Madhya Pradesh High Court
The State Of M.P. vs Shyam Sunder & Ors on 4 July, 2012
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.
Criminal Appeal No.645/1998
State of Madhya Pradesh
VERSUS
Shyam Sunder & Others
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Shri G.S.Thakur, Panel Lawyer for the State/appellant.
Shri D.S.Chouhan, counsel for the respondents.
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J U D G M E N T
(Delivered on the 4th day of July, 2012) The State has preferred this appeal against the judgment dated 8.11.1997 passed by learned JMFC, Sidhi (Shri Tarkeshwar Singh) in criminal case No.150/1996, whereby the respondents were acquitted from the charges of offence punishable under sections 447, 427 of IPC.
2. Prosecution's case, in short, is that, the complainant Bina Singh (P.W.2) had submitted an FIR, Ex.P/1 on 9.12.1995 to Police Station Rampur Naikin, District Sidhi that in the previous night, she was sleeping in her new house at Shankarpur with her son Amar Singh (P.W.1), at about 12 p.m. in the night, the respondents came to the spot by jeep bearing registration No.MP17-A-3067 and :: 2 ::
Criminal Appeal No.645 of 1998 abused them with obscene words and they told each other to knock down the house of the complainant and thereafter they knocked down the house and therefore, they caused a damage of Rs.20,000/- to the complainant. On hue and cry made by the complainant and her son, some other witnesses namely Ramesh Prasad (P.W.3), Halkelal, Rajesh Singh, Chhotak etc. came to the spot. They saw the incident. FIR was registered by the police station on 7.1.1996. Document relating to registration of FIR was Ex.P/2. Due investigation was initiated. Assistant Sub Inspector Shri R.K.Sharma went to the spot on 21.12.1995 and prepared a memo of damage, Ex.P/4. Again on 7.1.1996, Shri Sharma prepared spot map, Ex.P/3. After due investigation, a charge-sheet was filed before the competent Magistrate.
3. The respondents abjured their guilt. They took a plea that they were falsely implicated in the matter due to a civil dispute. In confirmation to their defence, Janardhan Prasad (D.W.1) and Ram Prasad (D.W.2) were examined as defence witnesses.
4. Learned JMFC, Sidhi, after considering the evidence adduced by the parties, acquitted the respondents from the charges of offence punishable under section 447 and 427 of IPC.
5. I have heard the learned counsel for the parties.
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Criminal Appeal No.645 of 1998
6. Learned Panel Lawyer has submitted that the respondents knocked down the house of the complainant and therefore, they caused a damage of Rs.20,000/-. House was constructed in a premise belonging to the complainant Bina Singh and therefore, the respondents entered in the premises which was in the possession of the complainant. Therefore, offence punishable under sections 447 and 427 of IPC are apparently constituted. However, learned Magistrate have erred in acquitting the respondents.
7. Learned counsel for the respondents submits that story told by the witnesses appears to be concocted. Some of the witnesses have accepted that there was no roof in that house and therefore, it was not possible for either Bina Singh or Amar Singh to stay in that house in the night of winter. Under such circumstances, they were not the eye witnesses and none else confirmed that such house was knocked by the respondents and therefore, acquittal directed by the trial Court appears to be correct.
8. After considering the submissions made by learned counsel for the parties, it is to be seen that as to whether the acquittal directed by the trial Court is correct or not and if the respondents are convicted then, what would be the sentence passed against the respondents.
