Madhya Pradesh High Court

The State Of M.P. vs Chhagan on 23 September, 2022

Author: Anil Verma

                             1


      IN THE HIGH COURT OF MADHYA PRADESH
                       AT INDORE
                        BEFORE
            HON'BLE SHRI JUSTICE ANIL VERMA
             CRIMINAL APPEAL No. 1617 of 1999

Between:-
STATE OF MADHYA PRADESH
THROUGH P.S. AMJHERA
                                            .....APPELLANT
(BY SHRI SANJAY KARANJAWALA, GA)

AND

1.    CHHAGAN S/O MUNNALAL
      AGED ABOUT 45 YEARS,
      R/O: AANTEDI

2.    RADHU @ RADHAKISHAN
      S/O MUNNALAL LODHA
      AGED ABOUT 50 YEARS,
      R/O: AANTEDI

3.    DHOOLJI S/O MUNNALAL LODHA
      AGED ABOUT 55 YEARS,
      R/O: BANDEDI

4.    BHARATLAL S/O BHAGGAJI LODHA
      AGED ABOUT 55 YEARS,
      R/O: BANDEDI

5.    DULESINGH S/O MATHURALAL LODHA
      AGED ABOUT 30 YEARS,
      R/O: AANTEDI

6.    BHERUSINGH S/O RADHAKISHAN LODHA
      AGED ABOUT 22 YEARS,
      R/O: AANTEDI

7.    HARESINGH S/O MATHURALAL
      AGED ABOUT 22 YEARS,
      R/O: AANTEDI
                                    2


8.     MATHURALAL S/O MUNNALAL LODHA
       AGED ABOUT 55 YEARS,
       R/O: AANTEDI

9.     CHUNNILAL S/O LUBHOJI LODHA
       AGED ABOUT 72 YEARS,
       R/O: BANDEDI

10.    AMAR SINGH S/O CHUNNILAL LODHA
       AGED ABOUT 42 YEARS,
       R/O: BANDEDI

11.    RAMESH S/O CHUNNILAL LODHA
       AGED ABOUT 42 YEARS,
       R/O: BANDEDI

12.    SHANKAR S/O SHOBHARAM
       AGED ABOUT 45 YEARS,
       R/O: AANTEDI
                                                    .....RESPONDENTS
(BY SHRI SWAPNESH GARG ADV.)


      This appeal coming on for hearing this day, the court passed the
following:




                             JUDGMENT

(Delivered on 23/9/2022)

1/ Appellant/State has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") against the impugned judgment dated 20.5.1999 passed by the Judicial Magistrate First Class, Sardarpur, District Dhar in Criminal Cae No.859/98, whereby the respondents/accused persons have been acquitted from the charges punishable under Section 147, 336 & 323 of IPC.

2/ Brief facts of the case are that on 23.5.1994 Dhulji Patel, brother of the complainant Haresingh was elected as a Sarpanch from

Khankedi Panchayat by defeating respondent No.7/accused Hare Singh. Dariyav Singh and other persons called Dhulji at village Aantedi for welcoming him. Complainant Haresingh, Dhulji Patel, Harisingh, Bharat Singh, Mahesh, Rameshwar, Ramesh, Bhuvan and other persons reached by tractor at village Aantedi and after the completion of function they were coming back to Khankedi. While passing through the house of the respondent No.8/accused Mathuralal, suddenly respondents started pelting stones and chilli powder over them. Lineman Dulesingh switched off the electricity connection, but accused persons pelted stones continuously, due to which victim persons sustained certain simple injuries. Complainant Haresingh lodged an FIR at P.S. Amjhera. MLC have been conducted regarding the injured persons.

3/ After completion of the investigation, charge sheet has been filed before the trial Court and charges under Section 147, 336 & 323 of IPC have been framed against the respondents/accused persons. They abjured their guilt and pleaded for trial. After completion of the evidence of both the parties, the trial Court by the impugned judgment acquitted all the accused persons/respondents from the aforesaid charges. Being aggrieved by the impugned judgment of acquittal, appellant has preferred this appeal.

4/ Learned counsel for the appellant has submitted that there is ample evidence available on record to create direct nexus of the respondents with the crime. However, the trial Court has not appreciated the evidence of Harisingh (PW-1), Dhoolji (PW-3), Mahesh (PW-4), Rameshwar (PW-5) and Bharat Singh (PW-6) in proper manner and has taken too technical view in considering the facts available on record.

Therefore, trial Court has committed an error in acquitting the respondents from the aforesaid charges. Hence, he prays that impugned judgment be set aside and the respondents be convicted for the aforesaid offences.

5/ Counsel for the respondents/accused persons opposed the appeal and prayed for its rejection by submitting that the trial Court by the impugned judgment has properly appreciated the evidence available on record and on the basis of the evidence, properly acquitted the respondents. Therefore, there is no scope available for interference in the impugned judgment.

6/ I have heard the learned counsel for both the parties and perused the entire reocrd.

