Madhya Pradesh High Court
State Of M.P. vs Raghuvir Singh Prahlad Singh And Anr. on 28 June, 1997
Equivalent citations: 1999(1)MPLJ535
Author: Dipak Misra
Bench: A.K. Mathur, Dipak Misra
JUDGMENT Dipak Misra, J.
1. In this appeal by State the propriety of the judgment of acquittal passed in Crime No. 701/81 by the learned Judicial Magistrate, 1st Class, Sagar is called in question.
2. The facts as have been depicted by the prosecution are that there had been existence of dispute between the informant Karansingh and the accused persons relating to a piece of land. Accused Raghubirsingh had claimed title over the same, and 15 to 20 days before the date of occurrence he had restrained the informant to come upon the disputed land. On 2-9-1981 when the informant after leaving his oxen near a pond was coming back, the accused persons met him near a Pipal tree. Accused Bhagbalsingh caught hold of his hands and accused Raghubir gave him blows with an axe on his chest for which he bled profusely. The assault was witnessed by Mohansingh, Sukhalal and Bakhatasingh. The Chowkidar of the village, in order to control the bleeding tied a cloth on his wound. Thereafter the informant along with Gajrajsingh and Mukundsingh went to Narayavali police station and lodged F.I.R. On police requisition he was sent to the hospital where he was treated. X-ray plates of the wound were taken and they showed that there was a fracture of the bone of the right clavicle. There was seizure of the blood stained shirt (Ex.P. 4) in presence of witnesses. The axe, weapon used for assault, was seized under Ex.P.8. After completing necessary formalities charge-sheet was submitted to the competent Court on 19-10-1981, for offence under Sections 326/34, Indian Penal Code against the accused persons-respondents.
The plea of defence was one of complete denial and false implication. Their further plea was that informant Karansingh fell on his plough and had sustained the injuries.
3. The prosecution to bring home the charges examined as many as 11 witnesses. P.Ws. l, 2 and 4; namely Mohansingh, Bakhatasingh and Sukhalal were declared hostile and cross-examined by the prosecution; P.W.3 is the informant himself; P.W. 5 Govindsingh and P.W. 6 Gulabrani were examined as other eye-witnesses. P.Ws.7, 8 and 11 are the formal witnesses; P.W.9 is the Head Constable; and P.W.10 is the Assistant Surgeon who had examined the informant. Apart from the oral evidence the prosecution brought series of the documents on record.
The defence examined one Rajendrasingh in support of its stand.
4. On consideration of the oral and documentary evidence on record the learned Magistrate came to hold that the prosecution had failed to establish its case beyond reasonable doubt and the plea of the defence was more believable and therefore, the accused persons were entitled to an order of acquittal and accordingly he acquitted the accused persons of the charge.
5. Challenging the impugned judgment Mr. Riyaz Mohammad the learned Government Advocate has contended that the impugned judgment suffers from palpable illegality as there is no justifiable reason to discard the unimpeachable testimony of the informant which has been amply corroborated by the evidence of the Doctor, P.W.10. It is his further submission that the view taken by the Court below is not a plausible one and the findings of the trial Court are against the weight of evidence for which interference by this Court in appeal is warranted.
Mr. S. L. Kochar the learned Counsel for the respondents., per contra submits that as the eye-witnesses have not supported the version of the prosecution and the evidence of the informant being replete with inherent inconsistencies there was justification on the part of the trying Magistrate to treat the evidence of the informant as incredible. It is further contended by him that there has been proper analysis of the evidence on record and the view taken by the Court below is a possible one. It is also canvassed by him that the reasonings advanced by the Court below in justification of the acquittal are not perverse and, therefore, this Court in appeal should not interfere.
