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The Indian Penal Code, 1860
Section 448 in The Indian Penal Code, 1860
Section 341 in The Indian Penal Code, 1860
Section 324 in The Indian Penal Code, 1860
Section 323 in The Indian Penal Code, 1860

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Madhya Pradesh High Court
The State Of M.P. vs Girjesh Sharma & Ors. on 1 August, 2012

1

HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR

SB: HON. SHRI JUSTICE N.K.GUPTA.

CRIMINAL APPEAL NO.1566 OF 1998

State of Madhya Pradesh.

Vs.

Girjesh Sharma & others.

--------------------------------------------------------------------------------------- Shri Ajay Tamrakar, Public Prosecutor for the appellant/State.

Shri S.K.Dixit, Advocate for the respondents. --------------------------------------------------------------------------------------- JUDGMENT

(Delivered on the 1st day of August, 2012) The State has preferred this appeal against the judgment dated 20.3.1996 passed by the Chief Judicial Magistrate, Shahdol in Criminal Case No.285/1995 by which the respondents were acquitted from the charges of offence punishable under Sections 341, 294, 506-B, 448, 324 and 323 of IPC.

2. The prosecution case, in short, is that on 17.4.1995 at about 11:00 PM in the night the complainant Satyanarayan Pandey was coming back from the house of Constable Parmeshwardeen, who was residing in the police lines Shahdol. The complainant was accompanied by his wife. Near a public garden in the police lines, the complainant went to answer the call of 2

nature and his wife was waiting for him on the road. When he was coming back, the respondents met him at the spot and thereafter they assaulted him in a bad manner. The complainant sustained so many injuries on his body. He was assaulted by the respondent Girjesh Sharma with the help of a knife, whereas other respondents had assaulted him by sticks. On his shouting, two constables of traffic police and his wife came to the spot, and therefore the respondents ran away after giving him a threat that they would see him in future. The complainant had lodged an FIR soon after the incident at Police Station Kotwali, Shahdol. He was directed for his medico legal examination and treatment. Dr.S.K.Gupta (PW-4) found three incised wounds to him. One on his neck and remaining two were on his left arm. Also he found that the victim sustained some blunt injuries on his back and left leg. After due investigation, a charge sheet was filed before the competent Court.

3. The respondents-accused abjured their guilt. They took a specific plea that there was a dispute between the complainant and the respondents in past, and therefore the respondents were falsely implicated in the matter. To prove their alibi, Ravi Shankar Sharma 3

(DW-1), Purshottam (DW-2) etc. were examined in the defence.

4. The learned Chief Judicial Magistrate, Shahdol after considering the evidence of both the parties acquitted the respondents from the aforesaid charges.

5. I have heard the learned counsel for the parties.

6. Learned counsel for the appellant-State has submitted that the offence was very well proved by the prosecution evidence and alibi established by the defence witnesses was not confirmative, therefore acquittal directed by the trial Court appears to be incorrect. Consequently, the respondents be convicted for the offences and they be punished in an appropriate manner.

7. On the other hand, learned counsel for the respondents has submitted that the story cooked by the complainant is not acceptable. He changed his entire version in his statement before the Court. He got the FIR lodged with the help of one Constable Parmeshwardeen. For lodging the FIR, he went to the bungalow of SP concerned and thereafter his FIR was lodged. There was a dispute between the parties about a property and respondent Girjesh Sharma won the civil case from the Court of Second Additional District Judge Shahdol and 4

since a civil litigation was pending for the dispute of the property, there was no need to the respondents to assault the victim in such a manner. Therefore, the acquittal directed by the trial Court appears to be correct.

8. After considering the submissions made by learned counsel for the parties and looking to the evidence adduced by the parties, it is to be considered that whether the acquittal directed by the trial Court is not correct? If yes, then what would be the appropriate sentence imposed upon the respondents.

9. Satyanarayan Pandey (PW-1) and Malti Pandey (PW-2) were examined as eye-witnesses. They have stated that Satyanarayan Pandey went to the house of Parmeshwardeen and when he was coming back, he went to answer the call of nature, near a hand pump. When he was coming back, the respondents assaulted him in such a manner. In support of his contention, he referred that he sustained some injuries duly proved by Dr. S.K.Gupta (PW-4). He had lodged an FIR Ex.P-1 soon after the incident, and therefore it was submitted that the testimony of the complainant Satyanarayan Pandey must have been believed. However, if the cross examination of Malti Pandey (PW-2) is perused, then it would be apparent that she could not see the incident. When her 5

husband came back, then he informed that he was being assaulted by the respondents, and therefore the testimony of witness Malti Pandey depends upon the version given by the complainant Satyanarayan Pandey. The story told by the complainant Satyanarayan Pandey appears to be unnatural. If he visited to the house of Constable Parmeshwardeen, then he could answer the call of nature in his house and there was no need to visit in a public garden to answer the call of nature. Secondly, if the spot map Ex.P-2 is perused, then no hand pump or any source of water is shown in that map which indicates that the spot of the incident is not shown in the map.

