Gyaneshwar vs Sevaram And Ors
2021 Latest Caselaw 765 Chatt

                                         1

                                                                              NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                           Acquittal Appeal No. 76 of 2010

      Gyaneshwar, S/o. Shiv Kumar Yadu, Aged about 35 years, Village - Borsi,
      Tahsil /P.S. Berla, Disttt. Durg (C.G.)                (Complainant)

                                                                      ---- Appellant

                                      Versus

      1.     Sevaram, S/o. Girvar Verma, aged about 55 years,

      2.     Kalasai, S/o. Raghunath Sahu, aged about 35 years,

      3.     Devcharan, S/o Paklu Nishad, Aged about 35 years,

      4.     Khirod, S/o Bhogilal Choudhary, Aged about 35 years,

      5.     Channu, S/o Chabilal Sahu, Aged about 35 years,

      All above resident of Village - Borsi, Tahsil/P.S. Berla, Distt. Durg (C.G.)

                                                                  ----Respondents

For Appellant          :      Mr. Vaibhav A. Goverdhan, Advocate.
For Respondents        :      None present.


                  Hon'ble Shri Justice N.K. Chandravanshi

                                  Order On Board
01.07.2021

(1) Proceedings of the matter have been taken-up through Video

Conferencing.

(2) By way of filing instant appeal, the appellant has challenged legality,

validity and propriety of the judgment dated 22.5.2008 passed by Additional

Sessions Judge, (FTC), Bemetara, Distt. Durg in Criminal Appeal No. 8/2007

acquitting the respondents/accused of the commission of offences punishable

under Sections 323 read with Section 34 & 506 (B) of the Indian Penal Code,

quashing the judgment dated 6.6.2007 passed by Judicial Magistrate, First

Class, Bemetara, District Durg in Complaint Case No. 8/06 wherein

respondents/accused were convicted under Sections 323/34 and 506 (B) of the

Indian Penal Code and sentenced them to pay fine of Rs. 100/- each and till

rising of the Court with fine of Rs.300/- each, respectively with default

stipulations.

(3) Brief facts of the case are that at the time of incident,

appellant/complainant was working as Teacher in Government Primary School,

Borsi. On 21.9.1998 at about 3 PM when he was returning from the school,

respondents/accused restrained him and abused him by using filthy language

and also assaulted him with hand and fist and also threatened to kill him, due to

which, local resident of the said village namely Bhukhan, Ramu, Kanhaiya,

Jeevan and their family member came there and rescued him. The matter was

reported to the concerned police Station, but since they did not take any action

against the respondents/accused for committing the alleged offences, therefore,

appellant/complainant filed compliant case before the Judicial Magistrate, First

Class, Bemetara, District Durg.

(4) After following due process of law, learned trial Magistrate, vide order

dated 6.6.2007 convicted and sentenced the respondents/accused as mentioned

in the opening paragraph of this judgment.

(5) The Respondents/accused preferred criminal appeal there-against before

the appellate Court. Learned Appellate Court, vide impugned judgment dated

22.05.2008, set aside the judgment passed by trial Magistrate and acquitted the

respondents/accused of the aforesaid offences. Against which, instant appeal

has been preferred by the appellant/complainant challenging the same.

(6) Learned counsel appearing for the appellant/complainant would submit

that after appreciating the oral and documentary evidence adduced by the

appellant/complainant, learned trial Magistrate is absolutely justified in convicting

and sentencing the respondents/accused of the aforesaid offences but the

learned appellate Court, vide impugned judgment, merely on the basis of

statement of the doctor, who had medically examined the appellant/complainant,

that there is no instrument to measure the pain of patient, has acquitted the

respondents/accused of the aforesaid offences whereas independent witnesses

have supported the statement of appellant/complainant stating that

respondents/accused assaulted him and also threatened to kill him. He would

further submit that although the appellant/complainant was not sustained any

visible/external injury, as a result of assault but he suffered pain, which has

stated too by the treating doctor, despite that learned appellate Court has

acquitted the respondents/accused of the aforesaid offences by the impugned

judgment, therefore, the judgment passed by the appellate Court, being illegal

and perverse, is liable to the set aside.

(7) I have heard learned counsel for the appellant and perused the material

available on record including impugned judgment and also judgment of the trial

Magistrate.

