Madhya Pradesh High Court
Kishore Samrite vs The State Of Madhya Pradesh on 6 May, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 6th OF MAY, 2024
CRIMINAL APPEAL NO.27 of 2010
BETWEEN:-
1. KISHORE SAMRITE, SON OF NANAJI SOMRITE,
AGE 35 YEARS, RESIDENT OF LANJI, POLICE
STATION AND TAHSIL LANJI, DISTRICT
BALAGHAT (M.P.)
2. ANIL ALIAS ANEK, SON OF RAMADEEN, CASTE
GADEWAL, , AGED 27 YEARS, RESIDENT
OF CHICHTOLA, POLICE STATION LANJI,
DISTRICT BALAGHAT (M.P.)
3. AJIT HATHIMARE ALIAS BHURA, SON OF
DEVRAM HATHIMARE, CASTE KUNBI, AGED 25
YEARS, AT PRESENT RESIDENT OF
BHANEGAON, POLICE STATION LANJI,
DISTRICT BALAGHAT (M.P.)
4. RAJU, SON OF DEVRAM RAMTEKKAR, CASTE
KALAR, AGED 24 YEARS, RESIDENT OF
PURVATOLA, POLICE STATION LANJI,
DISTRICT BALAGHAT (M.P.)
5. VIDHAN JOGI, SON OF GOVIND ETORIA, AGED
24 YEARS, RESIDENT OF DAKHNITOLA,
POLICE STATION LANJI, DISTRICT BALAGHAT
(M.P.)
6. NANDU ALIAS NANDLAL, SON OF SOVINDA
THAKIRE, AGED 58 YEARS, RESIDENT OF
BHANEGAON, POLICE STATION LANJI,
DISTRICT BALAGHAT (M.P.)
7. GUDDU ALIAS OM PRAKASH, SON OF
BHAIYALAL DOMDE, CASTE SUNAR, AGED 29
YEARS, RESIDENT OF VILLAGE BHANEGAON,
POLICE STATION LANJI, DISTRICT BALAGHAT
(M.P.)
....APPELLANTS
(APPELLANT NO.1 BY SHRI SHIVENDRA PANDEY - ADVOCATE )
2
(OTHER APPELLANTS BY SHRI SHIVAM SINGH - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION LANJI, DISTRICT
BALAGHAT (M.P.)
.....RESPONDENT
(BY SHRI ALOK AGNIHOTRI - GOVERNMENT ADVOCATE)
............................................................................................................................................
Reserved on : 10.04.2024
Pronounced on : 06.05.2024
............................................................................................................................................
This criminal appeal having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
JUDGMENT
This appeal under Section 374(2) of the Code of Criminal Procedure is arising out of the judgment dated 22.12.2009 passed by the Special Judge {SC/ST (Prevention of Atrocities) Act}, Balaghat, District Balaghat in Special Sessions Trial No. 15 of 2007 whereby all the appellants have been convicted for the offence punishable under Sections 435/149, 332/149, 427/149 and 147 of the Indian Penal code and sentenced to R.I. for five years and fine of Rs.10,000/- each, in default S.I. for six months; R.I. for two years and fine of Rs. 1,000/- each, in default S.I. for two months; R.I. for one year each and R.I. for one year each respectively; and under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act and sentenced to R.I. for three years and fine of Rs.1000/- each, in default further S.I. for two months.
2. The case of the prosecution, in brief, is that on 19.04.2004 at about 1.45 P.M., when Dhaneshwar Sai (PW-1) S.D.M., Lanji was 3 sitting inside his court room along with other officials and employees, at that time the appellants accompanied by other co-accused persons armed with lathis by forming unlawful assembly entered in the court room as they were protesting against the encroachment drive undertaken by the State. The appellants abused Dhaneshwar Sai (PW-1) and assaulted him with lathi. Dhaneshwar Sai (PW-1) sustained injury on his right palm. He ran inside his chamber. Thereafter, appellant no.1 urged other accused persons to set the court room building on fire. Thereafter, all the accused persons in furtherance of common intention set on fire the Govt. vehicle i.e. Jeep of the S.D.M. parked outside the court room bearing registration No. MP02-5004. The said unlawful assembly also caused damage to the furniture kept inside the court room. Thus, the accused persons by creating fear and using criminal force deterred the public servants from performing their Govt. duty. The accused persons also abused the complainant by referring to his caste in public view.
