^ HISH COURT OF CHHATTISeARH : BILASPUR SB: HON'BLE SWS. JUSTICE VCTAy KUMAR SHRIVASTAVA OtIMINAL APPEAL N0.96 of 1990 AppetlCTrt : State of Mcdhya Pradedi, at present a Versis Re®ondents! 1) Ha'bondi, 5/o &marom, aged about 22 yaars. 2) &hruv, S/o Dukhuwa, oged about 20 years. 3) Aryore Oas, S/o ^lakhram, cyed about 45 years. 4) Jawdior, S/o Babulat, flged about 28 years. 5) Munna, S/o Aryore Das, aged about 30 yeare. 6) Kaniram, S/o Bdsulal, a9ed about 30 years All are residents of Noyapara Arondhc, P S Takhatpur, Tahsil, Takhctpur, Dist-Bilaspur (CS) PRESENT: Shri UNS &eo, Additionol Publte Prosecutor with Shri &K Swalre, tfy SA fof the Appetlant / State. Shri Rajeev Shrivast<wa, counsel for the respondents. JU&6MENT (bated 6th September 2006) Judicial Magistrate, First Class - Bilaspur, in Criminol Case No.464/1988 vide its Judgment dated 27.12.1988 acquifted ail 1+te respondents of the charges for committing offence under Sections 147, 323, 324 & 325 of the IPC. Being aggrieved, the State has fited the instant appeal under Section 378 of the CrP.C. 2) Factual matrix of the case, in brief, is that on 11.08.1985, at about 6 am, Mewaram and Indai, were going to their field for 'Byasi Operation', alon9 wilfi their animois. While passing throu9h the field of Babulal, he objected and caught Mewaram ond assaulted him. When Bhukhau came to rescue, he was also assaulted by Jawoliar. Bhukhau aiong with his son Mewaram and Indal returned to his house. When they reached near their house, they were surrounded by Munna, Jawahar, Anjore, Dhmv <nid Babulal. Anjore was carrying a Tabbali and others were armed with lathi. They started beoting Kiukhau, when Bhecheram, Sunder and Indat came to rescue, they were also assaulted by atl those persons .& Harbonsh. 3) Bhukhau lodged the report. FIR was r'egistered; all the injur-ed persons were sent for medical examination. E>r- Habib examined Bhukhau, Indat, Beninim, Sunderlal and Mewaram. After examination, he prepared exQmination report describing all the injuries found on 1+ieir body and sent his report to PoSice. On his advice, X-niy of Bhukhau was also taken. Witnesses were examined; Tabbali and clubs were r-ecoivered dnd seized. After investigation, charge sheet was filed in the Court of Judicial Magistrate, First Class, Bilaspur for trial. 4) Charge under Sections 147, 323, 324 and 325 wos framed against the respondent Anjore Das, and charge under Sections 147, 323, 325 was framed a9ainst rest of •the respondents and the same was read over and explained to them, they objured their guilt. Their defence was that they are innocent and have been falsely impticated in the case beccMS&of animosity. il 5) Leamed trial Court, taking into account right of private defence available to the respondents and various infirmities present in the case as welt in the stort-ements of witnesses hetd that prosecution hofi failed to prove guilt beyond doubt against the respondents, therefore, vide impugned judgment, acquitted al! the respondents with all the charges leveted a9ainst them. nii 6) Bhukhau, PW/1. Indal PW/2, Mewaram PW/5 have in their cross examination admitted the fact that out of the same incident, counter case against them is pending. From their startement, it is also clear that Sunderla!, Bhukhau, Beniram, Indal, Atewaram are facing the counter trwl. Ex.D/8 is the injury report, which ctearly establishes that Babubl receiyed six injuries in the incident. Ex.D/9 is the iriedical examination report of Kaniram; urfiich also establishes that six injuries have been received by him in the incident. From this report, it is also ctear that even injury has been caused on vitai parts of Kaniram. None of the prosecution witnesses explained as to how Babulal and Koniram sustained nunnerous injuries on their bodies in the incident. 7) Sunderlal, PW/4 in his cross examination has deposed that the quarrel took place in the field of Babulal and Koniram. Indal and Mewaram were passing throu9h that field wftti their animals in which crop was there. Mewaram (PW/S) in his cross-examination stated that quarrel took place in the field of Babulal; he was. going along wi-th his animals. Crop was present in the field. From this evidence, it is clear that Mewaram and Indol were 9ojn9 throuah the field, in which crop wos present. they not onty passed through it but were also taking their animnls throu9h that fietd, therefore, Babulal and Kanirant had right to prsi'ect^their crop and to remove the intruders. 