Lalit vs The State Of Madhya Pradesh
2023 Latest Caselaw 12559 MP

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IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
        HON'BLE SMT. JUSTICE ANURADHA SHUKLA
              ON THE 04TH OF AUGUST, 2023
               CRIMINAL APPEAL No. 8171 of 2021

BETWEEN:-

1.    LALIT S/O SHRI RAJKUMAR TIWARI, AGED
      ABOUT      40   YEARS,  OCCUPATION:
      GOVERNMENT SERVANT,


2.    ANIL S/O SHRI RAJKUMAR TIWARI, AGED
      ABOUT     35   YEARS,  OCCUPATION:
      PRACTICING LAWYER

      BOTH R/O MUKHYA VAN ANUSANDHAN
      AVAM VISTAR VRITT, IN FRONT OF
      EXCELLENCE SCHOOL SEONI, DISTRICT
      SEONI (M.P.)
                                                      .....APPELLANT
(BY SHRI AJAY KUMAR DWIVEDI - ADVOCATE)

AND

THE STATE OF MADHYA PRADESH THR. P.S.
KOTWALI SEONI (MADHYA PRADESH)
                                                     .....RESPONDENT
 (BY SMT. EKTA GUPTA - PANEL LAWYER)


RESERVED ON          :     26.07.2023
PRONOUNCED ON :            04.08.2023


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

This appeal has been preferred against the impugned judgment of conviction and sentence passed on 21.12.2021 by the Second Additional Judge to the First Additional Sessions Judge, Seoni in S.T. No.146/2016 holding the appellants guilty of the offence under Section 323/34 of IPC and sentenced them to simple imprisonment for six months alongwith fine of Rs.1000/- with direction to further undergo rigorous imprisonment for one month in case of default in payment of fine.

2. The brief facts of prosecution case are that the complainant in the case was the wife of appellant Lalit. The two were married on 08.07.2008. Appellant Lalit is a constable in CRPF posted at Garhchiroli, while complainant was living in Bhopal for studies of their daughter. She had come to her in-laws house in Seoni on 15.05.2016 and on 24.05.2016 appellant Lalit had also come to Seoni. They both had taken a house loan of Rs.20,00,000/-, out of which Rs.2,00,000/- were paid to the father of Lalit, which he was not returning despite demand. Per contra, appellant Lalit was demanding Rs.2,00,000/- from complainant as dowry. Earlier also he had taken Rs.2,00,000/- from the mother of complainant for purchase of a plot. On 02.06.2016 appellant Lalit sold the jewelry of complainant and for this also a dispute arose between them. Complainant went to her parental house in rage, but on next day , i.e.03.06.2016 she was asked by the appellant Lalit to come back to the site of new house. On her arrival, both the appellants started abusing her, tried to throw her from the roof, they pushed her from the staircase causing her injuries, the complainant was pregnant and on account of this assault she suffered pain in stomach. She was being harassed for demand of dowry ever since of

her marriage. The FIR was made by her in police station City Kotwali, on the basis of which a case under Section 294, 323, 498 IPC and 3/4 of Dowry Prohibition Act was registered against the appellants. Charge- sheet was filed and the trial was completed.

3. Under the impugned judgment, the parents of appellants were acquitted, while both the appellants stood convicted and sentenced only under Section 323/34 of IPC and they were acquitted of the offence under Sections 498-A, 294 and 313 of IPC as well as 3/4 of Dowry Prohibition Act.

4. In this appeal the grounds raised are that there were civil and matrimonial disputes between the appellant Lalit and his wife Neha (complainant). This important fact was ignored that the complainant herself was the aggressor who had picked up the quarrel and falsely implicated them for self inflicted injuries. It was appellant Anil who had called the police by dialing 100. The prosecution story regarding injury to the complainant was not supported even by the medical evidence. There was a delay in lodging the FIR which has not been explained. The independent witness did not support the prosecution story. There were contradictions, omissions and embellishments in the story as stated by the prosecution witnesses. Despite these facts, the learned trial Court passed the impugned judgment in mechanical and cavalier manner contrary to ocular and documentary evidence. It was ignored that in the backdrop of previous disputes, the testimony of close relatives and interested witnesses should not have been believed. It is therefore, prayed the impugned judgment be set aside and the appellant be acquitted of the case.

