Madhya Pradesh High Court
The State Of Madhya Pradesh vs Pawan And Ors. on 12 December, 2022
Author: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 12 th OF DECEMBER, 2022
CRIMINAL APPEAL No. 372 of 2001
BETWEEN:-
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION GARHAKOTA DISTRICT SAGAR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI PRAMOD CHOUBEY-DEPUTY GOVERNMENT ADVOCATE )
AND
1. PAWAN KUMAR S/O KHEMCHAND JAIN, AGED 21
YEARS, R/O JAWAHAR WARD,GARHAKOTA.
2. ASHOK KUMAR, S/O NARAN NAMDEO AGED 28
YEARS, R/O UDAYPURA.
.....RESPONDENTS
(BY SHRI K.K. GAUTAM-ADVOCATE)
Reserved on : 26.09.2022.
Pronounced on : 12.12.2022.
....................................................................................................
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the Court pronounced the following:
JUDGMENT
This appeal under Section 378(1) of the Cr.P.C. has been preferred by
the State of M.P. feeling aggrieved and dissatisfied with the judgment and order
of acquittal dated 17.01.2000 passed in Criminal Case No.289/98 (State of M.P.
vs. Pawan Kumar and another), by Judicial Magistrate, First Class, Rahali
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District Sagar whereby respondents/accused have been acquitted of the offence
under Section 354 of IPC.
2. As per prosecution story on 27.05.1991 at around 03:30 P.M. Kamal
Rani (PW-1) lodged an FIR stating that she is resident of Jawahar Ward and is
a labour. Today at around 2:30 P.M. her husband and father-in-law were at
home. Her father-in-law was giving care to his son while her husband was
sleeping. She had gone to flour mill of Uttam Jain to get the wheat ground.
Uttam Jain was repairing his flour mill due to which he told her to leave wheat
there and to collect the same after some time. When he was returning towards
her home, in front of Ashok Darji's house, Ashok Darji and Pawan Jain caught
hold her hand. Pawan pressed her breast and took her inside the house of
Ashok and forcibly laid her down on the couch. Thereafter, Ashok went
outside and started to work on his sewing machine. Pawan with an intention to
rape her attempted to lift her petticoat, at this, she abused and asked him to
leave her. In the meantime, hearing her house, her father-in-law reached there
and beat her and Pawan both. He also beat Ashok by means of slipper.
Incident was witnessed by Kallu Khawas and Uttam Jain by reaching there. She
narrated entire incident to both of them. As per the narration given by Kamal
Rani (PW-1) FIR was registered at Crime No.117/91 of P.S.Garhakota, District
Sagar for commission of offence under Section 354 of IPC.
3. After investigation, charge-sheet was filed. Learned trial Court stated
substance of accusation of offence under Section 354 of IPC to both the
respondents/accused. They abjured their guilt and claimed to be tried.
4. In order to prove its case, prosecution examined Kamal Rani (PW-1),
Paltu (PW-2), Girdarilal (PW-3) and Sabbu (PW-4). No defence witness was
examined. Learned trial Court after hearing both the parties and appreciating the
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evidence on record passed the judgment and order of acquittal acquitting the
respondents/accused for commission of offence under Section 354 of IPC.
5. Learned counsel for the appellant/State assailing the impugned
judgment and order of acquittal by the learned JMFC has submitted that learned
trial Court has not properly appreciated the evidence of the prosecution
witnesses. It has not considered the evidence of Kamal Rani (PW-1) and her
father-in-law Paltu (PW-2) in proper perspective. Therefore, the findings
recorded by the learned trial Court are not only erroneous but also bad in law.
Therefore, he has prayed for allowing the appeal by setting aside the impugned
judgment of acquittal.
6. On the other hand, learned counsel for the respondents/accused has
supported the impugned judgment of acquittal and submitted that learned trial
Court has properly appreciated the evidence of the prosecution witnesses and
has not committed any error in acquitting the respondents. The appeal has been
filed without any merit. Therefore, he has prayed for dismissal of the same.