3. On oral information of complainant, an FIR was lodged at Police Station Lanji vide Crime No.145/2004. The spot map was prepared. The accused persons were arrested and necessary seizures were made. After investigation Challan was filed before the court of Magistrate. The trial court framed the charges against the appellants for the offences under sections 148, 307, 427/149, 435/149, 436/149, 332/149 IPC and section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The appellants abjured the guilt and claimed false implication. The appellant No.1 has taken a defence that he was the President of the Samajwadi Party and was a candidate for the Lok Sabha elections and he has been falsely implicated so that he may not be able to contest the elections.
4. The prosecution examined as many as 27 witnesses whereas 06 4 witnesses have been examined by the appellants in their defence. Out of 27 witnesses, 08 witnesses have claimed themselves to be the eye- witnesses and 06 witnesses have not supported the case of prosecution and were declared hostile. Only two eye-witnesses i.e. Suresh (PW-9) and Anil (PW-13) have supported the case of the prosecution partly.
5. The trial Court after appreciating the ocular as well as documentary evidence that has come on record convicted the appellants as mentioned above by relying upon the testimony of Dhaneshwar Sai (PW-1), Sukhnandan (PW-14) and Ramroop Bari (PW-25).
6. Shri Shivendra Pandey, learned counsel appearing for appellants No.1 has drawn attention of this Court towards the statements of witnesses i.e. Dhaneshwar Sai (PW-1), Komal Bairagi (PW-13) and Sukhnandan Dehariya (PW-14) and submitted that they are inconsistent and there are material omissions and contradictions in their statements which indicate that they have narrated a false story before the Court. As per Shri Pandey, it was only a public agitation and was being led by appellant No.1 who is a political person and leader of that area but no independent and direct allegation naming appellant No.1 has been made. He has further drawn attention towards paras 6 and 8 of the statement given by Dhaneshwar Sai (PW-1)/ complainant, which reads as under:-
Þ6- dksVZ ds gksexkMZ us bu yksxks a dks ckgj fudkykA mlds ckn vjksihx.k cksys ekj Mkyks] vkx yxk nks] Hkkxus u ik;sA 8- mlds ckn vkjksihx.k cksys fd bldh xkM+h ckgj [kM+h gS] bles a vkx yxk nksA mlds ckn vkjksihx.k us isVªksy fNM+ddj esjs 'kkldh; okgu dzekad ,e-ih-02&5004 esa vkx yxk nhA dk;kZy; esa nhoky esa vkx ugha yx ikbZA vkjksihx.k us gekjs dk;kZy; dk VsyhQksu Hkh dkV fn;k FkkA dk;kZy; esa Hkh vkjksihx.k us rksM+ QksM+ dhA dqlhZ Vscy rksM+ fn;s] dkap rksM+ fn;sAß
7. Learned counsel for appellant No.1 has further submitted that 5 there is no direct and specific allegation against the appellant No.1. It was a mob and as such, it is difficult to identify as to who in fact has assaulted the complainant and caused damage to the Government office and also set the vehicle lying in the office premises on fire. He has further drawn attention of this Court towards paras 19, 22 and 25 of the statement of Dhaneshwar Sai (PW-1) so as to substantiate that appellant No.1 is a known figure for the complainant but not alleging against him by the complainant clearly indicates that appellant No.1 has done nothing and as such, no direct allegation was made against him. He has further submitted that there was no motive for the appellant No.1 to cause injuries to the complainant or to cause any damage to the office because Dhaneshwar Sai (PW-1) in para 22 of his statement has admitted that 'fd'kksj lefjrs ;k fdlh Hkh vkjksih ls esjh iqjkuh nq'euh ugha Fkh'. He has also pointed out that as per paragraph 25 of the statement of Dhaneshwar Sai (PW-1), the appellant No.1 was a candidate for Lok Sabha elections and when accused entered into the room of the complainant, they have not disclosed as to what grievances they had against the complainant. He has further drawn attention of this Court to the statement of Kamal Bairagi (PW-13) who, at the relevant time was working as peon in the office of the complainant, but according to him, he exaggerated the story and made allegation against appellant No.1 which is not corroborating with the statement of other witnesses especially Dhaneshwar Sai (PW-1), although, he was declared hostile. In para 17 though this witness has made allegation against appellant No.1 narrating that he has assaulted the complainant but his statement is not corroborating with the statement of Dhaneshwar Sai (PW-1).