1 4 8) Bhukhau (PW/1) in examinution-in-chief deposed that his son Mewaram went to his fietd who was beaten by Babulal with a club and when he reached the site, he saw his son Mewaram lying on the ground. He asked Babulal why he had beaten his son, by tt>at time, Kaniram and Jawohar clso reached Ihere and they assuilted him by ki-thi on his head. Harbansh and Munna also came there and chcsed him. Anjore assaulted him on his left ear <nd hcnd by Tabbali. Thereafter, all the appellants assaulted Benirom (father of Bhukhau). Jawahar <md Dhruv also assuutted Beniram with a tathi. When Bhukhau entered inside his house, Harbansh and Anjore stnick on his door by o Tabbali, and cut it. In cross examirwtion, he has stated that when Atewaram left to his field, at that time, he was in his house. When he reached his field, he found Mewaram lying there. Further he has stated that he saw Babulal sitting over on the chest of Mewaram. Further he deposed •that Babulal did not assault Mewaram in his presence. He also stated that when Bodbulal started beating him, AAewaram stood up but did not come to rescue ttim. Babutal cssaulted him wilt) a lathi. He hos also stated that when he came to the street, all the <ippellflnts surrounded him, Anjore and HarbanA assaulted him by Tabbati. l-1e is outhor of FIR and his statement under Section 161 has also been recorded by the Police. From his cross examination it appears that his statement before the Court is contradictory to his report and previous statement. He stated in his statement that he did not report that when oninmls passed through the field of Babulal, he asked Mewaram why he was passing his animals through his field ond caught him. He also stated that he did not state before police . that when Mewaram possed the flnimals through -the fieid of Babulal, He cau9ht hold of Mewaram and started beoting him. i-1e has reported that Kaniram ond Jawahar came together from their house, why name of Jawohar has not been written in his rsport, he does not know. He further stated that he reported Ihfft Harbansh and Munna 5 came cnd beat Sunder. In his police statement, he has stated that Munna assoulted Sunder but why -t+iese facts have not been writt-en In his statennent, he could not explain it. He hos reported that Harbonsh assaulted on his head by tabbaii; but why this fact has not been recorded in his wport, he does not know the reocson and when •rtie same fact is missing in his police statement, he has no reason to explain. Jawahar ond bhruv assaulted Beniram by lathi; why this fact does not find ploce in his reportcnd statement, h®has no reason to explain. 9) He also in his cross examination stated ttiat Kaniram assautted Indal, but he did not become unconscious. Indat came bock along with him and Mewaram whereas Indal (PW/2) stated that Koniran'i. Jawahar and Babutal assaulted him by c iathi he fell down and became unconscious. When he became conscious, he caine to his house. 10) Indal (PW/2) in examination-in-chief stated that in the earty mornin9 when he was going tovwrds his field, he saw Kaniram, Jawahar and Babulal beating Bhukhau and Mewaram ond when they saw him, they teft Mewaram, Bhukhau. Kitniram, Jawahar and Babulnl assaulted him by tathi. He fell down and became unconscious; when he became conscious, he came to his house and wos sitting in his court/ard. Harbansh carryin9 <m axe and Anjore carrying tabbali came ond started beating his door. In cross examination, he stated that he did not 9ive the statement of portion A to A, B to B, C to C, D to D of Ex.D/1 i.e. statement recorded by Police under Section 161 of ttie Cr.P.C. In his cross examination, he stated that when Mewaram cried, at that time, he was not present on the spot ond Bhukhau was also not pressnt on the spot by that time. He fur-ther stated thct al •Hie appellants asaiulted Bhukhau and Mewaram and they did not assault him. He aiso stated that Mewaram and Bhukhau when they I" s § < *•' tt "1 °° '•£>o ci -{" -{-I c?3 rn g' 2?" 