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Criminal Appeal No.645 of 1998
9. Amar Singh (P.W.1), Bina Singh (P.W.2), Ramesh Prasad (P.W.3) and Bahadur (P.W.4) were examined as eye witnesses. Amar Singh and Bina Singh have stated that the respondents Bhaskar, Virendra and Bijendra came with 10-12 persons and knocked down the house with help of Kudali etc. Those 10-12 persons could not be identified by either Amar Singh or Bina Singh. Amar Singh told about only 3 persons Bhaskar, Virendra and Bijendra, whereas Bina Singh added name of the respondent Sudhakar also. It is no where established as to how the other respondents could be identified thereafter. Incident took place in the dark night and therefore, the respondents who were not known to either witness Bina Singh or Amar Singh could not be identified without any basis. In the FIR, names of so many persons were mentioned. As per document Ex.P/1, FIR was prepared on 9.12.1995 but, registration of that FIR was done on 7.1.1996 by the document, Ex.P/2. There is no entry on the FIR, Ex.P/1 that on which date and time it was given to the Police Station. However, looking to the document, Ex.P/4, memo of loss, it appears that ASI Shri R.K.Sharma (P.W.5) visited the spot on 21.12.1995 to assess the loss and therefore, it appears that the matter was kept in enquiry and thereafter, case was registered on 7.1.1996. However, it is no where established that the written FIR, :: 5 ::
Criminal Appeal No.645 of 1998 Ex.P/2 was submitted to the SHO, Police Station Rampur Naikin on the next day morning. Since, names of all the respondents are mentioned in that FIR, whereas 10-12 persons out of those respondents were not known to the complainant then, it appears that FIR was prepared with help of guidance and conversation with some other persons. Under such circumstances, it cannot be said that FIR was timely lodged. It could be a concocted document. Under such circumstances, there is no evidence against the respondents except Bhaskar, Virendra, Bijendra and Sudhakar that they participated in the crime.
10. As far as the case of respondent Sudhakar is concerned, his name was mentioned by the complainant Bina Singh in her statement but, name of respondent Sudhakar was not shown by the witness Amar Singh, son of the complainant. If Sudhakar was identified then, there was no possibility that he could be seen by the complainant Bina Singh but, Amar Singh could not see him at the spot. Under such circumstances, the respondent Sudhakar cannot be implicated in the crime according to the evidence of these witnesses.
11. Actually evidence given by Amar Singh and Bina Singh appears to be unnatural. Amar Singh has accepted in Para 3 of his cross-examination that in that constructed :: 6 ::
Criminal Appeal No.645 of 1998 house only one Ausari (Verandah) was constructed. There was no room constructed in that house. He has also accepted that space of door was created there but, frame of the door was lying nearby and it was not fitted. Similarly, Ramesh Prasad (P.W.3) has accepted in para 3 of his statement that at the spot only walls were constructed. There was no roof on any portion. Under such circumstances, where it is clear that the complainant and her son had an appropriate house in the village Murtala, it was not possible for them to stay in that incomplete house in the night. Learned Magistrate has rightly observed that the incident took place in the month of December and therefore, in such nights of winter, it was not possible for anyone to stay in the night at an open place. Similarly, it would be apparent that Amar Singh and Bina Singh have accepted that the incident took place in the mid-night. They did not say anything about the source of light. In the spot map, Ex.P/3, no source of light is shown and therefore, it was not possible for either the complainant Bina Singh or the witness Amar Singh to identify the respondents. Under such circumstances, it appears that Amar Singh and Bina Singh were not present at the spot at the time of crime. They cooked a story and made themselves to be eye witnesses.
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Criminal Appeal No.645 of 1998
12. It is stated by the complainant Bina Singh and her son Amar Singh that they went to the village Murtala and brought Ram Prasad and Rajesh Singh from the village. It is no where clear by which vehicle they went to the village Murtala which was one km away from the spot. However, one Ramesh Prasad who was examined for the prosecution, did not confirm the story of the complainant. Except the respondent Bijendra, he did not tell the name of anyone. Ramesh Prasad partly turned hostile. It is accepted that Ramesh Prasad was brother of the complainant Bina Singh and Rajesh was nephew of the complainant Bina Singh.
