Madhya Pradesh High Court
Shamshunbai And Anr. vs Shahjad Khan And 2 Ors. on 26 June, 2023
Author: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 26 th OF JUNE, 2023
CRIMINAL REVISION No. 1057 of 2012
BETWEEN:-
1. SHAMSHUNBAI D/O NAKIM KHAN, AGED 26
YEARS, R/O VILLAGE TUTIYAHEDI P.S.
MACHALPUR DISTRICT RAJGADH (BIAORA)
(MADHYA PRADESH)
2. NAKIM KHAN S/O MUSTAFA KHAN, AGED 66
YEARS, R/O VIL. TUTIYAHEDI, P.S. MACHALPUR,
DISTRICT RAJGADH (BIAORA) (MADHYA
PRADESH)
.....PETITIONERS
( BY SHRI DHARMENDRA YADAV - ADVOCATE ON BEHALF OF SHRI
AKASH RATHI - ADVOCATE FOR THE PETITIONERS)
AND
1. SHAHJAD KHAN S/O HAFIZULLA KHAN, AGE
MAJOR, R/O VILLAGE TUTIYAHEDI P.S.
M ACHALPUR DISTRICT RAJGADH (BIAORA)
(MADHYA PRADESH)
2. KALIM KHAN S/O HAFIZULA KHAN AGE MAJOR
RESIDENT OF VILLAGE TUTIYAHEDI, P.S.
MACHALPUR, RAJGARH BIAORA (MADHYA
PRADESH)
3. SALIM KHAN S/O HAFIZULA KHAN AGE MAJOR
R/O VIL TUTIYAHEDI, P.S. MACHALPUR,
RAJGARH BIAORA (MADHYA PRADESH)
STATE OF MP THROUGH POLICE STATION
4. JEERAPUR DISTRICT RAJGADH (MP)
.....RESPONDENTS
Signature Not Verified
Signed by: BHUNESHWAR
DATT
Signing time: 27-06-2023
12:16:21
2
This revision coming on for direction this day, th e court passed the
following:
ORDER
The petitioners have filed this criminal revision under section 397 read
with section 401 of Cr.P.C. being aggrieved by the order of acquittal dated
4.9.2012 passed by learned Special Judge (SC/ST Prevention of Atrocities Act)
in criminal appeal No. 175/2011 for the offence under section 294,323, and
506 of IPC whereby the appellate court has confirmed the judgment of acquittal
of the respondents/accused dated 29.4.2011 passed by the JMFC Jeerapur in
criminal case No. 321/2008.
2. The prosecution story in brief is that on 1.8.2008 at about 4 pm
while complainant Samsun alongwith his father Nakim Khan went to Jawahar
Chouk for purchasing cloths, at that time respondents/accused persons came
there from back side and accused Shahjad caused injury to father of
complainant due to which he sustained injury on his back and left leg. Kalim
gave a blow of wooden stick on head of complainant. Respondents also
threatened them that if they would lodge complaint then they will kill them.
Accordingly offence has been registered. During investigation, Dr. Omeshwar
Gupta conducted MLC of victims Samsun and Nakim.
3. After completion of investigation charge sheet has been filed and after
framing of charges and on appreciation of evidence available on record, the trial
court acquitted the respondents/accused persons from the charges under
section 294, 323, and 506 of IPC. An appeal was preferred by the complainants
against the judgment of acquittal of trial court before the appellate court. The
appellate court dismissed the same vide judgment dated 4.9.2012 thereby
affirming the judgment dated 29.4.2011 passed by trial court. Hence this
Signature Not Verified
Signed by: BHUNESHWAR
DATT
Signing time: 27-06-2023
12:16:21
revision petition has been preferred against both the judgments.
4. Learned counsel for appellants submits that complainants have lodged
the FIR against respondents no.1 to 3. The judgment passed by both the
courts below is illegal and against the facts and evidence available on record.
The statement of complainants and other witnesses is well supported by
medical evidence available on record. Therefore, both the courts below have
totally erred in giving benefit of doubt to accused persons based on wrong
appreciation of evidence. There is no material contradiction and omission in
statements of prosecution witnesses and there is no reason to disbelieve their
statement. Hence he prays that judgments of both the courts below be set aside
and accused persons/respondents No. 1 to 3 be punished for offences under
section 323, 294 and 506 of IPC.
5. After service of notice, Vakalatnama has been filed on behalf of
respondents no. 1 to 3/accused persons but nobody appeared on their behalf at
the time of final arguments.
6. Counsel for respondent no. 4/State opposes the prayer and prays for
its rejection.
7. Perused the statements of complainant Samsun Bee (PW-1), her
father Nakim Khan (PW-2), ASI N.S. Narvariya (PW-3), Arjun Singh (PW-4),
Dinesh (PW-5), Dr. Omeshwar Gupta (PW-6) and all documentary evidence
available on record coupled with the fact that respondents no. 1 to 3 have
denied that they have committed the aforesaid offence with the complainants
Samsun and her father Nakim Khan.
8. From perusal of the statements of these witnesses it appears that there
is so many contradictions and omissions in the statements of complainant
Signature Not Verified
Samsun Bee (PW-1) her father Nakim Khan (PW-2) on the material facts. Even
Signed by: BHUNESHWAR
DATT
Signing time: 27-06-2023
12:16:21
statement of complainant Samsun is contrary to FIR (Ex.P-1) which was
lodged by her. Independent witnesses Arjun (PW-4) and Dinesh (PW-5) both
of them turned hostile and they did not support the prosecution story, even they
have denied to identify the complainants and accused persons also. Therefore,
it appears that no independent witness has corroborated the statement of
complainant and victim Nakim Khan. Even medical evidence is not consonance
with the statement of complainant and victim Nakim Khan, no seized weapon
was sent to its examination to the concerned doctor during investigation. It has
been alleged that accused persons were abusing in a filthy language but it is not
specifically mentioned that what are the exact words they had used at the time
of incident.
9 . Learned counsel for defence contended that at the time of incident
petitioner Salim was in his duty place. His alibi has been duly proved by Ram
Singh (DW-1) and Sayeed (DW-2) which is well corroborated by the
attendance register (Ex.D-1) and the attendance certificate (Ex.D-2). Therefore,
presence of petitioner Saleem on the place of occurrence appears to be
doubtful.
10. Considering the statements of the complainant alongwith other
prosecution witnesses and the finding given by the learned Magistrate, this
Court is of the considered view that complainants/petitioners have failed to
prove their case beyond reasonable doubt against accused/respondents no. 1 to
11. The Hon'ble Apex Court in the case of Sampat Babso Kale, Vs.
State of Maharashtra reported in AIR Online 2019 SC 648 has held that
presumption of innocence attached to every accused person gets strengthened
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Signed by: BHUNESHWAR
DATT
Signing time: 27-06-2023
12:16:21
on acquittal of accused by the Trial Court, High Court should not lightly
interfere with decision of trial Court.
12. In view of the aforesaid, no illegality or perversity is found in the
impugned judgements. Accordingly no case is made out for interference in the
impugned judgement dated 4.9.2012 and consequential order dated 29.4.2011.
13. With the aforesaid, the present revision petition filed under Section
397 read with section 401 of Cr.P.C. by petitioners is hereby dismissed.
C.C. as per rules.
(ANIL VERMA)
JUDGE
BDJ
Signature Not Verified
Signed by: BHUNESHWAR
DATT
Signing time: 27-06-2023
12:16:21
