Madhya Pradesh High Court
The State Of M.P. vs Param Lal on 9 August, 2024
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
1 CRA-247-1996
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 9 th OF AUGUST, 2024
CRIMINAL APPEAL No. 247 of 1996
THE STATE OF M.P.
Versus
PARAM LAL
Appearance:
Shri Aditya Narayan Gupta - Public Prosecutor for the appellant/State.
Shri Siddharth Dutt - Advocate for the respondent.
JUDGMENT
Per: Justice Avanindra Kumar Singh
This appeal by the State is against the impugned judgment dated
19.1.1994 passed by the Additional Sessions Judge, Damoh in Sessions Trial
No.12/1992 acquitting the respondents/accused (Pannalal s/o Bhagirath and
Paramlal s/o Bindrawan) from the charge under section 302 of the Indian
Penal Code [for short "IPC"].
2. The prosecution case, in brief, is that a month before the date of
incident i.e. 18.11.1991, quarrel took place between deceased-Mukundi and
Kailash Kurmi which led to animosity between them. On the date of incident
at about 06 p.m. when deceased-Mukundi had taken his cattle to Khirka in
village Bamuriya, at that juncture accused-Paramlal armed with 'lathi' and
accused-Pannalal with 'ballam' stopped him midway and assaulted him.
2 CRA-247-1996
Accused-Pannalal gave 'ballam' blow on the left temple of accused as a
result of which deceased-Mukundi fell down and thereafter accused-Paramlal
gave several 'lathi' blows on his back, and then they left the place of
incident. The incident was seen by his brother (Halke-PW.1) and father
(Nonelal-PW.7) from a distance. The brother of deceased noticed that
deceased sustained several injuries and was not in a position to walk. The
brother gave intimation to Kotwar-Sukhlal (PW.5) and, thereafter alongwith
mother took the deceased around 8.15 p.m. for lodging a report at Police
Station where initially offence u/s 307/34 of IPC was registered. However,
while taking the injured for medical examination he succumbed to the
injuries sustained by him. Accordingly, the offence u/s 307 IPC was
converted to one under section 302 of IPC. Thereafter, the Police completed
the investigation and filed charge-sheet in the competent Court. Since the
respondents/accused persons abjured their guilt, therefore, they were
subjected to trial in S.T.No.12/92.
3. The prosecution exhibited documents and examined 14
witnesses, out of whom brother of deceased Halke (PW.1) and his father
Nonelal (PW.7) are eye witnesses. The statement of deceased-Mukundi was
recorded under section 161 Cr.P.C. by the Head Constable Narendra
(PW.13) which is exhibited as Exhibit-P/20. The injury report in respect of
deceased is Exhibit-P/21. The doctor who conducted the postmortem is
Dr.S.K.Jain (PW.9) and his report is Exhibit-P/12.
4. The trial Court on the basis of oral and documentary evidence
on record vide impugned judgment observed that prosecution has failed to
3 CRA-247-1996
prove its case beyond reasonable doubt and acquitted both the accused
persons from the charge under section 302 of IPC by giving benefit of doubt.
5. It is worth mentioning that during pendency of appeal
respondent/accused/Pannalal has expired and, therefore, in compliance of
order of this Court dated 05.8.1997 name of respondent No.1 has been
deleted.
6. Shri Gupta, learned Government Advocate for the
appellant/State has challenged the impugned judgment of acquittal on the
ground that trial Court has failed to properly appreciate the evidence in
proper perspective. It erroneously ignored the evidence of eye witnesses,
namely, Halke (PW.1) & Nonelal (PW.7). It is further submitted that medical
evidence on record has duly supported the prosecution case, which trial
Court failed to appreciate. The trial Court erroneously given the benefit of
doubt to accused persons merely on the basis of minor contradictions in the
statements of eye witnesses, which is not permissible under law. It is also
submitted that allegation against respondent No.2/Paramlal is of giving
'lathi' blows on the back of deceased.