7/ Prosecution has examined Hari Singh S/o Ranchhod (PW-

1), Dr. A.K. Shrivastava (PW-2), Dhoolji (PW-3), Mahesh (PW-4), Rameshwar (PW-5), Bharat Singh (PW-6), Bhuvan (PW-7), Juvan Singh (PW-8), Harisingh S/o Mangilal (PW-9), Ramesh (PW-10), Girdhari (PW-11) and ASI A.M. Khan (PW-12). Respondent/accused persons did not examine any witness in their defence. Although complainant Hari Singh S/o Ranchhod (PW-1) has stated in his statement that at the time of incident when he along with Rameshwar, Bhuwan, Narayan, Chunilal, Pannalal and other persons were returning from Aantedi, while they were passing through the house in front of respondent Mathuralal, accused persons started pelting stones also throwing chilli powder over them. They switched off the electricity connection. Due to such stone pelting Rameshwar, Bharat, Hari Singh, Bhuwan, Ramesh, Mahesh and Hare Singh sustained various injuries. According to Hari Singh, root cause of

the incident is that accused persons lost a Sarpanch election and opponent Dhool Singh has been elected. He lodged an FIR (Exh.P-1).

8/ Dhool Ji (PW-3), Mahesh (PW-4), Rameshwar (PW-5), Bharat (PW-6), Bhuvan (PW-7) and Harisingh S/o Mangilal (PW-9) have also deposed in the same manner. There are so many contradictions and omissions have been pointed out by the accused/respondents during the cross-examination of Hari Singh (PW-1) and the police statement (Ex.D-1). Some of the contradictions and omissions in the statement of Hari Singh and his report (Ex.P-1) are material in nature, therefore, in the light of the aforesaid contradictions and omissions, statement of Hari Singh (PW-1) appears to be doubtful. From perusal of the statement of Hari Singh (PW-1), Dhoolji (PW-3), Mahesh (PW-4), Rameshwar (PW-

5), Bharat Singh (PW-6), Bhuvan (PW-7), Harisingh S/o Mangilal (PW-

9) and Ramesh (PW-10), it is clearly established that all these witnesses are related with the same group or party and they have supported and worked for Dhool Ji in the Sarpanch election. Therefore, it is proved that they are interested witnesses with the complainant.

9/ As per the statement of Dhool Ji (PW-3), Chowkidar Amar Singh, Dariyav Singh and Antar Singh were also present there, but police has not examined all these material eye-witnesses. Juvan Singh (PW-8) has categorically stated that he does not know that who pelted the stones, actually he did not saw the incident, hence he does not know that who has committed the above incident. Hence, it is clear that Juvan Singh (PW-8), who is an independent witness, has not supported the case of the prosecution.

10/ From perusal of the cross-examination of Hari Singh S/o Ranchhod (PW-1), Dhoolji (PW-3), Mahesh (PW-4) and Bharat Singh (PW-6), it is clear that all these witnesses have admitted that at the time of incident electricity connection was switched off and thereafter the incident of stone pelting has been done and all these witnesses have also admitted in their cross-examination that in absence of the light and on account of throwing of chilli powder, they could not see the incident. Therefore, in view of the testimony of these witnesses, their statement regarding identification of the accused persons at the time of incident appears to be very doubtful. It is also remarkable that incident took place before the house of accused Mathura Prasad and all the complainants/victims were outsider for the said village, therefore, respondents/accused persons cannot be treated as aggressor.

11/ It is also established that opponent party has also lodged FIR against the complainant party and accordingly offence under Section 147, 148, 323, 325, 336 and 294 of IPC has been registered against Dhoolji, Haresingh and 17 other persons and some of the accused persons also sustained injuries, but prosecution has not given any explanation of injuries of accused persons. It is also fatal to the prosecution. After the trial, they have been acquitted by the trial Court vide judgment dated 20.5.1999 passed in Criminal Case No.781/1998 by giving the benefit of doubt. It is also admitted fact that there is a political rivalry between both the parties regarding the Panchayat election. Independent witnesses have not supported the case of the prosecution and the witnesses who are examined by the prosecution, most of them are interested witnesses and their testimony not appears to be trustworthy, therefore, this Court is of the considered view that the trial

Court has not committed any error in disbelieving the witnesses examined by the prosecution.

12/ It is settled principle of law that if the trial Court, on due appreciation of evidence came to the conclusion about the findings of acquittal, then normally, if the findings is not perverse, then it should not be interfered with by the appellate Court. In this regard, reliance can be placed on the decision of Hon'ble Apex Court rendered in the case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415, wherein, Hon'ble Apex Court has laid down legal principles for entertaining appeal against acquittal, which reads as under :

"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in

favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court".

13/ In view of the above re-appreciation of evidence on the basis of the legal principles laid down by Hon'ble Apex Court and after considering the entire evidence and the finding given by the trial Court in the impugned judgment, this Court is of the considered opinion that the finding of acquittal recorded by the trial Court does not appear to be perverse or illegal, which can be interfered by this Court. Resultantly, no ground is available to interfere in the impugned judgment passed by the trial Court. Therefore, this court is not inclined to allow this appeal.

14/ Consequently, this Criminal Appeal under Section 378 of Cr.P.C. is hereby dismissed.

15/ Let a copy of this judgment along with the record of the trial Court be sent back to the concerned trial Court for necessary action.

(ANIL VERMA) JUDGE Trilok/-