Madhya Pradesh High Court
Munshi & Ors. vs The State Of M.P on 12 September, 2012
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Shri Justice N.K.Gupta,J.
CRIMINAL APPEAL NO.2270 OF 1997
Munshi & others.
Vs.
State of Madhya Pradesh.
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Shri Nitin Jain, Advocate for the appellants.
Shri Ajay Tamrakar,, Panel Lawyer for the respondent/
State.
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JUDGMENT
(Delivered on the 12th day of September, 2012) This criminal appeal is filed by the appellants being aggrieved by the judgment dated 4/10/1997 passed by the 2nd Additional Sessions Judge, Betul in ST No.83/1996, whereby the appellants were convicted and sentenced as under:-
Conviction U/S Sentence Fine Default
(IPC) (Rupees) sentence
147 1 year's RI -- --
148 2 years' RI -- --
323/149 6 months' RI 500/- SI for 2 months
each
325/149 3 years' RI 2000/- SI for 4 months
each
All the sentences were directed to run concurrently.
2. The prosecution's case, in short, is that on 4.6.1995 Daulat Singh (PW-4) Nakedar of the Forest 2 Cri. A. No.2270/1997 Department posted at Village Khamalpur Outpost went to extinguish the fire which broke out in the forest. He came back to the Outpost at about 7-7:30 PM alongwith his companion Dinanath Chouhan (PW-9). Thereafter they were preparing the accounts related to tendupatta in the building of the Outpost. In the meantime all the appellants came to the Outpost armed with sticks. They said something in their local language and thereafter they assaulted the complainant Daulat Singh with sticks. The complainant Daulat Singh sustained many injuries. The witness Dinanath Chouhan ran away and he succeeded in hiding himself from the culprits. After the incident, Dinanath Chouhan came back and took the complainant Daulat Singh to the concerned Range Officer Ranipur on motorcycle. Thereafter Daulat Singh lodged an FIR Ex.P-14A on 5.6.1995 at about 9:00 AM in the morning. He was referred for his medico legal examination. Dr. K.S.Ahirwar (PW-5) examined the victim Daulat Singh at Primary Health Centre Dongari and gave his report Ex.P-16. He found various injuries caused by hard & blunt object and hard & rough object at nine places of the body of the victim Daulat Singh specifically on head, forehead, left jaw, scapula region, chest, hands, right knee and left leg. The victim was referred for his X-ray examination. Dr. P.K.Tiwari (PW-8) after taking the X-ray Ex.P-18 gave his report Ex.P-17. He found fractures on 5th and 6th right ribs of the victim Daulat Singh. After due 3 Cri. A. No.2270/1997 investigation, a charge sheet was filed before the Judicial Magistrate First Class, Betul, who committed the case to the Sessions Court, Betul and ultimately it was transferred to the 2nd Additional Sessions Judge, Betul.
3. The appellants-accused abjured their guilt. They did not take any specific plea in the matter, but they have stated that there was a mob of 50-100 persons agitating against the victim Daulat Singh, because Daulat Singh teased a woman of the community of that mob, and therefore unknown persons had assaulted the victim Daulat Singh. The incident took place in the night and Daulat Singh could not identify the actual culprits, and therefore the appellants were falsely implicated in the matter. In defence Head Constable Shamshul Husain (DW-1) was examined to prove the report Ex.D-2.
4. The learned second Additional Sessions Judge, Betul after considering the evidence adduced by the parties convicted and sentenced the appellants as mentioned above.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the appellants has submitted that the appellants are convicted on the basis of suspicion. There was no cogent evidence against them. The learned Additional Sessions Judge convicted the appellants on his own whim. The eye-witness Dinanath Chouhan (PW-9) has accepted that it was very big dark in the night 4 Cri. A. No.2270/1997 when the incident took place and 50-100 tribal persons collected to assault the victim Daulat Singh. They assaulted the victim Daulat Singh but did not assault the Forest Employee Dinanath Chouhan, and therefore that assault was a personal matter of the victim Daulat Singh. He was not being assaulted due to his public duty, therefore the trial Court has wrongly convicted the appellants for commission of offence punishable under Section 333 or 332 of IPC. Similarly, it is nowhere established that the appellants were in the unlawful assembly, and therefore they could not be convicted for the offence under Section 147 or 148 of IPC. Under such circumstances, it is prayed that the appellants may be acquitted. In the alternate, it is submitted that the appellants have faced the trial and appeal for many years, and therefore they may not be sent to the jail again.
