Madhya Pradesh High Court
The State Of M.P. vs Baba @ Dev Bahadur And Ors. Judgement ... on 26 June, 2013
Cr.A. No.399/1998
Page No. 1
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH: HON'BLE SHRI JUSTICE SUBHASH KAKADE
CRIMINAL APPEAL NO.399 OF 1998
APPELLANT : The State of Madhya Pradesh
through Police Station Gadwa,
District Sidhi (MP)
Versus
RESPONDENTS:1. Baba @ Dev Bahadur Singh,
S/o Tulsi Singh, aged 25 years,
2. Chhote @ Jagat Bahadur Singh,
S/o Tulsi Singh, aged 23 years,
3. Munna @ Indrajit Singh,
S/o Tulsi Singh, aged 20 years,
All R/o Village Machi, Police Station Gadwa,
District Sidhi (MP)
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For the Appellant /S tate: Ms. Savita Choudhary, Panel Lawyer For the Respondent : Shri Abdesh Kumar Gupta, Advocate
-------------------------------------------------------------------------------- Date of hearing :10.05.2013 Date of judgment : 26.06.2013 (J U D G M E N T) This appeal is filed by the State, challenging the judgment dated 27.05.1996 passed by Judicial Magistrate First Class Deosar, District Sidhi in Criminal Case No.562 / 1986, whereby the learned trial Court has acquitted the accused persons / respondents for committing offences under Section 325 / 34 of the Indian Penal Code.
Cr.A. No.399/1998Page No. 2
2. The prosecution case, stated briefly, is that there existed a dispute over grassing of grass between the complainant Gevinath and Tulsa Singh, father of respondents. On 17.08.1986 at 11:00 a.m. when resident of village Berra Gevinath was going by bicycle for grinding wheat to village Khatai and reached in front of house of one Ahir at village Machigadi at that time respondent Baba Singh given a stick blow on his right ear so he run leaving bicycle behind. The respondents chased him and beaten by stick, Tongi all over the person of Gevinath. Cry for help of Gevinath were heard by Nanda Ahir, Girdaval Koul, Munshilal, Shivcharan Benga, Narayan Koul and other who rushed to the spot and helped to bring Gevinath at his house. Gevinath went to the police station Gadwa, District Sidhi where he lodged Dehati Nalishi. He was sent for medical examination at District Hospital Sidhi after receiving MLC and X-ray report FIR were registered. During investigation ASI Tilakraj Singh prepared spot map, seized blood stained clothes of Gevinath, arrested respondent. After due investigation, challan was filed against the respondents for the aforesaid offences.
3. Learned trial Court framed charges as mentioned in para 01 against the respondents for inflicting grievous hurt to Gevinath, they abjured the guilt and claims to be tried.
4. The prosecution in support of its case examined 4 witnesses and exhibited 6 documents. The statements of the accused persons were recorded under Section 313 of the Criminal Procedure Code in which the accused persons simply denied the prosecution evidence and stated that they have been Cr.A. No.399/1998 Page No. 3 falsely implicated in the crime due to enmity. Learned trial Court found that the statements of eye witnesses are not sufficient to convict the accused persons and came to the conclusion that prosecution did not established its case beyond all reasonable doubts, therefore, acquitted the accused persons. Aggrieved by the acquittal recorded by the learned trial Court, appellant State have filed this appeal.
5. I have heard Ms. Savita Choudhary, learned Panel Lawyer for the appellant /State and Shri Abdhesh Kumar Gupta, learned counsel for the respondent. Ms. Savita Choudhary, learned Panel Lawyer for the State has led me through the record and contended that the learned trial judge has committed an error in holding that evidence of eyewitness is not reliable. She further submitted that impugned order is not based on the proper marshaling of statement of complainant Gevinath. On the other hand, Shri A.K. Gupta, learned counsel for the respondent has supported the judgment recorded by learned trial Court acquitted the respondent as indicated above.
6. The first question that arises for consideration is whether Gevinath got grievous injury on his person?
7. Reasons best known to the learned trial magistrate that why proper opportunity did not given to the prosecution for examine the Doctor who medically examined the injured Gevinath and why did not give opportunity to examine the Doctor who gave the X-ray report of Gevinath.
8. Gevinath (PW-1) stated that due to incident his condition was serious so he went to Sidhi where he lodged the report and Cr.A. No.399/1998 Page No. 4 there from he sent to District Hospital Sidhi where doctors examined him and hospitalized also. MLC report explains 6 injuries on person of complainant Gevinath and to ascertain nature of injuries X-ray was recommended. As per X-ray report 3 injuries were grievous in nature, left and right forearm have been fractured.
9. This brings to determine the crucial question as to who caused the grievous injuries to the Gevinath?
10. On close scrutiny of the statement of Gevinath (PW-1), I find that this witness did not inspire confidence. There are material discrepancies in his evidence in case diary statement as well as in Rojnamcha Sanha report details.
Motive not proved
11. It is mentioned that there was enmity between complainant Gevinath (PW-1) and Tulsa Singh, father of the accused persons. Cause of enmity is also mentioned that there was dispute regarding the grazing of grass between the both parties. But, during examination in chief Gevinath (PW-1) did not utter a single word about this enmity. Despite above mentioned facts of enmity in Rojnamcha Sanha, Gevinath (PW-1) denied this fact that he is in inimical terms with accused persons or their father Tulsa Singh. Gevinath (PW-1) also denied the suggestions that he stated this fact during the report that he has old enmity with the accused persons. He also denied this suggestion that in Revenue Court Tehsil Chitrang, there is pendency of a case between accused persons and him related with Section 107 / 116 of Criminal Procedure Code. This contradiction goes to the root Cr.A. No.399/1998 Page No. 5 cause of motive of incident which is specifically mentioned in basic prosecution documents, therefore, this major contradiction cannot be ignored which is fatal also.
