'3 HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench : Hon'ble Shri Rajeshwar Lal Jhanwar, J. Criminal Appeal No. 509/1996 \-t The State of Madhya Pradesh versus Mani Ram JUDGMENT PostforpronouncementofJudgment \^ -03-2010 Sd/- R.L. Jhanwar Judge " \••1. :j"a •• / HIGH COURT OF CHHAmSGARH: BILASPUR SINGLE BENCH: HON'BLE SHRI RAJESHWAR^ LALJHANWAR, J. AppeUant Respondent Criminal Appeal No.509/1^96 The State of Madhya Pradesh Versus Mani Ram, S/o Gopiram Sen, aged 32 years, R/o Tarri, PoJice Station Rajim, Distt. Raipur (M.P. now C.©.) APPLICATION FOR I.EAVETO APPEAL U/S378 (3) OF THE CODE OF CRIMINAL PROCEDURE/APPEAJ- U/S 378 (1) OF THE CR.P.C. Present:- Shri S.R.J.Jaiswal, PL for the State. Shri Sarfaraj Khan, counsel for the respondent. JUDGMENT (Delwered on \<\ /03/2010) The State has preferred this appeal against the judgment dated 07.08.1995 passed by the Judicial Magistrate Class-II, Raipur in Criminal Case No. 269 of 1991 by which the leamed lower Court has acquitted therespondent under Section 325 ofthe I.P.C. 2. Brief facts of the prosecution case are that on 12.02.1991 at about 12.00 in the night the complainant - Dhaniram was going on bicycle from village Tarri to watch fair at Rajim and when he was just few feet away from'Tiis house, the respondent/accused was standing with his colleague. Seeing the complainant, the respondent/accysed gave a blow over his leg with iron rod, which he was haying }n his hand. As a result of blow by iron rod, the cQmplainant received injuiy on his leg and he cried for help whereupon her wife. - Kuntibai reached there. The respondent/accused fled from the spot. On the next date of the incident a written report was lodged in Police Chowki, Nayapara. The complainant was sent for medical examination and according ^ to medical examination fracture was found in his leg. After recording stateinents of the witnesses under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Judicial Magistrate Pirst Class, Raipur, who in turn rnade over the case to Judicial Magistrate Second Class. 3. After affording an opportunity to the parties and after hearing the learned counsel for respective parties, the leamed lower Court has acquitted the resporident/accused of charge under Section 325 of the I.P.C. Against this judgment, the State has preferred this appeal. 4. Learned Panel Lawyer for the State/appellant argued that despite there was ample evidence available on record including the evidence of the coniplainant to convict the respondent/accused for the offence under Section 325 of the I.P.C. the Court below ignoring the statement of the complainant and other witnesses acquitted the respondent ,of the- charge under Section as above. On the other hand, counsel for the respondent supported the impugned judgment of acquittal. 5. I have heard learned counsel for the parties and perused the record of the court below including judgment impugned. 6. In order to appreciate arguments advanced by the parties, I shall first examine the evidence of Dr. Deenanath Dewangan P.W.7 and Dr. S.C.Vishnoi P.W.6. According to Dr.Deenanath Dewangan, the complainant - Dhaniram was having fracture in left thigh bone. X-ray was advised by him. Dr. S.C.Vishnoi P.W.6 examined the complainant and upon X-ray he found that fracture is in left fem^ir B'one and his report is Ex.P.l. Dr. Deenanath Dewangari'' ^.W.7 has stated that the injury sustained by the complainanf could be due to fall from the cycle. Complainant — Dbaniram P.W.l has stated in his evidence that he sustained injuiy on his left leg and he was examined by Doctor and X-ray was also done. Thus, it is clear that complainant sustained injury on his left leg. It is also evident from the statement of Dhanirain ^% ..<" 9 -3,'- that when he was going to Rajim fair, the accused assaulted him by iron rod due to that he sustained injury whereupon he cried for help and his wife reached there and thereafter he was taken to the hospital. He has on the one hand stated that his wife lodged a report to police and on the other hand he has stated that he does not know that who has reported the incident. Kuntibai P.W.5, wife of the complainant, has deposed that after hearing cries of her husband when she went to the spot, the accused was nioving towards his house and her husband told her that accused beaten him. According to Kuntibai P.W.5 she called one Tahara Begum P.W.4 for assistance. Tahara Begum P.W.4 has stated that she did not see as to who has assaulted the complainant but only saw the injury of the complainant. It is also clear from the statement of Dhaniram that when he was assaulted by the respondent he was on cycle and he fell down from the cycle after moving away hardly for some distance. 7. It is also clear from-'the «vidence of Kuntibai that there is enmity between the complainant and the accused/respondent. It is clear from the evidence that nobody witnessed the incident. Even Kuntibai did not see the incident. The prosecution has not proved the F.I.R. and has also not adduced the evidence of Investigating Officer. The complainant also did not know as to who has reported the matter. On the one hand, he has stated that his wife has lodged the report and on the other hand he has stated fhat did not know who has lodged the report to the police and the police have also not seized the iron rod. Thus, the evidence of Dhaniram is not reliable because it was not supported by his wife - Kuntibai and Tahara Begum. According to Dr. Deenanath Dewangan, the/inju^y sustained by fhe complainant could be due to fall fronicycle and Dhaniram has also stated in his evidence he fell'dowh froin the cycle. Therefore, it can easily said that the injyiy sustained by the complainant - Dhaniram is due to fall from the cycle. Thus, the prosecution has failed to prove that injury sustained by the complainant is due to assault by the respondent. w ^i^%t - L(— 8. Having thus considered the above evidence, I am of the view that the prosecution has not been able to prove its case beyond reasonable doubt. Therefore, the leamed lower Court has acquitted the respondent of the charge under Section 325 of the I.P.C. 9. In the facts and circumstances of the case and after considering the material available on record as well as the elaborate judgment impugned pas's'ed by the Court below, I am of the view that in an appeal against acquittal if two views on the prosecution evidence are possible and the trial Court has taken one view favourable to the accused persons, then it will not be permissible for the appellate Court to reverse the finding of acquittal by taking the other possible view on the prosecution evidence. Thus, the judgment of the learned lower Court is not perverse or illegal. 10. In the result, the Appeal-filed by the appellant/State against the acquittal of respondent/accused person is liable to be and is accordingly dismissed. Sd/- R.L. Jhanwar Judge n'?'^. "sa '. /