; they were carrying farsa, rod and Khaderua; they all attacked Ashok Kumar Kushwaha with their weapons and caused injuries on his head, shoulder and leg. Ashok Kumar Kushwaha ran towards the well of Harnarayan and fell down there. Father of Ashok Kumar Kaushwaha, namely Gopilal Kachi arrived there but he too was attacked by appellants and was caused injuries. Mahesh Raghuwanshi heard the screams; he reached on the spot and upon seeing him, the appellants fled away. The matter was reported to the Police by Anil Kumar, the brother of injured. After investigation the charge- sheet was filed and the trial was held. After conclusion of trial, the appellants were convicted and sentenced as aforesaid under the impugned judgment.
3. The grounds raised in this appeal are that, the learned trial Judge committed error in holding the appellants guilty of causing grievous and simple injuries to the complainant party. The facts reveal that they were falsely implicated in the case. There were gross contradiction in the testimony of Signature Not Verified Signed by: SHARAN JEET KAUR Signing time: 10/16/2023 2:09:38 PM 3 prosecution witnesses and they were unworthy of credit. No independent witness supported the prosecution story. No blood stains were seized from the spot. It was therefore prayed that the appeal be allowed and the appellants be acquitted. It may be mentioned here that appellant No.2 namely Prakash, S/o Ram Kishan Kachi died during the pendency of this appeal and vide order dated 05.05.2022 it was held that the appeal filed on behalf of appellant No.2 namely Prakash has abated.
4. State has opposed the present appeal by claiming that the impugned judgment is well founded on reasoned facts and the prosecution case is duly proved on their basis, hence, no interference is warranted in the impugned judgment.
5. Both the parties have been heard and the record of the trial Court has been perused.
6. This case was registered on the basis of FIR which was lodged by Anil Kumar, who was not injured in this case, but who claimed to be the eye witness. According to him, this incident occurred nearby the Mahadev Temple where the appellants were hiding behind the Cactus bushes. According to him, the appellants were three in numbers and on the complainant side also there were three persons who were present on the spot; they were complainant Anil Kumar, his brother Ashok Kumar Kushwaha and another person Roshan Thakur. FIR suggests that of these three persons appellants attacked only one i.e., Ashok Kumar Kushwaha and upon hearing the screams, the father of Ashok Kumar Kushwaha namely Gopilal Kachi arrived there, who too was attacked by appellant No.3 - Amol. FIR does not disclose the role of other persons present in the complainant party i.e., complainants Anil Kumar and Roshan Thakur. It is totally silent on whether they tried to intervene and protect Signature Not Verified Signed by: SHARAN JEET KAUR Signing time: 10/16/2023 2:09:38 PM 4 Ashok Kumar Kushwaha or his father Goplilal Kachi or they fled away from the scene.
7. Exhibit-P/2 is the spot map which was prepared by the Investigating Officer namely C.D. Singh (PW/8) wherein the Cactus bushes are shown nearby mark No.2 and Mahadev Temple is marked by Point No1. These two places are shown to be almost adjoining and towards the same side of the road, while on the other side of road mark 3 and mark 4 are located which are respectively the house of Harnarayan and place where blood spots and towel of victim were found. This spot map suggests that the assault was made at a place shown by mark no.3 and this place was the courtyard of the house of Harnarayan (Tapariya). Apparently, there is a serious contradiction about the identity of place of occurrence. As per the FIR, this place should had been somewhere around mark nos.1 and 2 as shown in spot map (Exhibit P/2) while spot map shows this place at mark No.3. The distance between the two places is considerable as given in further details of spot map itself. For reaching mark No.3 from mark No.1 one has to cover the distance and then reach to then main road, then cover the distance of unconstructed road and then reach the mark No.3. This distance is claimed to be 300 ft. by Anil Kumar (PW/2).
8. Spot map (Exhibit-P/2) is prepared on the basis of information given by complainant Anil Kumar, who has claimed to be the eye witness of this incident and is also the person who gave information to the Police. Still, there are major contradictions in his two narratives given to the Police i.e., (i) given at the time of FIR and, (ii) given at the time of preparation of spot map. When he was cross-examined on this point, he admitted that Ashok Kumar Kushwaha went towards the Tapariya of Harnarayan, but according to him the appellants Signature Not Verified Signed by: SHARAN JEET KAUR Signing time: 10/16/2023 2:09:38 PM 5 had fled away by that time. Thus, from his Court testimony, it appears that no incident occurred inside or near the Tapariya of Harnarayan. It is interesting to note that blood stains were found inside as well as nearby the Tapariya of Harnarayan marked as point nos.3 and 4, and no blood stains were found by the Investigating Officer near the Mahadev Temple or near the Cactus bushes which are marked as point nos.1 and 2.
9. The FIR discloses that the entire incident occurred near the Mahadev Temple and according to victim Ashok Kumar Kushwaha (PW/1) no incident of assault was committed nearby the Tapariya of Harnarayan nor he escaped towards the well of Harnarayan. He was cross-examined on this point in context of his previous statements marked as Exhibit-D/1 which was given to the Police during investigation. In Exhibit-D/1, he had specifically stated that upon being attacked he fled away from the spot towards the well of Harnarayan and fell down there. When contradicted on this point, he denied to have given any such statement to the Police in Exhibit-D/1.