10. Similarly, there was a lot of contradictions between the testimony of the complainant Satyanarayan Pandey and his previous statement. The complainant Satyanarayan Pandey has stated that the respondents ran away from the spot because they saw the traffic constables coming to the spot, but no such traffic constable is examined before the trial Court. On the contrary Malti Pandey (PW-2) has stated that initially the traffic constables were asking her as to why she was standing beside the road and thereafter they went away. It is nowhere stated by the witness Malti Pandey that those traffic constables intervened in the matter or they 6

went to the spot after hearing the hue and cry of the complainant. Similarly, she has stated that Satyanarayan Pandey told her about the incident when he came back, which indicates that Malti Pandey herself did not hear the hue and cry made by the complainant Satyanarayan Pandey. If Satyanarayan Pandey was not much away from the witness Malti Pandey, then he should have been made a hue and cry at the time of assault which could be heard by Malti, but Malti Pandey even could not hear such hue and cry, and therefore she did not visit to the spot. She could know about the incident when the complainant told her about the incident. Under such circumstances, it is possible that the story cooked by the complainant with the help of his wife, but story appears to be unnatural.

11. There was a dispute between the parties about a property. The complainant Satyanarayan Pandey has stated that he took a sum of Rs.14,000/- from respondent Girjesh Sharma and Girjesh Sharma was demanding a sum of Rs.28,000/- within a month, therefore he occupied the property, whereas the case of the respondents was that it was a sale of the property and no loan has been granted to the complainant and ultimately the respondents won the case of that property from the Court of Second Additional District Judge, Shahdol in Civil Suit 7

No.2A/2003. Under such circumstances, it was possible that the complainant could have lodged such type of FIR only to create a pressure upon the respondents. The complainant could not tell about the assault done by the respondent Sita, but name of Sita was implicated in the FIR as well as in the criminal case. The conduct of the complainant Satyanarayan Pandey indicates that he was ready to harass the respondents so that a pressure could be created to get the property back.

12. The complainant Satyanarayan Pandey could not tell that what was the arrangement of the light at the place where he went to answer the call of nature and how he could identify the culprits. Similarly, visit of the complainant to the house of Constable Parmeshwardeen was not in the knowledge of the respondents. It was a casual visit, and therefore how could they reach to the spot. How could they know that during that visit the complainant will go to answer the call of nature. If the respondents would have tried to start quarrel on the road, then it could be understood that they were intended to quarrel but it was not possible for anyone to get such knowledge that the complainant would go to answer the call of nature at lonely place. Therefore, it was not possible for the respondents to reach the spot and to 8

assault the complainant. On the contrary, they were in the possession of the property and there was no need to the respondents to assault the complainant.

13. Under such circumstances, the testimony of the victim Satyanarayan Pandey is not at all trustworthy. It is possible that he sustained some superficial injuries due to any other reason, therefore he lodged a false FIR against the respondents with the help of the Constable Parmeshwardeen. Though the FIR was lodged within half an hour of the incident, but it is accepted by the complainant that before lodging the report, he went to the bungalow of SP concerned with the help of Constable Parmeshwardeen, and therefore it is also possible that at the time of lodging the FIR, time of the incident was fixed by the complainant by his own, otherwise if he went to the bungalow of SP concerned and thereafter he went to the police station, then he could not reach to the police station within half an hour of the incident. Under such circumstances, it is possible that the FIR was lodged in ante-timed. In such circumstances, the testimony of the complainant is not at all believable. It is nowhere established that the respondents had assaulted him or respondents were the persons who detained him or abused him or threatened him, and therefore the trial 9

Court has rightly acquitted the respondents from the charges of offence punishable under Sections 324, 323, 341, 294, 506-B of IPC.

14. So far as the offence under Section 448 of IPC is concerned, in the alleged incident, there was no house tress-pass done by the respondents. The complainant tried to connect two different incidents in one FIR. If the respondents had taken possession of the property, then date of that act must have been shown in the FIR, but it is nowhere shown in the FIR that on what event the respondents took the possession of the property or they put the lock on the main door of the house. In such circumstances, with the present FIR the trial Court could not take any cognizance for the offence under Section 448 of IPC, and therefore the respondents could not be convicted for an offence which was not done at the time of the present incident. The trial Court has rightly acquitted the respondents for commission of offence punishable under Section 448 of IPC, because no evidence was adduced for that crime.

15. On the basis of aforesaid discussion, it would be apparent that the appeal filed by the State has no force. There is no basis by which an interference can be made in the judgment of the trial Court. Consequently, 10

the instant appeal filed by the State is dismissed and the judgment dated 20.3.1996 of the trial Court is hereby maintained.

16. The respondents are not required to remain present before this Court any more, therefore it is directed that their bail bonds shall stand discharged.

17. A copy of this judgment be sent to the trial Court with its record for information and compliance. (N.K.Gupta)

Judge

01/08/2012

Ansari.