Madhya Pradesh High Court
Babu vs The State Of Madhya Pradesh on 19 January, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 Cr.A.No.1273/2008
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 19th OF JANUARY, 2023
CRIMINAL APPEAL No. 1273 of 2008
BETWEEN:-
1. BABU S/O S/O KAHIRAM KORI, AGED
ABOUT 29 YEARS, R/O KAKAGANJ
WARD SAGAR DISTRICT SAGAR
(MADHYA PRADESH)
2. UMA W/O BABULAL KORI, AGED
ABOUT 26 YEARS, R/O KAKAGANJ
WARD SAGAR DISTRICT SAGAR
(MADHYA PRADESH)
3. NANHI BAI W/O KASHIRAM KORI,
AGED ABOUT 65 YEARS, R/O
KAKAGANJ WARD SAGAR DISTRICT
SAGAR (MADHYA PRADESH)
4. BHAGCHANDRA S/O KASHIRAM
KORI, AGED ABOUT 32 YEARS, R/O
KAKAGANJ WARD SAGAR DISTRICT
SAGAR (MADHYA PRADESH)
5. SAVITRI W/O BHAGCHANDRA KORI,
AGED ABOUT 28 YEARS, R/O
KAKAGANJ WARD SAGAR DISTRICT
SAGAR (MADHYA PRADESH)
.....APPELLANTS
(NONE )
AND
THE STATE OF MADHYA PRADESH
THROUGH P.S.MOTI NAGAR DIST.SAGAR
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI K.S.BAGHEL - GOVERNMENT ADVOCATE )
....................................................................................
"Reserved on : 19.12.2023"
"Pronounced on : 19.01.2024"
2 Cr.A.No.1273/2008
This appeal having been heard and reserved for judgment,
coming on for pronouncement this day, the court passed the following:
JUDGMENT
This criminal appeal, under section 374 of CrPC, has been filed against the judgment and sentence dated 06.06.2008 passed by Senior Sessions Judge (Fast Track Court), Sagar in Sessions Trial No.69/2008, by which the appellants have been convicted under section 324/34 of IPC and have been sentenced to undergo the rigorous imprisonment of one year and a fine of Rs.500/- with default imprisonment of one month rigorous imprisonment.
2. The facts necessary for disposal of present appeal in short are that on 07.12.2007 at about 10:00 p.m. the complainant Meena Kori was in her house. Her neighbor Ravi Kori informed that her husband is being assaulted by Babulal Kori and Bhagchand Kori. Accordingly, the complainant rushed to the sport and saw that Babulal Kori and Bhagchand Kori were abusing her husband filthily and were assaulting him by iron angle. At that time, wives of Babulal Kori and Bhagchand Kori also came there along with lathi and assaulted injured Jagdish. They also pelted stones as a result Jagdish sustained multiple injuries. At that time, Nanhi Bai also came there along with lathi and instigated her sons and daughter-in-laws that the injured Jagdish should be killed. On hearing the screams of complainant Meena Kori, Siyarani Bai and Ravi Kori, villagers came on the spot and intervened in the matter. The wife of Babulal Kori and Bhagchand Kori tried to assult her also. However, the complainant took shelter in her house. Thereafter, the appellant 3 Cr.A.No.1273/2008 caused damage to the gates of the house. Accordingly, FIR was lodged and offence under sections 323, 294, 427, 324, 506-B read with section 34 of IPC was registered.
3. Injured Jagdish was sent for medical examination and his x-ray was got done. Spot map (Ex.P.2) was prepared. The appellants were arrested. The statements of witnesses were recorded and police, after completing investigation, filed chargesheet for offence under sections 323, 294, 427, 324, 506-B/34 of IPC.
4. The trial court by order dated 10.03.2008 framed charges under sections 294, 324/34, 506-II and 427 of IPC.
5. The appellants abjured their guilt and pleaded not guilty.
6. The prosecution examined Meena (P.W.1), Jagdish (P.W.2), Virendra Singh Kushwaha (P.W.3), Dr.Sudhir Jain (P.W.4), Dr.Jinesh Diwakar (P.W.5), Nanheveer (P.W.6), Siyarani (P.W.7) and Ravi Shankar (P.W.8). The appellants did not examine any witness in their defence.
7. The trial court by the impugned judgment and sentence has convicted the appellants for the offence, mentioned above.
8. Since none had appeared for the appellants, therefore, this Court has gone through the record of its own and has heard the learned counsel for the State.