10. Harnarayan has been examined as defence witness DW-1 and he has disclosed on oath that near his Tapariya he has a barn and adjoining it the appellants had their barn. This fact has not been challenged in cross- examination. Thus, it is evident that the appellants were having their barn adjoining the place marked as point No. 3 and only at point nos. 3 and 4, the blood stains were found. Thus, it may be gathered that the incident actually happened near point nos.3 and 4 and not at point nos.1 and 2 as claimed by the prosecution. Further, had the place of incident been point nos.1 or 2 there would have been blood stains around those points and the trail would have gone to point nos.3 and 4, if the victim had escaped from that route, but no such blood marks were found at specified points of no.1 to 4.
Signature Not Verified Signed by: SHARAN JEET KAUR Signing time: 10/16/2023 2:09:38 PM 611. The above discussion brings to the conclusion that the alleged incident occurred at point nos.3 and 4 and nearby this place the existence of barn of appellants is undeniably proved. The defence has given a suggestion to victim Ashok Kumar Kushwaha (PW/1), complainant Anil Kumar (PW/2) and another victim Goplilal (PW/4), that the complainant side had gone to the barn of appellants where the two sides had a scuffle and the reason of this dispute was that the complainant side was aggrieved by the fact that the case of theft of electricity was registered against them at the behest of appellants. All of these witnesses have denied this suggestion, but it has been admitted by victim Ashok Kumar Kushwaha that a case was registered against him as well as his father and brother on the basis of report ledged by appellant No.3 - Amol.
12. Gopilal (PW/4) is the other victim in this case who happens to be the father of victim Ashok Kumar Kushwaha. His presence has not been claimed at the spot when the incident started, but it is claimed that on hearing the screams he reached the spot. According to victim Ashok Kumar Kushwaha his house is very far away from the Cactus bushes where the alleged incident happened. According to complainant Anil Kumar his father was in the house when the incident started and this house is about 1/2 a kilometers away from the place of incident. It seems strange that upon hearing the screams at a distance of 1/2 a Kilometers the father of victim arrived at spot. Gopilal (PW/4) claims that he was on his way towards river for easing himself and there heard the screams, but this fact is not mentioned in his police statement marked as Exhibit-D/4.
13. Mahesh Kumar Raghuwansi (PW/5) has stated in his police statement marked as Exhibit-D/3 that he reached on spot after hearing cries where he found the appellants attacking Ashok Kachi. He does not disclose in Signature Not Verified Signed by: SHARAN JEET KAUR Signing time: 10/16/2023 2:09:38 PM 7 those statements that he saw any attack on Gopilal. According to his Court testimony he saw this incident from his own field and he also witnessed from his filed that the appellants attacked Gopilal. These statements suggest that there have been serious contradictions and improvements in the testimony of these witnesses.
14. The police statement of Mahesh marked as Exhibit-D/3 also discloses the fact that there was severe enmity between the two parties. Having considered the fact of enmity, the serious contradictions and improvements in the testimony of prosecution witnesses and the facts narrated about the place of incident being not credible, this Court does not consider it to be safe to believe the prosecution case. Further, it appears that the prosecution purposely concealed the exact location of the alleged assault.
15. Evidently, the prosecution case is based upon the testimony of relatives or other interested persons. Roshan (PW/3) is claimed to be an independent witness, but it appears that his presence on the spot was deceitfully created. Complainant Anil Kumar (PW/2) has claimed that after the assault, victim ran away towards the Tapariya of Harnarayan and this fact is mentioned even in the Police statement of victim Ashok Kumar Kushwaha, but according to this eye witness Roshan (PW/3), Ashok Kumar went unconscious nearby the Mahadev Temple and he did not go towards the Tapariya of Harnaryan. Thus, he has not corroborated the statements given by him to the Police, marked as Exhibit-D/2. Considering the instability in his testimony this alleged independent witness is not reliable. The statements of other independent witness namely Mahesh Kumar Raghuwanshi (PW/5) have been discussed earlier to observe that his statements are also not worthy of credit.
16. In the light of the above discussion, this Court comes to the Signature Not Verified Signed by: SHARAN JEET KAUR Signing time: 10/16/2023 2:09:38 PM 8 conclusion that the complainant side made concealments and improvements in their Court testimony and developed a story which failed to prove the facts gathered during investigation and the reason for this appears to be the enmity between the two parties. Motivated by this fact, a false narrative was hatched. In the light of these facts the judgment of conviction and sentence is found to be not sustainable.
17. Accordingly, this appeal is allowed and the appellant nos.1 and 3 are acquitted of the offence of Sections 341, 326, (326/34) and 323 of IPC. They be released immediately.
18. The fine amount, if any deposited by the appellant Nos.1 and 3 be refunded to them.
19. Let a copy of this judgment alongwith the record be sent to the concerned trial court for necessary compliance.
(ANURADHA SHUKLA) JUDGE sjk Signature Not Verified Signed by: SHARAN JEET KAUR Signing time: 10/16/2023 2:09:38 PM