7. On the other hand, the learned counsel appearing on behalf of the State has supported the impugned judgment and has submitted that the Court below has not committed any illegality in convicting and sentencing the appellants-accused, therefore no interference is warranted from the side of this Court.
8. After considering the submissions made by the learned counsel for the parties, it is to be seen as to whether the appeal filed by the appellants can be allowed 5 Cri. A. No.2270/1997 on merits? And whether the sentence directed against the appellants can be reduced?
9. In the present case Dr. K.S.Ahirwar (PW-5) has proved the many injuries caused to the complainant Daulat Singh (PW-4). Similarly, Dr. P.K.Tiwari (PW-8) has proved that the complainant Daulat Singh sustained fractures of 5th and 6th right ribs. Under such circumstances, it is apparent that that the victim Daulat Singh was being assaulted by many persons and he sustained grave injuries. However the complainant Daulat Singh (PW-4) and Dinanath Chouhan (PW-9) were the eye-witnesses in the case. Daulat Singh has stated that when they came back after extinguishing the fire in the forest, they were cooking their food. Dinanath Chouhan went to take some water from the tap. The appellants were sitting near the tap. Dinanath Chouhan asked them why they did not participate in extinguishing the fire in the forest on their own. They were taking forest produce for their use and sale, and therefore due to non- cooperation, he would arrest them in future if they take any more forest produce from the forest. Then the appellants retorted that the forest was not the property of Dinanath Chouhan. Daulat Singh tried to intervene in the matter, and therefore the appellant Babulal snatched the victim Daulat Singh and thereafter all the appellants assaulted him with sticks. On the other hand, Dinanath Chouhan did not corroborate the evidence given by the complainant Daulat 6 Cri. A. No.2270/1997 Singh. He has stated that after extinguishing the fire, he went to the Outpost Khamalpur and thereafter he went to his hut at about 8:30 PM. He had heard the shouts of the complainant Daulat Singh, and therefore he went to the spot. He found that 100-150 tribal persons were gathered, and they were talking in their language. They assaulted the complainant Daulat Singh and due to the darkness in the night, he could not see the actual culprits who assaulted the victim Daulat Singh. He has admitted in the cross examination that he was not aware about that tribal language, and therefore he could not understand the talk that took place between the tribals and the complainant Daulat Singh. He has categorically mentioned that there was no arrangement of light inside or outside of the Outpost building.
10. The complainant Daulat Singh had lodged an FIR Ex.P-14A on the next day morning at about 9:00 AM which corroborates his testimony. However, there is a lot of contradictions between the version given by the complainant Daulat Singh and the version given in the FIR. In the FIR it was mentioned that the victim Daulat Singh and his companion were correcting the accounts of the tendupatta in the building of the Outpost and suddenly the appellants came inside the building and assaulted the complainant Daulat Singh. It is pertinent to note that the victim Daulat Singh was taken to his higher authorities soon 7 Cri. A. No.2270/1997 after the incident and he had lodged an FIR in early morning of the next day, but he got at least 9 hours time to cook a story against the appellants. Under such circumstances, it is possible that the names of the appellants may be mentioned in the FIR due to enmity. The Head Constable Shamshul Husain (DW-1) has proved the FIR Ex.D-2 which was lodged on 5.6.1995 by one Ramesh about the behaviour of the complainant Daulat Singh. However, in the present case, the incident took place on 4.6.1995 and therefore if any FIR was lodged after the incident, then it has no value in the case.