Delayed First Information Report
12. It is also pertinent to mention here that incident took place on 17.08.1986 in between morning 8:00 to 11:00 a.m. Rojnamcha Sanha report was lodged at Kotwali Sidhi, instead of Police Station Gadwa under which jurisdiction Village Berra of complainant and place of incident situated. Secondly, from place of incident at Village Berra distance of Police Station Gadwa is 13 kms. Therefore, it is clear that after delay of more than 27 hours at Police Station Kotwali Sidhi Rojnamcha Sanha report were lodged on 18.08.86 in the evening at 5:15 p.m.=17:15 hours. Thirdly, after medical examination and X-ray formalities the First Information Report were written at Police Station Gadwa on 5 th day i.e. 22.08.1986 in the night at 20:00 hours.
13. Gevinath (PW-1) also given explanation of above delay that due to inflicted injury he was unconscious, not able to move therefore, helping villagers Amrit, Girdaval carted him from his residence to the Police Station Kotwali Sidhi. Even then, first delay of 27 hours, not second delay of 5 days, is not satisfactorily explained which alone is fatal.
Material Contradictions
14. There is very material contradiction in statement of Gevinath (PW-1) when he says that his statements were recorded by the police officer at place of incidence itself. Question arises whether there was any occasion for police officer of availability of Cr.A. No.399/1998 Page No. 6 Gevinath (PW-1) after the incidence on the spot of incidence? As mentioned above that after the incident Gevinath (PW-1) was not in position to move therefore he was carted straight way to the Police Station Kotwali Sidhi and First Information Report was registered after receiving medical papers of injured on 5 th day, then it was not possible for Gevinath (PW-1) be available on the spot of incident on second day. This controversial admission of Gevinath (PW-1) is also against the prosecution.
15. This vital quarry remains unexplained that Gevinath (PW-1) again and again stated that the accused persons inflicted injury on his person by stick and Tangi. Tangi is a weapon made of sharp cutting edged iron. But, there is only one injury found on the person of Gevinath (PW-1) which was incised wound.
16. Gevinath (PW-1) categorically denied all these suggestions that the accused persons did not inflicted him injuries because these injuries were caused to him when he fell down from bicycle on the rough and stony surface. Mere presence of 6 injuries on the person of Gevinath (PW-1) cannot be basis of conviction when other eyewitnesses did not support the statements of Gevinath (PW-1).
17. It is also pertinent to mention here that Gevinath (PW-1) has identified only two accused, Baba Singh and Chote Singh but, he did not named the third accused Munna @ Indrajeet Singh. This non- identification is also against the prosecution.
Non-support of other prosecution witnesses
18. As per the admission of Gevinath (PW-1) and facts mentioned in the Rojnamcha Sanha report it was Nandlal (PW-2) Cr.A. No.399/1998 Page No. 7 who came to first of all for rescue of complainant. During examination in chief when Nandlal (PW-2) did not support the prosecution story he was declared hostile. At this second stage he admitted some facts supporting the case of prosecution but, not as the status of eyewitness but as an hearsay eyewitness. Finally Nandlal (PW-2) during the cross examination, admitted this fact that when he heard cry of Gevinath for help, he went to the spot where he found Gevinath unconscious. He also admitted that he did not see accused persons at the place of the incident. Nandlal (PW-2) also vanished his status of hearsay witness after admitting this fact that it is true that unconscious Gevinath did not told him any fact regarding the incidence.
19. Girdaval and Munshilal examined as PW-3 and PW-4 out of others as Shivcharan and Narayan were not examined by the prosecution.
20. Girdaval (PW-3) neither supported the statement of injured Gevinath nor the prosecution story. He straight way stated that incident did not took place in his presence. He further clarified but, which is not prosecution story that on second day this fact came to his knowledge that accused persons beaten Gevinath. Source of information also not disclosed by Girdaval (Pw-3) therefore, his evidence at all not supporting case of prosecution.
21. As per statement of Gavinath (PW-1) it is clear that on hearing of his cry for help Munshilal etc. came for his help who saw incident as well as running accused persons also, therefore, it is clear that there was no need to explain the facts of incident to any of witnesses who assemble on the spot hearing cry for help Cr.A. No.399/1998 Page No. 8 of Gevinath (Pw-1). As admitted by Nandlal (PW-2) that when he reached to the spot he found Gevinath was unconscious. In these facts and circumstances statement of Munshilal (PW-4) that when he reached on the spot, Gevinath was laying there who told him that accused persons were beaten him and requested to go and inform at his residence, is found not reliable. He did not utter a single word about this fact that at that time he saw accused persons were running from the spot.
22. The learned trial Court in light of above discussed facts and circumstances rightly disbelieved the statement of injured Gevinath (PW-1) and other witnesses Nandlal (PW-2), Girdaval (PW-3) and Munshilal (PW-4) due to delayed first information report, material contradictions in statement of witnesses and not proving motive of the incident. Thus prosecution was unable to prove the offence punishable under Section 325 / 34 of the Indian Penal Code against the respondents / accused Baba @ Dev Bahadur Singh, Chhote @ Jagat Bahadur Singh and Munna@ Indrajit Singh, therefore, there is no cause to interfere in the judgment rendered by the learned trial Court.
23. The appeal preferred by the State against the impugned judgment of acquittal dated 27.051996 liable to be and is accordingly dismissed.
Appeal dismissed.
(SUBHASH KAKADE) JUDGE AK/-