8. As per the statement of Sukhnandan (PW-14) who was the then Tahsildar and at the relevant point of time was posted at Tahsil Lanji, on 6 a suggestion made, has denied that appellant No.1 on earlier occasion made several complaints against him regarding corruption.
9. Learned counsel for appellant No.1 has further submitted that on perusal of the statements of eye-witnesses and the story narrated by them, it is clear that there was no consistency in their statements and each of them has stated a different story and this is sufficient to draw an inference that all the witnesses who claimed themselves to be the eye- witnesses have not seen the incident. He has further submitted that Dr. Umesh Dahare (PW-24) has also been examined and he has described the injuries sustained by the complainant and on a suggestion made by the defence, he has stated that all the injuries sustained by the complainant could be caused by colliding with a wall or falling down on a floor. Learned counsel has further stated that only to implicate the appellant No.1, a false story has been concocted so as to defame him as he was one of the contesting candidates in a parliamentary elections. He has relied upon the opinion given by the doctor while conducting the MLC that all the injuries were simple in nature and as such, he submitted that at the most, offence under Section 323 of IPC is made out but that too not against the appellant No.1.
10. Learned counsel for appellant No.1 has further submitted that Ramswaroop Bari (PW-25) who at the relevant time was posted as Chief Executive Officer in his statement has informed the Court that at the time of incident, appellant No.1 came along with 08-10 people with iron rods and lathi. He has further deposed that he knew the appellants and other persons but name of only appellant No.1 was given to the police. Learned counsel has submitted that statement of Ramswaroop Bari (PW-25) cannot be relied upon. In para 16 of the statement, this witness has stated that he had not seen the incident of setting the jeep on fire 7 because he himself has admitted that he had not seen the incident and who sat the vehicle on fire. On a suggestion made to him, he has denied that appellant No.1 has made complaint regarding corruption against him. But later on he has admitted that when he was the C.E.O. of Janpad Panchayat at Mauganj, the appellant No.1 made complaint against him and, therefore, learned counsel submitted that Ramswaroop Bari (PW-
25) is the interesting witness and made false statement in the Court. He has further drawn attention on the judgment passed by the trial Court in paragraph 44 wherein the Court has observed that on a call made by the accused, somebody set the government vehicle on fire but not specifically named as to who did it. As such, Shri Pandey has tried to establish that there is inconsistency in the statement of witnesses and material contradictions, not supporting the case of prosecution by most of the eye-witnesses which clearly indicates that a false story has been concocted and if at all considering the injuries sustained by the complainant, at the most, offence under Section 323 of IPC would be made out.
11. Shri Shivam Singh, learned counsel appearing for the other appellants has also supported the submission made by Shri Shivendra Pandey and in furtherance to the same has submitted that the statement of Dhaneshwar (PW-1) made in paragraph 30 and the story narrated by him has not been supported by other witnesses. He has submitted that there are omissions made in the statement of Dhaneshwar (PW-1). He has further submitted that in the statements of Ganesh Ramtekkar (PW-10) and Shivprasad (PW-11), they have stated that though they were present but not seen any incident as to who committed the offence and as such, no case is made out against other appellants also.