(8) Complainant - Gyaneshwar (PW-1) has stated in his evidence that on

21.9.1998 when he was returning from Government Primary School, Borsi, at

that time, respondents/accused restrained him and beaten him with hand and fist

and accused Sewaram assaulted him by stone. He has further stated that

respondents/accused were also threatening to kill him. He also stated that on

being assaulted by the respondents/accused, he (complainant) had sustained

injuries on his stomach, temple (Kanpatti) and left leg. In his cross-examination,

he has stated that his whole body was injured and got swollen near hip. In

paragraph 37 of his cross-examination, he has stated that the blood was oozing

out from his left knee.

(9) Bhuwan (PW-2), who is said to be one of eye-witness to the incident, has

stated in his evidence that he saw that the respondents/accused were

committing marpeet with the appellant/complainant and respondent

No. 1/accused -Sewara assaulted complainant (Gyaneshwar) by stone. He has

also supported the statement of the appellant/complainant that he was got

swelling on his hand and legs and blood was oozing out from his left knee. In

paragraph 24, he has stated that he had not seen the act of assault but he has

seen the blood, which was oozing out from the left leg of appellant/complainant.

(10) Kanhaiya Lal (PW-4) has stated in his evidence that after hearing "cpkvks

cpkvks", when he went to the place of occurrence, he saw that

respondents/accused were beating appellant/complainant - Gyaneshwar by

hand and fist and they threatened the appellant to kill him. In his cross-

examination, he has also stated that blood was oozing out from the left leg of

complainant - Gyaneshwar.

(11) Dr. V.P. Agrawal (PW-3) has stated in his evidence that on 21.9.1998 at

10.25 O'clock at night, he medically examined the complainant. He has stated

that complainant/injured - Gyaneshwar was complaining pain on his head and

upper right of stomach but no visible/external injuries were found in his person.

He has further stated that the complainant was suggested for X-ray of his

stomach and head. He has prepared the MLC report of the complainant and

photocopy of same has been annexed with the record as document (Ex.2-c.)

(12) Perusal of the aforesaid evidence of appellant/complainant including other

witnesses would show that respondents/accused beaten the complainant by

hand & fist and also one of the accused person namely Sewaram assaulted him

by stone and due to the said assault, several parts of the body of complainant

were got swollen and blood was oozing out from the left leg. According the

statement of Dr. V.P. Agrawal (PW-3), hardly about within 6-7 hours, he has

medically examined the complainant namely Gyaneshwar but he did not find any

visible/external injuries in the person of the complainant. If the accused persons,

who are 5 in number, assaulted the complainant, then atleast some visible

injury / mark of injury would have been found in his body, but as per evidence of

treating doctor, no visible/external injuries were found in the body of the

complainant. Bhuwan (PW-2) and Kanhaiyalal (PW-4) are relatives with each

other and they have admitted in their statements that villagers have made

complaint against them regarding making of illicit liquor by them. The have also

admitted that many other persons of village were present at the place of

occurrence but no other independent witness has been examined by the

appellant/complainant in support of his case. Appellant/complainant -

Gyaneshwar (PW-1) has admitted in paragraph 38 of his cross-examination that

he has no verbal communication with the respondents/accused prior to this

incident, which shows that they have no cordial relations between them prior to

this incident. Bhuwan (PW-2), who is said to be the eye witness to the incident,

has not stated in his statement that respondents/accused were threatening the

complainant to kill him.

(13) Looking to the evidence of complainant and so-called eye witness, it

reveals that their evidence regarding assault do not get support from medical

evidence of Dr. V.P. Agrawal (PW-3). If the appellant/complainant was beaten by

the respondents/accused due to which his body parts were got swollen and

blood was oozing out, then atleast some visible/external injuries would have

been found on the person of the appellant/complainant, but no such injuries were

found in his person. It shows that appellant/complainant and the said eye-witness

have made exaggerated statements. Even Bhuwan (PW-2), who is said to be

the eye witness to the incident, has not stated that respondents/accused were

given threat the appellant/complainant to kill him, it seems that due to complaint

for preparing the illicit liquor, Bhuwan (PW-2) and Kanhaiyalal (PW-4) did not

have cordial relations with the respondents/accused, who are resident of the

same village. Other independent witnesses, who were present at the place of

occurrence, have not been examined by the appellant/complainant in support of

his case.

(14) In view of the aforesaid discussion, I am of the view that appellate Court

has rightly held that on the basis of evidence adduced by the

appellant/complainant, charges under Section 323/34 and 506 (B) of the IPC

have not been proved against the respondents/accused persons.

(15) Accordingly, the acquittal appeal preferred by the appellant/complainant is

devoid of any substance and, therefore, the same is liable to be and is hereby

dismissed.

Sd/-

(N.K. Chandravanshi) Judge

D/-