9. It is submitted by the State counsel that the trial court has passed a well reasoned judgment, which does not require any interference. The guilt of the appellants was proved by the prosecution beyond reasonable doubt.
10. Heard the learned counsel for the State and perused the record.
11. Dr.Sudhir Jain (P.W.4) had medically examined the injured Jagdish and found following injuries on different parts of his body :-
4 Cr.A.No.1273/2008"1.One lacerated wound of 1/2 x 4 cm in middle of scalp anteriorly fresh bone deep.
2.L-shaped incised wound at nasal bridge each 1 cm x 3 mm, fresh bone deep.
3.Incised wound of 4 x 1/4 cm bone deep in semi lunar below left eye, fresh.
4.Incised wound of 2x1/2 cm x muscle deep, fresh over right angle of mouth horizontal
5.Swelling both hands and forearms
6.Abrasion admeasuring 1 x 1/2 cm on front side of right knee.
Injuries No.1, 5 and 6 were caused by hard and blunt object; whereas injuries No.2, 3 and 4 were caused by hard and sharp object.
The injuries were caused within 6 hours. The MLC report is Ex.P.3.
12. The injured was admitted in the hospital and his admission ticket is Ex.P.5. In cross-examination it was admitted by this witness that at the time of admission, the BP of patient was normal. He also admitted that in his medical report, he has not mentioned that the injuries sustained by the patient were grievous. However, he denied that the injuries sustained by the patient on his head can be caused either by fall or collusion with a stone. He clarified that the injuries sustained by the injured on his head could be caused by lathi?
13. Dr. Jinesh Diwakar (P.W.5) had conducted x-ray of injured Jagdish and submitted his x-ray report Ex.P.7 and P.8, according to which no bone injuries were found. The x-ray plates are Ex.P.9 to Ex.P.13.
5 Cr.A.No.1273/200814. Jagdish (P.W.2) is the injured witness. He has stated that on 07.12.2007 the appellant Babu and Bhagchand came to his shop and asked for a loan of Rs.700/-. Accordingly, he requested them that they may take money in the evening. However, the appellants lodged a report against this witness of teasing their sister Reshma. At about 9-10 p.m. when he was coming to his house, appellant Babulal Kori and Bhagchand Kori met him behind the house of Babulal and Babulal assaulted him by an iron rod, as a result he sustained injury on his head. Bhagchand assaulted him by a knife, as a result he sustained injury near his lips. The appellants Savitri, Uma and Nanhi assaulted him by rod and lathi. Savitri also pelted stone on him, as a result he sustained injury on his teeth. Savitri had also pelted stone on his left hand, as a result he sustained a fracture of his left palm. All the appellants had assaulted him. He had also sustained injury on his thigh. His wife tried to intervene in the matter. The incident was seen by Siyarani and Ravi. His wife lodged the FIR. He was sent to Tili Hospital, Sagar for medical examination. Reshma had sustained an injury by a knife, which appellant Bhagirath was having. In cross-examination he admitted that his house is also situated near the house of appellants. He admitted that about 16 months back, he was released after undergoing the jail sentence in connection with a murder case. He admitted that a report was already lodged against him for teasing the sister of appellants. The police had come to his house in connection with the said report. The police did not interrogate him in respect of the incident, which took place with him. Since he was not medically fit, therefore, he did not inform the police about the demand of money by the appellants in his police statement (Ex.D.2). He admitted that on the report of appellants, an 6 Cr.A.No.1273/2008 offence under section 307 of IPC is pending against him for making an attempt to kill Reshma, Babu (appellant) and Nanhi Bai (appellant). He also admitted that he had not informed the police in his police statement that Bhagchand had caused an injury by knife but explained that because of injuries, his mental condition was not good. He also admitted that he had informed the police that Babulal had assaulted him by an iron rod but could not explain why it is not mentioned in his police statement (Ex.D.2). He also claimed that he had informed the police that Savitri, Uma and Nanhi Bai had assaulted him by Danda and rod but could not explain as to why this fact is not mentioned in his police statement (Ex.D.2). He also claimed that Reshma had sustained injury by a knife, which was being carried by Bhagchand but could not explain as to why the said fact is not mentioned in his police statement (Ex.D.2). The neighbourers had not assembled at the place of incident. He fell unconscious after he was taken away by the police. He denied that a knife was seized from his possession. He denied that in order to save himself, a false cross-FIR has been lodged by him.
