Madhya Pradesh High Court
The State Of M.P. vs Atrimuni Pandey Judgement Given By: ... on 26 June, 2013
Cr.A. No.2571/1997
Page No. 1
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH: HON'BLE SHRI JUSTICE SUBHASH KAKADE
CRIMINAL APPEAL NO.2571 / 1 9 9 7
APPELLANT : State of Madhya Pradesh
Versus
RESPONDENT : Atrimuni Pandey
S/o Sheshmani Pandey,
aged 32 years,
R/o Tihooli, P.S. Kamarji
District Sidhi (MP)
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For the Appellant /State: Shri Umesh Pandey, Government Advocate For the Respondent : None is present.
----------------------------------------------------------------------------------- Date of hearing : 12.04.2013 Date of judgment: 26.06.2013 (J U D G M E N T) Being aggrieved by the judgment dated 03.09.1997 passed by learned Judicial Magistrate First Class, Sidhi in Criminal Case No.1265 /1996 accused Atrimuni was acquitted from the charge of Section 325 of Indian Penal Code whereby appellant /State filed this appeal under Section 378 (1) of the Criminal Procedure Code, 1973.
2. Prosecution case which leads to the trial as essential as follows:-
On 31.07.1996 at 6:00 p.m. complainant Anusuiya Prasad Pandey was weeding his fields, his son Varunendra and younger son were grazing cattles in the field of respondent. Due to this grazing, respondent and his wife were annoyed, some scuffle also held between them during that time respondent given stick blows on left foot of complainant, so he fell down. Hearing uproar Varunendra, Jagana, Krishan Nayan were rushed on the spot and intervened.Cr.A. No.2571/1997
Page No. 2
3. Matter were reported at Police Station, to ascertain the nature of injury complainant Anusuiya Prasad was sent to medical examination District Hospital Sidhi. After receiving medical report First Information Report were registered. Investigating Officer went to the spot prepared map, recorded statements of complainant and other witnesses and after completion of investigation challan was filed.
4. Learned trial Judge on the basis of evidence available on record framed charge against accused as mentioned above who abjured his guilt, therefore, he was put to trial.
5. The prosecution examined complainant and other 5 witnesses and 7 documents were exhibited.
6. The statement of respondent was recorded under Section 313 of Criminal Procedure Code, in which he denied the charge leveled against him. The defence of the respondent that complainant is his elder brother and due to partition of the ancestral property, he falsely prosecuted in this matter by the complainant.
7. The learned trial Judge on the basis of evidence adduced came to hold that the charge under Section 325 of the Indian Penal Code against the respondent has not proved, therefore appellant acquitted from the aforesaid charge, hence State filed this appeal.
8. Shri Umesh Pandey, learned Government Advocate for the State has taken through the entire judgment and main grounds of challenge mentioned in the memo of appeal and have pointed out error that has allegedly committed at the time of recording of the finding of acquittal by the learned trial Court. One of the big bones of submission of Shri Pandey before me is that the learned trial Judge has not applied his mind when appreciating the evidence of Cr.A. No.2571/1997 Page No. 3 injured Anusuiya Prasad (PW-1) and eyewitnesses Varunendra (PW-2) and Jagna (PW-4) that accused Atrimuni is the author of the grievous injury caused on the person of complainant Anusuiya Prasad which is fully supported by the medical evidence also.
9. Now, it is to be seen whether respondent Atrimuni caused injury to the complainant Anusuiya Prasad?
10. Prior to evaluate the evidentary value of the prosecution witnesses it will be better to keep in the mind following settle position of law as well as principle laid down by the Apex Court in case of appeal against acquittal:-
(a) When the findings recorded by the trial Court are petent by wrong and perverse the High Court is entitled to or obliged to reverse the acquittal and convict the accused;
(b) even otherwise the evidence of the hostile witness does not stand wholly discredited;
(c) omissions and contradictions which are insignificant or at very micro level cannot be said to be sufficient to discard the prosecution Case;
(d) minor contradiction between the evidence before the Court and statement recorded by the police under Section 161 are not sufficient to dislodge or discredit the evidence;
(e) conviction on the basis of sole testimony of a single witness can be founded upon if the evidence is found fully creditable or trustworthy.
11. There is no embargo on the appellant court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by Cr.A. No.2571/1997 Page No. 4 acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellant court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. [See Bhagwan Singh v. State of M.P., (2002) 4 SCC 85].
12. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process. It is a compelling reason for interference. These aspects were highlighted by the Apex Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793: AIR 1973 SC 2622, Ramesh Babulal Doshi v. State of Gujrat, (1996) 9 SCC 225: 1996 SCC (Cri) 972, State of Punjab v. Karnail Singh (2003) 11 SCC 271:
2004 SCC (Cri) 135 and many other cases.
13. It is pertinent to mention here that these brothers, complainant Anusuiya Prasad and accused Atrimuni having enimical terms due to partition of agricultural land which is mentioned in detailed in police statement (Ex.- D /1) of Anusuiya Cr.A. No.2571/1997 Page No. 5 Prasad (PW-1), though he willfully denied this fact during the cross examination.
14. Complainant Anusuiya Prasad (PW-1) stated that on 31.07.1996 at 6:00 p.m. when he was weeding his fields, his younger son and Varunendra were grazing cattles in the field of respondent that annoyed him and after some talks respondent Atrimuni given stick belows on his foot. Anusuiya Prasad (PW-1) clarified that Atrimuni given 3 stick blows on his left foot with this exaggeration that one below was also given on his right foot. Therefore, during cross examination Anusuiya Prasad (PW-1) accepted that why this fact related with given below in right foot is not mentioned in his police statement (Ex.- D/1) he cannot explain. This contradiction is of vital importance because, presence of injuries on left foot of Anusuiya Prasad (PW-1) is became controversial.
15. Following chart will explain fatal contradictions between the medical evidence:-
S. Dr. N.K.Jain Dr. Uday Singh Remarks
No. (PW-2) (PW-5)
01 Date of 01.08.1996 02.08.1996 After delay of one
examination day from that of
of Anusuiya incident i.e.
Prasad 31.07.1996
02 Document MLC report Ex.P/2 S-ray report of left Reasons not
X-ray report of left foot Ex.P/5, P/6 assigned why foot Ex- P/3, P/4 second X-ray required?
03 Result Not found any Found fracture Explanation is not
fracture available for
different results
as well as
opinions
04 Opinion Simple Grievous -do-
05 Admission Can be inflicted Normally, cannot Fatal admission of
during cross due to self slipping be inflicted during Dr. Uday Singh examination fight but can be (PW-5) inflicted due to slipping.
Cr.A. No.2571/1997Page No. 6 Therefore, statement of Anusuiya Prasad (PW-1) is not at all supported by medical evidence which is sole ground of acquittal relating to this case of under Section 325 of Indian Penal Code.
16. The evidence of complainant 10 years old son Varunendra (PW-3) does not inspire any confidence as an eyewitness because, looking to his age oath was not administer to him. Secondly, he also stated that stick belows were given to both foots of his father, which is not case of the prosecution. Thirdly, when this suggestion was put forth before the witness that he did not see the incident, he categorically replied that he saw the incident. But, soon after he also admitted that he was grazing cattles, therefore, he did not see the incident. In this sequence he also admitted that his father narrated all the facts of incident to him means, he was not present on the spot.
17. Independent witness Jagna (PW-4) also admitted these facts during cross examination that his share was not given by accused Atrimuni as who looted him therefore, he has no talking terms with Atrimuni since prior to the incident. Jagna (PW-4) did not specified whether blow was given on right or left foot. He also admitted this fact that it was Anusuiya Prasad who escorted him to police station on 2 nd day. Therefore, the evidence of Jagna (PW-4) also does not inspire confidence, because incident occurred on 31.07.1996 while statement (Ex.- D/2) of this witness was recorded by the police after one and half month as mentioned itself in statement (Ex.- D/2). There is no satisfactory explanation of this delay is available on record.
18. In above facts and circumstances, learned trial Court rightly found the evidence of Anusuiya Prasad (PW-1) and his 10 years son Cr.A. No.2571/1997 Page No. 7 Varunendra (PW-2) and independent witness Jagna (PW-4) unreliable that two medical evidence is also not supporting the evidence of Anusuiya Prasad (PW-1) therefore, there is no cause to interference in the judgment rendered by the trial Court keeping in the mind of settled position of law as mentioned above.
19. The appeal preferred by the State against the impugned judgment of acquittal dated 03.09.1997 liable to be and is accordingly dismissed.
Appeal dismissed.
(SUBHASH KAKADE) JUDGE AK/-