5. Learned Panel Lawyer for the State has opposed the present appeal on the ground that the impugned judgment is passed on the well appreciated facts hence it needs no interference.

6. Heard learned counsel for the parties, perused the impugned judgment as well as the evidence available on record.

7. From the record of trial Court it is evident that the case was hotly contested between the parties. There were as many as eight prosecution witnesses examined in the case with lengthy statements. The defence has also examined both the appellants as witnesses and documentary evidence (Ex.D-1 to D-29) were submitted to challenge the prosecution story. It can be understood that there was a matrimonial and civil dispute pending between the parties hence, the matter was so deeply and viciously contested before the trial Court. But in the present appeal the matter needs to be looked into from a limited perspective, as this Court has only to decide whether the offence under Section 323/34 of IPC was committed on 03.06.2016, as claimed by the complainant or not.

8. According to prosecution story, complainant Neha Tiwari was in her parental house on the date of incident and she was asked on telephone by appellant Lalit to come to the site of house under construction. It was claimed by complainant that her sister Anjali dropped her there, when she left and the complainant was all alone, the present appellants abused her, tried to kill her by throwing her down from the roof and pushed her from the staircase. It is also claimed by her that the incident was witnessed by Ranjeet Vishwakarma who was working at the site.

9. Ranjeet Vishwakarma (PW1) has during his statements confirmed the presence of appellant Lalit as well as the complainant on

the site and according to him they were arguing in the courtyard. He could not disclose the topic of argument as according to him he was not able to hear their voices clearly in the noise of machine. It is further disclosed by him that appellant Anil Tiwari reached later when he brought tiffin for appellant Lalit and complainant Neha. He has denied to have seen any incident of assault. He too confirms the fact of civil dispute between the parties by claiming that the keys of the house are with the complainant and not with appellant Lalit.

10. Ranjeet Vishwakarma is the only eyewitness to the incident, but he has failed to state a single fact regarding the assault by appellants on complainant Neha. The daughter of complainant has been though examined as PW3, but she was not present on the scene of occurrence. She has narrated the incident of assault of some other occasion, but that is not relevant to decide the present appeal.

11. The statements of Neha Tiwari (PW2), her mother Rekha Mishra (PW5) and her sister Anjali Mishra (PW8) clearly prove that there was a dispute between complainant Neha and her husband regarding their house, which was under construction and for which they had taken a joint house loan of Rs.20,00,000/-. Thus, in the light of these disputes, the incident of assault was required to be proved through independent evidence, but there is complete absence of corroboration by an independent witness.

12. Rekha Mishra (PW5) and Anjali (PW8) are the mother and sister of complainant. Both of them do not claim to have seen the entire episode in person. According to Rekha Mishra (PW5), she reached the spot after the assault was over, while Anjali claims that on receiving the information she reached the spot and saw that appellants were giving

kicks to the complainant by holding her hands. Complainant Neha Tiwari (PW2) narrates the incident by claiming that she was taken to the roof by both the appellants where they attacked her and tried to push her therefrom and when she somehow escaped and was coming down the stairs, appellant Anil Tiwari pushed her from behind which made her to fall down from the staircase. It is further stated by her that both the appellants then came down and gave her kicks in her stomach and back.

13. Anjali Mishra (PW8) claims that she saw her sister in an injured state and at the same time their mother Rekha Mishra had also reached there; as they both were taking the complainant to the hospital, their auto was stopped midway by the appellants who tried to pull the complainant out of auto and had scuffled with her. It is further stated by Anjali (PW8) that soon the police arrived and took the appellants to the police station. The story of scuffling and pulling out of auto is not mentioned in the FIR (Ex.P/2) which was written at the behest of complainant. This story finds no mention even in the statements of complainant Neha Tiwari (PW2) and of her mother Rekha Mishra (PW5). Thus, it can be observed that serious improvements have been made by the sister of complainant namely Anjali (PW8) in her court testimony.