6. It is well settled in law that if a plausible view has been taken by the trial Court while passing a judgment of acquittal the Appellate Court should not interfere because a different view can be taken on the basis of materials on record. It is also settled in law that if the judgment of the acquitting Court is apparently erroneous or reasonings given are contrary to the weight of evidence, there is no bar or impediment on the part of the appellate Court to re-assess or re-appreciate the evidence on record. In this context we may refer to the decision rendered in the case of Goverdhan Raoji Gyare v. State of Maharashtra, 1993 (3) Cr. L.J. 3414, where in the Apex Court has held as follows :
"There is no manner of doubt that the Court of appeal is required to take into consideration the reasons given by the trial Court in basing a judgment of acquittal, very carefully and if such reasonings are consistent with the evidence, as a matter of prudence the Court of appeal should not interfere with the order of acquittal, by reappreciating the evidence and taking some other view. But if the reasonings given by the trial Court are contrary to the weight of evidence, the Court of appeal would be justified in discarding the same in exercise of its appellate jurisdiction."
In the case of Kathawat Servi v. State of Tamil Nadu, (1994) SCC (Cr) 69, it has been laid down that it is not correct position in law that the Appellate Court is precluded from reassessing the evidence in an appeal arising out of the judgment of the acquittal. If the finding given by the trial Court is against the weight of evidence and the view taken by the trial Court is unreasonable, the Appellate Court will be justified in rejecting such unreasonable findings made by the trial Court and will be competent to set aside the order of acquittal and convict the accused.
Recently in the case of Uppari Venkatswamy v. Public Prosecutor, High Court of A.P., (1996) 7 SCC 232, the Apex Court expressed thus :
"It is now well settled by a catena of decisions of this Court that in an appeal against acquittal the Appellate Court can interfere with the findings of fact recorded by the trial Court and can upset the acquittal by reappreciating evidence if it is found that the view taken by the acquitting Court was not a possible view on the evidence on record."
The aforesaid view has been reiterated in the decision rendered in the case of Harichand and Anr. v. State of Delhi, (1996) 9 SCC 112. It has been held therein as under :
"It is now well settled that in appeal against acquittal the High Court is entitled to reappreciate the evidence if it is found that the view taken by the acquitting Court was not a possible view or that it was a perverse or infirn or palpably erroneous view."
We may also refer to the decision rendered in the case of Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225, wherein the Apex Court has laid down the principles relating to the approach of the High Court while reversing an order of acquittal. To quote:
"This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the Appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions."
7. Bearing in mind the aforesaid principles we shall now proceed to examine the reasons advanced by the learned trying Magistrate in recording the order of acquittal. We find from the reasonings ascribed by the learned Magistrate that he has been persuaded not to believe the testimony of the informant P.W.3 as he has noticed certain discrepancies in the evidence of the said witness and P.W.5 Govindsingh in regard to the manner of catching hold of his hands by the accused Bhagbalsingh. He has also taken exception to the omission of this aspect in the statement of Karansingh before the police under Ex.P. 1. He has also found discrepancies with regard to the manner of assault. Discrepancies relating to the time of occurrence as stated by various witnesses has also weighed with him. The learned Magistrate has also taken into consideration the non-support of the prosecution version by the independent witnesses and the reliance of the prosecution on the witnesses who are interested in the prosecution, because of their close relationship with the informant. Emphasis has also been laid on the non-seizure of the earth from the spot and non-sending of the weapon for chemical examination. He has also opined that the prosecution has not proved whether there was a cut on the right side of the seized shirt though the same could have been found out from the Doctor, P.W. 10. It is also worthwhile to note that the statement of Gulabrani, P.W. 6 has been disbelieved on the ground that she could not have witnessed the occurrence because of the poor eye-sight. On the basis of the aforesaid reasonings he has accepted the version of the defence that the informant might have sustained the injuries by falling on the plough.