12. On the other hand, Shri Alok Agnihotri, learned counsel for the 8 respondent/State has submitted that from the contents of FIR, the motive is very clear that appellant No.1 came along with mob agitating their grievance that in an encroachment drive, the house of one Hathimare was demolished and as such, they showed their annoyance and assaulted the officer who was initiating that encroachment drive. He has also submitted that the statement of Sukhnandan Dehariya (PW-14) in paragraph 10, the motive has also been explained that the complainant being the officer got the house of one Hathimare demolished. He has also pointed out that in the statement of Ramswaroop Bari (PW-25), he has categorically stated that the appellants along with 08 to 10 persons entered into the room of the complainant and assaulted him. He has also stated that the police had seized lathi and plastic container from the appellant No.1 and that seizure memo is Exhibit P-24. It is also clear from his statement that complainant was sitting in his office and performing his official work. As per Shri Agnihotri, the trial Court has considered the statement of witnesses and in para 17 of its judgment relying upon the statement of Komal Bairagi (PW-13) has very categorically observed that the said witness and one Shri Arvind tried to resolve the dispute and came in between. He has specifically taken the name of appellant No.1 and other accused persons who have not only abused the complainant but also assaulted him with lathi. In para 26 of the judgment, again the trial Court relying upon the statement of Mohanlal Shrivastava (PW-18) who has stated that police has made seizure of the damaged articles and official documents which got damaged by the appellants. In para 23 also, the trial Court has considered the statement of Suresh (PW-9) who has also acknowledged the presence of appellant No.1 on spot when the incident occurred. Shri Agnihotri has further submitted that minor omissions and contradictions 9 carry no impact over the incident and only on the basis of that the case of prosecution cannot be doubted. The testimony of the prosecution witnesses cannot be considered to be suspicious because they have not supported the case of prosecution as it is as they had narrated before the police.
13. Heard learned counsel for the parties at length and also perused the record.
14. Dhaneshwar (PW-1) who is the complainant and an injured person has very categorically stated that on the date of incident i.e. 19.04.2004 at about 1.45 P.M., he was sitting in the office along with other employees and was performing official work when all of a sudden, appellant No.1 along with other accused persons armed with lathi entered into the room. They not only abused the complainant but also assaulted him and shouted that the office be set on fire so that the complainant may die and thereafter when the Home Guards get them out, they set the Government vehicle on fire. There might be minor contradictions and omissions in his statement but his testimony cannot be doubted.
15. The Supreme Court in case of Brahm Swaroop and another Vs. Start of Uttar Pradesh 2011(6) SCC 288 has considered about the testimony of injured witness and also considered as to in what manner, the evidence has to be appreciated ignoring minor discrepancies and inconsistencies in deposition of witnesses and finally observed as under:-
"30. It has been submitted by the learned Senior Counsel for the appellants that there is a contradiction between the medical and ocular evidence. From the post-mortem report of Virendra Singh (D-3) (Ext. Ka-8), it is evident that his body was having contusions; the post-mortem report of Rajendra Singh (D-2) (Ext. Ka-9) reveals that he was having abrasions; and the post- mortem report of Natthu Singh (D-1) (Ext. Ka-10) also reveals several 10 abrasions. The High Court has given cogent reasons explaining these discrepancies by saying that at the time of firing, the deceased must have reacted to the assault and might have received some abrasions and contusions in order to save themselves.
31. Rajendra Singh (PW 2) has stated that he remained at the place of occurrence till 7 p.m. and he denied his signatures. The High Court has furnished a cogent explanation for such contradiction, and held that his statement had been recorded after 3 years of the incident and thus, such infirmity is bound to occur but does not affect the credibility of the witnesses.
32. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evidence in its entirety. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions."
Difference in some minor details, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses."
16. Further, the Supreme Court in case of Thoti Manohar Vs. State of Andhra Pradesh (2012) 7 SCC 723 has dealt with the situation and has observed as to in what manner, the evidence of witnesses can be appreciated and has also dealt with the scope of minor discrepancies and observed as under:-
"38. The learned counsel for the appellant has endeavoured hard to highlight certain discrepancies pertaining to time, situation of the land, number of persons, etc. but in our considered opinion, they are absolutely minor in nature. Minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hypertechnical approach. The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored. This has been so held in State of U.P. v. M.K. Anthony, 11 Appabhai v. State of Gujarat, Rammi v. State of M.P. State of H.P. v. Lekh Raj, Laxman Singh v. Poonam Singh and Dashrath Singh v. State of U.P.
