Ram Charan vs The State Of Madhya Pradesh
2021 Latest Caselaw 7085 MP

                                                                     Cr.A.No.2274/2007


                   HIGH COURT OF MADHYA PRADESH
                     PRINCIPAL SEAT AT JABALPUR

                            Criminal Appeal No.2274/2007

                                Ram Charan & others
                                          Vs.
                             The State of Madhya Pradesh


Counsel for the appellant    : Mr. Varun Garg, Advocate, on behalf
                                    of Mr. Aseem Dixit, Advocate.

Counsel for the respondent/ : Mr. Manhar Dixit, Panel Lawyer.
State


                    Coram: Hon'ble Mr. Justice Atul Sreedharan
                          Hon'ble Mrs. Justice Sunita Yadav


                                  JUDGMENT

(08/11/2021)

Per: Atul Sreedharan, J :

The appellants herein are aggrieved by the judgment and order

dated 17.10.2007 passed in Session Trial No.112/2007 whereby

learned Third Additional Sessions Judge, Sagar, convicted the

appellants herein for an offence under section 396 IPC and sentenced

them to suffer rigorous imprisonment for life and a fine of Rs.10,000/-

and an additional simple imprisonment for 6 months, in default

thereof.

2. The case of the prosecution in brief is as follows. On 27.7.2006 at about

09:00 p.m. the appellants herein along with other co-accused persons entered

the home of the complainant, assaulted her husband causing his death, broke

open the almirah and took away Rs.2000/- and also 750 gms. of silver from

their house. The undisputed facts in this case are that the FIR, Ex.P-2, is

against 8 to 10 unknown accused persons. The FIR bearing No.238/06 of

Police Station-Surkhi District-Sagar has been registered by Mathura Bai

(P.W.1) who is the wife of the deceased and the sole eyewitness to the incident.

The FIR has been registered on the next day which is 28.06.2006 at 3.15 p.m.

The 161 statement of PW-1 is Ex. D-1 where too she has not named any of the

appellants and in the statement she has only stated that the assailants were

unknown to her.

3. In the course of the assault, PW-1 also suffered certain injuries caused by

hard and blunt objects which were all simple in nature. The injuries were in the

nature of contusions and abrasions.

4. The names of the appellant nos.1 and 2 were given in a representation made

by the wife of the deceased almost two months after the incident, which is

Ex.P-3. In the said representation, she says that the names of appellant nos.1

and 2 were taken by her husband in the course of the assault where the

deceased asked them not to assault him. In her examination-in-chief this

witness says that all the accused persons had their faces covered with cloth

while assaulting her husband. She identified appellant nos.1 and 2 before the

learned trial court. One co-accused Badri was not identified by her before the

learned trial court and appellant no.3 was identified by witness Mathura Bai

(PW-1) on the basis of his voice. The court asked his name and when appellant

No.3 spoke out his name, the witness identified him as an accused who was

present on the date of the incident. In her cross-examination she reiterates that

all the 10 people who came to her house had their faces covered with cloth and

that she could not identify anyone of them. Paragraph 6 of the cross-

examination pertains to the identification of appellant no.3 only on the basis of

his voice and she states that she doesn't know the name of appellant no.3,

neither his parentage and nor his place of the residence. She further states that

she had never seen or met appellant no.3 before her testimony before the

learned trial court. In paragraph no.8, this witness states that she is hard of

hearing on account of advanced age. She further states that she is unable to

identify people on the basis of their voice and that if anybody calls them out

from outside their house, she is unable to identify such persons on the basis of

their voice and can only identify them after seeing them. As regards her

contention that she had told the police at the time of registering the FIR and

her 161 statement that she had taken the names of appellant nos.1 and 2, she

has been confronted with the FIR and her 161 statement in paragraph 9 of the

cross-examination in which this witness says she is unable to give any

explanation as to why the same is not present in her 161 statement or the FIR.

In the same paragraph she also states that it is correct to suggest that when she

was taken to Jabalpur for treatment, she did not tell the police or her sons

about the participation of appellant nos.1 and 2 in the offence.

5. PW-2 who is the son of the deceased and is merely a hearsay witness has given

his statement on the basis of information that he has received from PW-1.

Further he has written down the representation to the Superintendent of Police

upon the information given by PW-1. The deceased has suffered five to six

injuries out of which three are lacerated injuries, one of which is on the frontal

bone of the skull resulting in a sub dural haematoma which proved fatal, as is

revealed by the opinion of the doctor in the post-mortem report that the

deceased died on account of the head injury suffered by him. The post-mortem

report is Ex. P-15 which has been proved by the doctor PW-12 who has

reiterated the contents of the post-mortem report in his court testimony.

6. Learned counsel for the State, while supporting the conviction arrived at by

the learned trial Court, has submitted that the delay of two months in making

their representations to the Superintendent has not been fatal to the case of the

prosecution as she was undergoing treatment at the hospital for her injuries.

Besides, the learned counsel for the State has referred to Ex.P-3, which is the

representation to the Superintendent of Police where PW-1 has stated that the

delay in approaching the Superintendent of Police was on account of fear in

the mind of the witness. He is also stated that the age of the witness who is

over 60 years must be taken into account and when all these are seen together,

the delay in making the representation to the SP is reasonable and cannot be

said to be fatal to the case of prosecution.

7. Per contra learned counsel for the appellants has submitted that PW-1 who

is the author of the FIR has not named any accused person in the FIR and the

same is registered against unknown assailants. He further says that the 161

statement of PW-1 also does not name any of the appellants herein and she has

reiterated that offence is committed by unknown persons. He has thereafter

drawn our attention to paragraph 9 of PW-1's statement where she says in

cross-examination that it is correct to suggest that while she was undergoing

treatment at Jabalpur, she did not inform the police or her sons about the

names of appellants herein. He has also referred to the MLC of PW-1, which is

Ex.P-12, which reveals that the injuries received by PW-1 are only in the

nature of contusions and abrasions which the doctor has opined as simple in

nature and therefore, she was not in such a serious state that she could not have

revealed the names of the appellants herein to her sons or to the police if she

had actually known the same on the date of the incident.

8. Heard the learned counsels for the parties and perused the record the trial

Court.

9. As stated earlier herein above the undisputed facts in this case are that the

appellants have not been named in the FIR and that the FIR is against the

unknown persons. In her 161 statement, PW-1 does not name the appellants

herein and that the assailants were unknown persons. In Ex.P-3, PW-1 has

represented to the S.P. Sagar saying that she came to know about the appellant

nos.1 and 2 being involved in this crime on the basis of the deceased telling

these appellants not to assault him. She has also admitted the fact in her court

testimony that the appellants had their faces covered and she could not identify

any one of them. As regards appellant no.3, she says that she has recognised

him on the basis of his voice which she heard for the first time and in the trial

Court while giving a testimony when the court asked appellant no.3 to give his

name and when his spoke out she is stated to have identified him as one of the

assailants. She has also stated in her court testimony while being cross-

examined that she is hard of hearing and that she is unable to identify people

on the basis of their voice and can only identify them after seeing them. The

admission by the witness in paragraph 9 of her cross-examination that she

never revealed the names of the appellants herein while undergoing treatment

either to the police or to her sons goes to reveal that her identification of the

appellants herein before the trial court or in their representations made to the

S.P. Sagar is not worthy of placing reliance upon.

10. In view what has been observed by us herein above and the discussions

recorded by us, the appeal is allowed and we set aside the conviction of the

appellants herein under section 396 IPC and acquit them. Their bail bonds

shall stand discharged.

           (Atul Sreedharan)                            (Sunita Yadav)
                 Judge                                      Judge
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