7. It is a settled position of law that High Court should not interfere in
the well-reasoned order of the trial Court which has been arrived at after proper
appreciation of the evidence. The High Court should give due regard to the
findings and the conclusions reached by the trial Court unless strong and
compelling reasons exist in the evidence itself which can dislodge the findings
itself. The High Court is not required to re-appreciate the evidence in its
entirety, especially when there existed no grave infirmity in the findings of the
trial Court. There exists no justification behind setting aside the order of
acquittal passed by the trial Court, especially when the prosecution can suffers
from several contradictions and infirmities. Reliance can be placed on
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Bannareddy vs. State of Karnataka, 2019 (1) MPLJ (Cri.) (S.C.) 104.
8 . In the case of Bhaskarrao vs. State of Maharashtra, 2019 (1)
MPLJ (Cri.) (SC) 289 Hon'ble Supreme Court has held as under:-
While hearing an appeal against an acquittal order of the trial
Court the High Court has full power to review the evidence upon which
an order of acquittal is founded, yet the presumption of innocence of the
accused being further reinforced by his acquittal by the trial Court, the
findings of that Court which had the advantage of seeing the witnesses
and hearing their evidence can be reversed only for very substantial and
compelling reasons. In such a case the Appellate Court is further
burdened with the task of reaffirming the innocence of the accused. The
trial Court after a full-fledged trial by cogent reasoning acquitted the
accused. The trial Court had dealt with the case in a foolproof manner
by drawing out 11 important circumstances and delivered a well-
reasoned judgment thereby acquitting the accused, with which the High
Court ought not to have interfered. It is also a trite law that order of
acquittal is not to be set aside likely only because two views are possible
and if the view taken by the trial Court is a reasonably plausible view,
then the Appellate Court should not disturb it just because it feels that
another view of the matter is possible.
9. In the light of the aforesaid settled position of law, this Court has to
examine the findings recorded by the trial Court on the basis of the evidence of
the witnesses on record.
10. In the case on hand, as per the evidence of Kamal Rani (PW-1) eight
years ago at around 03:00 p.m., she had gone to Uttam's flour-mill for getting
her wheat ground, the flour mill was being repaired. She was going back to her
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home. When she reached in front of Ashok tailor's house, Ashok told her that
her wife is calling her as she had stomachache, at this when she went into the
courtyard of Ashok tailor, he pushed her due to which she fell down in the
room, in which Pawan Jain was already there. Pawan Jain attempted to outrage
her modesty by lifting her petticoat. She raised an alarm. Hearing alarm her
father-in-law Palturam reached there. Thereafter she and her father-in-law
Palturam beat both the accused persons by kicks and fists. When Ashok
attempted to give scissors' blow to her father-in-law, he caught hold scissors.
The aforesaid evidence of Kamal Rani finds corroboration from the evidence of
Paltu. But as far the truthfulness of evidence of Kamal Rani (PW-1) and
Palturam (PW-2) is concerned, their evidence did not find corroboration from
the evidence of Sabbu (PW4). He has been declared hostile.
11. Girdharilal (PW3) is a hearsay witness. He is the husband of Kamal
Rani (PW-3) and son of Palturam (PW-2). Thus, learned trial Court has not
committed any error in not believing the evidence of Girdharilal (PW-3) and
Sabbu (PW-4).
12. As far the truthfulness and reliability of the evidence of Kamal Rani
(PW1) is concerned, in her cross-examination, she has stated that earlier she
had never visited Ashok tailor's house but in FIR Ex.P/1 it is mentioned that
Ashok tailor had told Kamal Rani (PW-1) about stomachache of her wife.