To appreciate the correctness of the aforesaid reasonings we have carefully perused the impugned judgment. We have scanned the evidence with utmost anxiety. On a perusal of F.I.R., Ex.P.3, we find that Karansingh has mentioned that his hands were caught hold of by Bhagbalsingh. This aspect has also been stated by P.W.5 and P.W.6. The reasonings given for not accepting the presence of P.W.5 Govindsingh at the spot are not based on cogent reasons because the conclusion has been arrived at due to discrepancy in the time of arrival. The reason given by the learned trying Magistrate is quite unreasonable, for a rustic and illiterate villager is not expected to speak precisely in regard to time. The reason indicated for not accepting the evidence of Gulabrani, P.W.6 is that she had accepted in cross-examination that she was not able to see beyond 3 yards. This reason is not convincing inasmuch as the presence of Gulbarani has been mentioned in the FIR from the very beginning. It has been stated that hearing the cry of the informant she had rushed to the spot which was nearby. The acceptable and credible evidence of P.W.6 cannot be totally ignored solely on the basis that she had a weak eye-sight. It is borne in mind that there is difference between rural and urban witnesses. The rustic background and their behavioural pattern are to be kept in mind. The exaggeration or embellishment cannot be a ground to throw away the entire evidence. That apart, unerroneous statement to a peripheral matter could not be a justification for rejection of the evidence in entirety. Judged by these parameters, the non-acceptance of the testimony of P.W.6 by the learned Magistrate is not sustainable. Even if the version of this witness is disbelieved there is no cogent reason to discard the testimony of P.W.3 and P.W.5. On a perusal of evidence of P.W. 3, the informant, it is perceptible that he has clearly stated that Bhagbalsingh had caught hold of his hands and Raghurbirsingh assaulted on his chest with an axe and there was a profuse bleeding. In the cross-examination he has deposed firmly about the dispute relating to the land and the assault made by Raghubirsingh. In the cross-examination at the instance of Raghubirsingh he has remained unshaken and, in fact, reiterated with further clarity the role played by the said accused. His evidence with regard to assault has been duly corroborated by the Doctor. P.W. 10. It is manifest from the materials on record that he was sent for medical examination in quite promptitude. P.W. 10, the Doctor, who had examined him, had found an injury of 3"x 1" x 1 1/2" on the right side of the chest and has noticed that right clavicle was cut at medial end and the depth was more at upper and less at the lower end. He had advised for x-ray and further treatment. His report has been brought on record as Ex. P.9. X-ray report and x-ray plates have also been brought on record as Ex.P.12 and Ex.P. 13. From Ex.P. 12 it is noticed that there was a fracture at medial end of the clavicle. From the aforesaid it is quite clear that the medical evidence clearly supports the oral testimony of the informant. The statement of the Doctor that such wound is possible on a fall on a blunt object, should not have been given undue emphasis by the trying Magistrate when there is clinching evidence relating to launching of assault. Furthermore, the testimony of that informant with regard to existence of dispute pertaining to the land is beyond reproach. The discrepancies in evidence of P.W. 3 and P.W.5 and inconsistencies with regard to the time of occurrence are too trivial to affect the prosecution case, more so, when the injured-informant has stood imbedded in his version and has deposed in details with utmost clarity with regard to the occurrence. The discrepancies, in our view, pale into insignificance. The reasons given by the learned trying Magistrate for discarding the reliable testimony of the informant are apparently erroneous and quite in the realm of protervity. The exception taken for non-seizure of earth from the spot and non-sending of the shirt for chemical examination and omission of certain queries from the Doctor is, in fact, indicative of apparent erroneous approach of the learned trying Magistrate as those aspects in no manner affect the case of the prosecution. While not accepting the reasonings of the learned trying Magistrate as they are against the weight of evidence on record and result of a total erroneous approach, on re-assessment and re- appreciation of the evidence on record we are of the considered view there is no justification for discarding the version propounded by the prosecution. The judgment passed by the Court below is pregnable being apparently erroneous and is liable to be set aside, and accordingly we do so. We hold that the respondents are guilty of the offence under Sections 326/34, Indian Penal Code.
8. We shall address ourselves to the question of sentence. The occurrence had taken place in the year 1981. It has been submitted by Mr. Kochar that the respondents had no criminal antecedents and have not been involved in any other crime in last one and half decade. Keeping in view the long passage of time and the background of the case we are of the considered view it would not be advisable to send the respondents to custody, at such a distance of time. Accordingly, we impose of a fine of Rs. 5,000/- on each of the respondents. The aforesaid amount of fine shall be deposited in the Court below within a period of four months from today, in default, the respondents shall undergo rigorous imprisonment for a period of six months. If the fine amount is deposited, Rs. 7000/- shall be paid as compensation under Section 357 of the Code of Criminal Procedure to the injured-informant, Karansingh.
9. Resultantly the appeal is allowed.