13. If it is presumed that the complainant Bina Singh and Amar Singh were not at the spot during the incident then, there was no possibility for them to bring the witness Ramesh Prasad and Rajesh, therefore, only one witness Bahadur remains to tell about the incident. Bahadur (P.W.4) has submitted that he heard some sound of breaking of walls but, he did not see anyone at the spot because, in the night, he did not visit to the spot, due to fear. He was declared hostile but, he did not support the evidence of the prosecution. Bahadur was the only person, who was living nearby that alleged constructed house. Except Bahadur Singh, no ones presence was shown by the complainant at the time of incident. Under such circumstances, there is no :: 8 ::
Criminal Appeal No.645 of 1998 substantial evidence to show that the respondents were the persons who knocked down that unconstructed Ausari.
14. Defence witness Janardhan Prasad (D.W.1) had stated that there was a status quo granted by the civil Court relating to that house and therefore, the complainant could not construct the house in that land. He has also submitted that the complainant Bina Singh had already lodged one case of theft against the respondent Bijendra. When he went to the spot, he found no change at the spot and therefore, he claimed that a total false case was created by the complainant. Testimony of that defence witness is not believable in toto. However, looking to the document, Ex.P/4 memo of loss, it appears that testimony of defence witness Janardhan Prasad may be correct to some extent. In document, Ex.P/4, it was mentioned by ASI Shri Sharma that house was knocked down on 8.12.1995 and a damage of Rs......./- was caused but, space of amount is vacant in that memo. No amount is filled in that memo. If ASI Shri Sharma had gone to the spot for assessment of the loss then, what was the problem to him in not making the assessment and not to write down the figure of damage in the memo, Ex.P/4. His such a lapse indicates that either there was no damage caused to the house or he was not sure that which portion was constructed in the house and which portion was :: 9 ::
Criminal Appeal No.645 of 1998 knocked down because walls were found standing at the spot.
15. However, a civil matter is pending between the parties and therefore, nothing should be observed without any evidence. Prosecution could not prove that the complainant Bina Singh or her son Amar Singh were present at the spot at the time of the incident and there is no any eye witness to establish that the respondents were the persons who entered in the field and knocked down the house. Under such circumstances, the respondents cannot be convicted for offence punishable under section 447 or 427 of IPC.
16. Learned JMFC has rightly acquitted the respondents from the charges of offence punishable under sections 447 or 427 of IPC. Under such circumstances, appeal filed by the State cannot be accepted and consequently, it is dismissed by confirming the judgment passed by learned JMFC, Sidhi.
17. Presence of the respondents is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged.
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Criminal Appeal No.645 of 1998
18. Copy of the judgment be sent to the trial Court with its record for information.
(N.K.GUPTA) JUDGE 4/7/2012 Pushpendra :: 11 ::
Criminal Appeal No.645 of 1998
16. Defence witness Janardhan Prasad (D.W.1) has stated that there was a status quo granted by the civil Court relating to that house and therefore,the complainant could not construct that house in that land. He has also submitted that the complainant Bina Singh had already lodged one case of theft against the respondent Bijendra.
When he went to the spot he found no change at the spot and therefore, he claimed that a total false case was created by the complainant. Nearby that alleged constructed house. Except Bahadur, no ones presence was shown by the complainant at the time of incident. Under such circumstances, there is no substantial evidence to show that the respondents were the persons who knocked down that unconstructed Ausari. Defence witness Janardhan Prasad (D.W.1) has stated that there was a status quo granted by the civil Court relating to that house and therefore the complainant could not construct that house in that land. He has also submitted that the complainant Bina had already lodged one case of theft against the respondent Bijendra. When he went to the spot on the next day. He found no change at the spot.
17. Defence witness Janardhan Prasad (D.W.1) has stated that there was a status quo granted by the civil Court :: 12 ::
Criminal Appeal No.645 of 1998 relating to that house and therefore,the complainant could not construct that house in that land. He has also submitted that the complainant Bina Singh had already lodged one case of theft against the respondent Bijendra. When he went to the spot he found no change at the spot and therefore, he claimed that a total false case was created by the complainant