14. Independent witness Ranjeet Vishwakarma (PW1) has disclosed that initially only appellant Lalit and complainant Neha were present at the construction site and later appellant Anil arrived there with tiffin for both of them. If the statements of Rekha Mishra and Anjali are believed, then it appears that they too had arrived on the spot. It is not disclosed that how far was their location from the place of incident and how much time they took to reach the spot. Rekha Mishra (PW5) claims that she was informed on telephone that complainant Neha was being

assaulted by the appellants. It appears unnatural that instead of making a call to the police, she herself decided to go to the spot. Appellants have placed the document Ex.D13 on record, which is an information received under RTI. It reflects that on 03.06.2016 at 10:56 a.m. appellant Anil Tiwari made a call from his mobile phone to police via DIAL 100 and this event was attended by head constables Kundan and Rajesh. This fact itself confirms that the appellants were not the aggressors because had they been the aggressors, the attempt to call the police through DIAL 100 would not have been made by them.

15. The facts as discussed above show that despite making the claim that appellants were aggressors, the complainant side decided to take the complainant to the hospital instead of making a call to the police, while the appellants side was keen to have the intervention of police in the matter and therefore, made a call through DIAL 100. It is admitted by Anjali Mishra (PW8) that they arrived at the police station and at the same time the appellants too arrived there. Similar are the statements of Rekha Mishra (PW5). In para 27 of her deposition she admits that while they were in the police station, the appellants too were present there. Interestingly, none of the injuries caused to the complainant was severe or grievous.

16. The facts appreciated above disclose these significant indications that the parties were at inimical terms prior to the incident; there were civil as well as matrimonial disputes between them, still no independent witness supported the prosecution case; the statements of Anjali Mishra (PW-8), the sister of complainant are found to be not reliable in the light of improvements made therein; and the conduct of both the parties after alleged incident suggests that the appellants were

seeking intervention of police while no efforts were made by the complainant side to seek immediate police help. Further, there is no explanation that if the complainant was being taken to the hospital, why they landed up in police station and why they waited for hours as admitted by Rekha Mishra (PW5) in paras 27 and 30.

17. Now the statements of complainant and her relatives need to be examined in the light of medical evidence. Dr. Jayaj Kakodia (PW4) had medically examined the complainant and found three apparent wounds on her person, and for complaints of pain in head, shoulder and stomach, no external marks of injury were found. The three injuries, which are mentioned in her MLC (Ex.P6), are the swelling in frontal side of head, redness below the right eye and abrasion near the right wrist. No injury marks were found on any other part of her person. Had there being any assault by kicks, the marks thereof would definitely have been there. The injuries which are mentioned in the MLC report were caused due to fall from staircase. Though it is claimed that she was pushed by appellant Lalit, but there is no corroborative evidence to this effect. The alleged injuries caused in the presence of Anjali Mishra (PW8) by legs and kicks have not been found on the person of complainant.

18. It is claimed by complainant that due to injury caused on her stomach she suffered miscarriage, but doctor Manisha Sirsaam (PW6), who examined the complainant on the date of incident, i.e. 03.06.2016 found no injuries either on her private parts or on the lower stomach. Further, there was no bleeding from her uterus and she had no signs of miscarriage.

19. The medical evidence produced on record clearly demolishes the story built up by the complainant and her relatives regarding assault

and causing injuries by kicks on stomach. The only fact established through medical evidence is that the complainant suffered three injuries on the right side of her body, which was caused due to fall and there is no reliable evidence on record to prove that complainant was thrown or pushed by any of the appellants down from the staircase.

20. In the light of above discussion, the conviction of appellants under Section 323 IPC is not sustainable and it is hereby set aside. Consequently, this appeal is allowed and appellants are acquitted of the charge of Section 323/34 of IPC. They are on bail. Their bail bonds stand discharged.

21. Let a copy of this judgment be sent to the trial Court for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE

rv

Digitally signed by NITESH PANDEY Date: 2023.08.05 14:42:27 +05'30' Adobe Reader version: 11.0.8