Likewise the fact of pushing her is also missing in Ex.P/1 FIR and police
statement Ex.D/1. In her cross-examination, Kamal Rani (PW1) has admitted
that Pawan runs a grocery shop owing to which he is known to her. She has
stated that she had stated to police about pressing of both the breast by Pawan
from front but same also does not find place in FIR Ex.P/1. She has denied
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from the fact that she was forcibly laid on the couch by the accused persons
but same find place in FIR Ex.P/1. Thus, it is apparent that Kamal Rani has
made material improvements in her court evidence as there are material
contradictions in her police statement and court evidence.
13. There is no mention in the FIR Ex.P/1 that Ashok along with
scissors had run to inflict the scissors' blow on her father-in-law. In this regard
she has improved her court evidence from the Police statement Ex.D/1. She
has denied from many facts mentioned in the FIR and has stated that she had
not stated those facts in the FIR and in her police statement. Thus, it is
apparent that the evidence of Kamal Rani PW1 is not of sterling quality.
Therefore, I am of the view that the learned trial Court has not committed any
error in disbelieving her evidence. In her cross-examination, Kamal Rani PW1
has admitted that she had used to purchase grocery items from Pawan Jain's
shop on credit. As she was purchasing the grocery items on credit from Pawan
Jain's shop the possibility of her lodging a false report against Pawan Jain on
demanding of his money cannot be ruled out.
14. As far the evidence of Palturam (PW-2) is concerned, he also does
not appear a truthful witness. In his cross-examination, he has stated that he had
left his home without hearing the scream of Kamal Rani (PW-1). He further
stated that when he had asked Ashok about the whereabouts of Kamal Rani,
Ashok had said that he does not know. His evidence on the point is
uncorroborated. His evidence that when he reached to Ashok's house, he was
working on his sewing machine is also missing whereas same is mentioned in
her police statement Ex.D/2. According to this witness, when he went inside the
house of Ashok, Kamal Rani was lying on the land, whereas as per the
prosecution story, Kamal Rani was forcibly laid on the couch.
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15. This witness Palturam has admitted that Kamal Rani was used to
purchase grocery items from Pawan's shop on credit and were used to get her
cloth stitched from Ashok and was usually going to Ashok's house. While
Kamal Rani (PW-1) has clearly denied from the fact that she often used to go
to Ashok's home for getting her cloth stitched. If the incident was true then
Kamal Rani (PW-1) had no reason to conceal the fact of her previous
acquaintance with Ashok and getting her cloth stitched from him. The
concealing of number of facts by Kamal Rani (PW-1) makes it clear that she
has made material improvements in her evidence which makes the evidence of
Kamal Rani (PW-1) and Palturam (PW-2) unbelievable.
16. In this regard, the evidence of Sabbu (PW-4) also cannot be
ignored, who in his cross-examination has stated that when Pawan demanded
his money credit in the account of Kamal Rani from her then there was some
commotion among them and Kamal Rani had threatened that she will lodge false
FIR against him.
17. In this case, it also cannot be overlooked that prosecution has not
examined the scribe of the FIR to prove the same. No independent witness has
supported the evidence of Kamal Rani (PW-1) and Paltu (PW-2). Therefore,
having taken into consideration the admissions made by Kamal Rani (PW-1)
and Palturam (PW-2) the possibility of false implication due to demand of his
credit money by appellants Pawan and Ashok from Kamal Rani (PW-1) cannot
be ruled out.
18. Thus, no infirmity is found in the findings of acquittal recorded by
learned JMFC. Thus, there are no reasons to interfere with the judgment of
acquittal recorded by the learned trial Court.
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19. Therefore, this State appeal being devoid of merit is not worth
maintainable. Hence, dismissed. The respondents are on bail. Their bail bonds
shall stand discharged.
20. Trial Court record along with copy of the judgment be sent down
immediately to the Court of learned JMFC Rahali District Sagar through
Sessions Judge Sagar.
(DINESH KUMAR PALIWAL)
JUDGE
b
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