15. Meena Bai (P.W.1) stated that she was in her house. She was informed by Ravi that Babulal and his family members are assaulting her husband, therefore, she went towards the house of Babulal. She saw that Babulal, Bhagchand, mother Nanhi Bai and wife of Babulal were assaulting Jagdish by lathi and iron rod. Her husband had sustained injuries on face, head and hands. His teeth were also broken. Accused persons also tried to assault her then she came running to her house and locked the door. The door and hut was damaged by the appellants. FIR was lodged by this witness and the spot map was also prepared. In cross-examination she admitted that 7 Cr.A.No.1273/2008 her house is approximately 1/2 furlong from the house of appellant. The incident took place at about 10:00 in the night. At the time of incident she was in her house. She further admitted that her husband has come out of jail after undergoing jail sentence for committing murder. When she came near the house of Ganesh, she saw that her husband was lying there. However, she did not see that Babulal, Reshma and Nanhi Bai were also lying there. She admitted that Jagdish is facing trial for assaulting Reshma and Babulal. She admitted that Reshma, Babulal and Nanhi Bai had also sustained injuries. However, she denied that appellants remained hospitalized for one and half months. She was confronted with certain omissions in her statement under section 161 CrPC. She further stated that her husband might have assaulted Babulal and Nanhi Bai because they were assaulting him.
16. Virendra Singh (P.W.3) is the scribe of the FIR. Nanheveer (P.W.6) is the Investigating Officer, who had prepared the spot map (Ex.P.2) and had recorded the statements of witnesses. The accused- appellants were arrested by him. He admitted that an offence under section 307 of IPC was registered against injured Jagdish and the said trial is pending against him.
17. Siyarani (P.W.7) has not stated anything about the incident. Ravishankar (P.W.8) has turned hostile.
18. Thus, it is clear that the entire case is based on the sole testimony of Jagdish (P.W.2) and to a large extent on the testimony of Meena (P.W.1) also. Meena (P.W.1) is wife of Jagdish (P.W.2). Both the witnesses have admitted that appellants have also sustained injuries. They have also admitted that Jagdish is facing trial for offence under section 307 of IPC for assaulting Babulal, Reshma and 8 Cr.A.No.1273/2008 Nanhi Bai. The injuries sustained by the appellants have not been explained by the prosecution. Thus, it is clear that the prosecution has suppressed the very genesis of the offence. The incident took place near the house of appellants. Why injured Jagdish (P.W.2) went towards the house of appellants has not been explained. Thus, in all probabilities complainant Jagdish (P.W.2) appears to be an aggressive party. Furthermore, injured Jagdish (P.W.2) has a criminal history and he was recently released after undergoing the jail sentence for committing murder.
19. The Supreme Court in the case of Bhagwan Sahai and another v. State of Rajasthan reported in (2016) 13 SCC 171 has held as under :-
"8. The aforesaid view of the High Court is devoid of legal merits. Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants. The appellants can legitimately claim right to use force once they saw their parents being assaulted and when actually it has been shown that due to such assault and injury their father subsequently died. In the given facts, adverse inference must be drawn against the prosecution for not offering any explanation much less a plausible one. Drawing of such adverse inference is given a go-by in the case of free fight mainly because the occurrence in that case may take place at different spots and in such a manner that a witness may not reasonably be expected to see and therefore explain the injuries sustained by the defence party. This is not the factual situation in the present case."9 Cr.A.No.1273/2008
20. Furthermore, Meena (P.W.1) in her cross-examination has stated that when she reached on the spot, she saw that injured Jagdish was lying on the ground; whereas in the examination-in- chief she has claimed that when she rushed towards the place of incident then she saw that deceased was being assaulted by the appellants.
21. Considering the totality of the facts and circumstances of the case where prosecution has failed to prove beyond reasonable doubt that appellants were the aggressors and injuries sustained by some of the appellants have not been explained and this Court is of considered opinion that the very genesis of the incident has been suppressed by the prosecution, then it would not be safe for this Court to upheld the conviction of the appellants for the offence under section 324/34 of IPC.
22. Accordingly, they are acquitted for the charges framed against them. The judgment and sentence dated 06.06.2008 passed by Senior Sessions Judge (Fast Track Court), Sagar in Sessions Trial No.69/2008 is hereby set aside.
23. All the appellants are on bail. Their bail bonds and surety bonds are hereby discharged. They are no more required in the present case.
24. Office is directed to send a copy of this judgment along with the record of the trial court for necessary information and compliance.
25. The appeal succeeds and is hereby allowed.
(G.S.AHLUWALIA) JUDGE TG/-
TRUPTI GUNJAL 2024.01.19 19:01:38 +05'30'