11. Dinanath Chouhan was a companion of the complainant Daulat Singh at the post and he did not accept that he was threatened by the appellants. Daulat Singh could not say that there was any arrangement of light inside or outside of the Outpost building. Under such circumstances, if Dinanath Chouhan accepts that 100-150 tribal persons gathered at the spot and some persons out of them assaulted the victim Daulat Singh, then his version cannot be brushed aside. The possibility cannot be ruled out that since the complainant Daulat Singh could not identify the actual culprits due to darkness and since the appellants did not cooperate with him in the morning in extinguishing the fire, then it was easy for him to name the appellants for the assault caused to him. If the incident took place in the night and there was no possibility to identify the actual 8 Cri. A. No.2270/1997 culprits, then the evidence given by the victim Daulat Singh cannot be accepted. Goverdhan (PW-1) was examined as a witness. He has stated that Daulat Singh informed him the next day that the villagers of the village Khamalpur had assaulted him, but no specific name was told by the victim Daulat Singh. Though the witness Goverdhan (PW-1) was declared hostile, but looking to the evidence given by Dinanath Chouhan, the version given by Goverdhan can be accepted and it appears that before lodging the FIR, Daulat Singh did not know as to who assaulted him in the night out of those 100-150 tribal persons.
12. Daulat Singh could not narrate in the FIR that which of the appellants specifically assaulted at which portion of his body. He tried to mention the name of Sahablal, Babulal and Bisen that Babulal snatched him and Sahablal and Bisen assaulted him on specific parts of the body, but an omission was recorded by the defence counsel with the FIR Ex.P-14A and his case diary statement Ex.D-1 that the appellants Bisen, Sahablal and Babulal assaulted him in such a manner. Looking to the omnibus allegations of the victim Daulat Singh in the FIR against the appellants, it appears that since he could not see the actual culprits, and therefore he could not tell about specific assault done by a particular appellant. Under such circumstances, the testimony of the victim Daulat Singh cannot be accepted for identification of the appellants in the dark night, and 9 Cri. A. No.2270/1997 therefore it is not proved beyond doubt that the appellants were the persons who assaulted the victim Daulat Singh.
13. When a mob of 100-150 tribals was gathered and no specific overt-act of the appellants is proved beyond doubt, then it cannot be said that they participated in the unlawful assembly. Under such circumstances, they cannot be convicted for commission of offence punishable under Section 147 or 148 of IPC. Therefore, they cannot be convicted for any offence with the help of Section 149 of IPC.
14. Since the trial Court has not convicted the appellants for commission of offence punishable under Section 332 and 333, there is no need to discuss on the point whether the present appellants had assaulted the complainant Daulat Singh when he was working as a public servant at the time of the incident.
15. As discussed above that it is not proved beyond reasonable doubt that the appellants were the persons, who assaulted the victim Daulat Singh, and therefore they cannot be convicted for the offence punishable under Section 325 or 323 of IPC also. It is true that the victim sustained many injuries and two fractures, but it is not established beyond doubt that the appellants were responsible for the many injuries and the two fractures. Under such circumstances, if any doubt is created in the prosecution evidence, then certainly the benefit of the 10 Cri. A. No.2270/1997 doubt is to be given to the appellants. In the present case, it is nowhere proved beyond doubt that the appellants were the persons who assaulted the victim Daulat Singh. It is nowhere proved beyond doubt that they participated in the unlawful assembly. Under such circumstances, the appellants cannot be convicted for the offence punishable under Sections 147, 148, 325/149 or 323/149 of IPC or for any lesser offence of the similar nature.
16. On the basis of the aforesaid discussion, the appeal of the present appellants appears to be acceptable. Consequently, it is hereby allowed. The conviction and sentence directed by the trial Court vide judgment dated 4.10.1997 for the offence punishable under Sections 147, 148, 323/149, 325/149 of IPC are hereby set aside. They are acquitted from all the charges appended against them. They would be entitled to get the fine amount back if they have deposited the same before the trial Court.
17. The appellants are on bail. Their presence is no more required before this Court, and therefore it is directed that their bail bonds shall stand discharged.
18. A copy of this judgment be sent to the trial Court with its record for information and compliance.
(N.K.Gupta) Judge 12/09/2012 Ansari