3- e> B! £1.. :r r..) ~( CL. ro tii CL. ^ 3r 'v'' "Jia Q 8 £iL* ""i (,£i -I- ffl Ci o Cl... ^a. :r' xr n^^ 0 E:u Pi o 0 3->. oa Ei L^ 1 ? ''<: 1 &f —t' Ul r>"s Ci(n tfi 6 ^ sf' =r iil "*<: f' 7^" B> o cr- c: •s.'. ^s SJ£:!.- c-l 8 8 p Ui El Cl "•<,, EL o Er' i'i- a. :r ? g: 61 -!•'. ;!-• ^ V o 8> x Ej" tj- 8 &. tj-f 0- 0" u- ''"i. ! !-1 a. 0" 00 :i- <:! c» T^ '& c^: a1 iffi: <s;2 Ei &. 3s. ^Si o (i! o Ei s- s 1 -,(l E: B ro oV i;: B' i:r (/Sl -g. 3r? i<r ^ Si6 ft cr Eh.ti. :r rd ^ (I! "^; o. dg; a:ei «! ^t •">["' a 1:1 (H + (0 (,r> o' ^ •^,^' sH El 3 ui 6. rt -<.. ir' 'i .8 £L •:'' '§. .f' ^r "t? I -I.1 ° to uL EL -;!"1 ^F £IL,. i"; c[ -O M' a. 3- 3 D' I 1 li '"Ct r'n o m x' i" == <S EF '3 ...{.. w 5" pi >. d go 6EL r> i 3s. Sf' I't E: -1 03 §: ;;; ci- 1 ul 0 C: p) 00 ~ X o' :3 :r (» «!" S IX, <e,°. ~u Cs -^. Bl s. «i u. 0- o+ Bi Ui Ul £i !> =?- n '&i ffl ".i^ f 00 r".f K ci 1 I:: W ^r („. =r "•'• o's s:- a e. ^tllill 6 ,»y oc: g tll (:!>c: 8 I. i 0 "6 U> -•! Ul sr ('l 8(^ ifs, Cl>; R 0 lli e^ 1 B. o &" a. o ..uil cs ""( II 1 •^ l,£li C7 c:<: <n (a g '•'o' »f'" "s. CO 'kurf'' I:!- O -<: (tt X'ti ^- ui 1r' 00 n,!T 6 n 8i" •h 0- Bf "fit Cl r> C!a. Bl >; i:r i;t 6 Bi D'" ci :r Ul •T.S o s. fil•3 (il B § u 8g c:» 9 0 Ul c> ""l; y" c: du';? ^r" "~<: Bl» Ci.,. K\l ei .nil <;>c: (ji o £!-. B "'E CT- £! 5[ Ul ui 1 a. ga Sf ,5 Rl "! ?' a'" "( i-i) -L,w </i cr'». B) IA c> Ul C) ci El C.-( s£L ir CT' "•":i", Uii (i>y Cl u.{ 1 B)a, -^ ,zy El 3:cr "1 :h fi ci' 1,£1 'wt Vf o.. § E[ .-!.. 0 Cl 0 Bl Ciui Ui C! f^l '^ Ul «> ui g:-r -J-" «! B> a. 00 3 u> n ?> fi:i v\o Ct^ (ft oa a. <i E: *wSoo:! Ulo Ctc: «r' 9ti\ c ^f6ci » d 6c:6i -h &- c>£: ? M 1 ° cj g. El l' B? C! Bi rj-s5. 0 •'!: .£! "CI •a Bl ui ? s (ii Ui i:r- s (» (9 ^^1.. •t+ie Police, he stated that around 6.00 a.m. in the morning Mewaram and Indal were going towards their field. Babulol obstructed them and assaulted •t+iem. Anjore by tabbali, go.ye a blow on 1+>e door and Harbansh cut the door, Dhruv and Jawohar assaulted Benir-am and ccused frocture on his hond. When Bhukhau and Indai were brouoht by the appellants, he requested tiiem not to beat Bhukhou and Indal. Why Police in its statement i.e. Ex.D/2 did not record all tiiess facts, he failed to exptain -the reasons for it. 13) Mewaram (PW/5) in his statennent in examination-in- chief deposed •that Bobuhl assaulted him by lerthi and atso pressed his neck, he cried, hearing his noise, his father Bhukhau came. Babula! by means of lathi, assauited Bhukhau. Kaniram, Jawahar <and Meworam came there, -they assaulted him and Bhukhau. However, they rushed towards their house, Benirom requested 1+ie appellants not to beot but Jawahcr assaulted Benirani and his hand was broken. Anjore and Harbansh cut their door. In cross examinotion he has contradicted his previous statement recorded by Potice portion A to A of Ex.b/3. He further- stated that befor-e police he stated that Munna, Kaniram ond Jowahar' osaiulted his father by lorthi. Ail -the appellants aftar beating his father again assaulted him. All the appellonts beat his cfoor, but why Police in its statement did not record all these facts, he has no reason to explain. Bhukhau (PW/1) Indal (PW/2), Beniram (PW/3), Sunderlal (PW/4), AAewaram (PW/5) are close retatiyes omd al! the^ witnesses are neighbours also. This fact has been established by Sunderlal (PW/4). From the detailed statements of atl the^ witnesses, it is evident thot witnesses are not oniy contradicting each other, but their statements are centi-adiclwy to their previous version. Also on some parts, •ttieir evidence does not appear to be notural. IS) From the foregoing discussion, it is clecr that various infirmities are pr-esent in the statements of all the witnesses adducsd by the prosecution in support of their casa and right of private defence of person <md property was also pressnt in fawouf of the respondents. Therefore, finding of leamed trial Court that prosecution failed to establish beyond doubt guilt against the respondents does not call for any interference. 16) In the result, the dismissed. filed by the State.fails and is ._-<^ '..... Sd/- Vijay Kumar Shrivastava Judge gadma