39. No evidence can ever be perfect for man is not perfect and man lives in an imperfect world. Thus, the duty of the court is to see with the vision of prudence and acceptability of the deposition regard being had to the substratum of the prosecution story. In this context, we may reproduce a passage from the decision of this Court in State of Punjab v. Jagir Singh wherein H.R. Khanna, J., speaking for the Court, observed thus :
"23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
17. Although, counsel for the appellant No.1 has tried to establish that there is no specific and direct allegation made against the appellant No.1 that he caused injuries to the complainant and also set on fire a government vehicle and, therefore, he cannot be convicted and judgment of the trial Court is liable to be set aside but this Court is convinced with the submission made by counsel for the appellants for the reason that each and every witness has acknowledged the presence of appellant No.1 at the place of incident. It is also clear from the statements of witnesses that it was the appellant No.1 who was leading the mob and otherwise, he was member of the unlawful assembly. The trial Court has convicted the appellants under Section 149 of IPC which reads as under:-
"149. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in 12 prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
18. Perusal of the aforesaid provision would make it clear that as per the evidence available, the offence has been committed and it is not material as to who has committed the offence, but considering the overall material available, it is clear that appellant No.1 was one of the members of unlawful assembly and as such, he is equally responsible for the offence committed and is rightly held guilty of the said offence.
19. Counsel for the appellant No.1 has further tried to establish that there was no motive and appellant No.1 has been falsely implicated only because he being a political person contesting parliamentary election but the material available on record speaks otherwise. The presence of appellants has been acknowledged by most of the eye-witnesses. The incident occurred in a Government office in front of many persons when complainant was performing his official duty, can also not be ignored and as per the material available, the story of the prosecution cannot be doubted. The officer i.e. the complainant (PW-1) has sustained injuries and the doctor in his statement also supported the MLC report. He has stated that though injuries were minor but sustained by the complainant while performing the official duty. The Government vehicle lying in the office premises was also set on fire although who did so has not come specifically but as per the statement of witnesses, the appellants entered into the office and have shouted and made a cry that office should be set on fire. The Government property was damaged and loss was suffered and as such, offence under which appellants have been convicted is made out. As per the conviction under Section 435 of IPC, the ingredients of the said offence are available on record.
13"435. Mischief by fire or explosive substance with intent to cause damage to amount of one hundred or (in case of agricultural produce) ten rupees.--
Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or upwards or (where the property is agricultural produce) ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. "
20. Similarly, Section 332 of IPC reads as under:-
332. Voluntarily causing hurt to deter public servant from his duty.--
Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
21. It is clear from the statement of witnesses and the finding given by the trial Court that PW-1 the then SDM while performing official duty received injuries by the appellants and as such, offence of Section 332 is made out.
22. Likewise, Section 427 reads as under:-
"Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
23 The said offence is also proved by the prosecution as prosecution witnesses have clearly narrated that a Government vehicle i.e. jeep bearing registration number MP02-5004 was set on fire and got damaged by the appellants.
24. However, the offence relating to Section 3(1)(x) of the SC/ST Act is not proved and no material is available on record so as to prove the ingredients of this offence. Merely a statement made by PW-1 saying that complainant is an 'Adiwasi' does not fulfil the requirement. Calling 14 someone 'Adiwasi' is not sufficient to establish the offence under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act. Except this, there is nothing available on record and as such, conviction of the appellants under the said offence is not sustainable.
25. So far as other offences are concerned, in my opinion, the prosecution has proved its case beyond reasonable doubt before the trial Court and, as such, the trial Court after appreciating the evidence of the witnesses and other material produced by the prosecution has rightly convicted the appellants.
26. Consequently, the impugned judgment of conviction as well as sentence in respect of offence under Sections 435/149, 332/149, 427/149, 147 of the Indian Penal Code is hereby affirmed. But conviction and sentence of appellants in respect of offence under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act is hereby set aside. The appellants are acquitted of the offence under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act.
27. Appellant no.6 is reported to be dead. Hence, appeal of appellant no.6 is dismissed as abated.
28. So far as remaining appellants are concerned, they are on bail. Hence, the appellants are directed to surrender before the trial Court forthwith for undergoing the remaining part of the jail sentence. The bail bonds and surety bonds of the appellants stand cancelled.
29. Record of the trial court be immediately sent back to the court below for necessary information and compliance.
30. In the result, the appeal is partly allowed.
(SANJAY DWIVEDI) JUDGE rao SATYA SAI RAO 2024.05.09 15:19:59 +05'30'