7. Shri Siddharth Datt, learned counsel for the respondent has
supported the judgment passed by the trial Court and claimed dismissal of
this appeal as no injury was found by doctor on the back of deceased.
8. Since during pendency of appeal respondent No.1/Pannalal has
expired and appeal stood abated in relation to him, therefore, this Court in
4 CRA-247-1996
this appeal will dwell upon only in respect of respondent No.2/Paramlal.
9. The question for consideration before this Court is whether the
judgment of trial Court acquitting the respondent No.2 (accused-Paramlal)
by giving benefit of doubt is just and proper in the facts of the case.
10. Considered the arguments of learned counsel for the rival parties
and perused the record as also appreciated the findings recorded by trial
Court in the impugned judgment.
11. Dr.S.K.Jain (PW.9) has stated that deceased had sustained total
eight injuries which are lacerated wounds i.e. on above the left cheek bone,
behind the wrist and thigh and contusion wounds on the left side of right
thigh and two inches below the hips bone and another contusion on the back
side of ribs, sixth injury was abrasion on left knee, seventh injury was
contusion on left arm above the elbow and the eight injury was on chest and
left side of abdomen. He also found that there was no blood in both the lungs
and heart of deceased. There was undigested food in the stomach of deceased
and spleen was in ruptured condition. This doctor opined that death of
deceased was caused due to shock on account of excessive bleeding from
ruptured spleen. In paragraph 7 of the judgment the trial Court has taken note
of aspect that whether the death of deceased was homicidal in nature on
account of rupture of spleen or due to some other reason. In cross-
examination this witness (PW.9) has deposed that there was no injury above
the abdomen and opined that if any person forcefully falls flatways ('pet ke
bal') over any sharp weapon, then there is possibility of spleen rupturing.
5 CRA-247-1996
The trial Court also observed that there are only two eye witnesses and both
of them have not stated that accused persons had given blows on stomach of
deceased. Even in statement of deceased recorded u/s 161 Cr.P.C. (Exhibit-
P/20), which has been treated by the trial Court as dying declaration, he has
not stated that there was any assault on his stomach. The trial Court also
observed that Doctor has not deposed that due to which injury spleen was
found ruptured in the body of deceased. It also observed that it is not clear
from the entire evidence on record that due to which reason the spleen of
deceased got ruptured and there is no other evidence except this for the death
of deceased. Therefore, under such circumstances it cannot be said with
certainty that the death of deceased was homicidal in nature and hence,
prosecution failed to prove beyond reasonable doubt that death of deceased
was homicidal in nature.
12. The trial Court in paragraph 8 of the judgment has also
discussed the statements of eye witnesses who are father and brother of
deceased. It also took note of the aspect that deceased had prior animosity
with accused persons. At the time of assault by accused persons there was no
one and father of deceased (Nanhelal-PW.7) had seen the incident from a
distance of 300 feet. It is also observed that statement of this eye witness is
different from the one stated in report (Exhibit-P/1). The brother of deceased
PW.1 stated in his deposition that he himself had taken cattle to Khirka
whereas such aspect is not mentioned in the FIR (Exhibit-P/1). He mentioned
time of incident in FIR to be 06 p.m. whereas in his Court statements he
stated the same to be 05 p.m. The court also took note of aspect that for
6 CRA-247-1996
villagers difference of one hour timing though of not much importance but
the incident was of winter season i.e. 18.11.1991 when there is early sun set
and it has been admitted by PW.1-Halke that in winter sun sets around 5 pm
to 5.15 pm and there is no road electrical light between Khirka and his home.
Therefore, at Khirka what actually occurred at the time of incident was not
clearly visible either from Mahavir Temple or house of Sahu and as per this
witness he was standing at a distance of 250 ft. from Khirka. Halke (PW.1)
has stated in his statement that he reached the spot to save his brother but on
the other hand he has also stated in paragraph 31 that he could not reach to
the spot. This witness himself stated that he was chased away by the accused.
He also stated that after fleeing away of accused persons he had not gone to
take care of his brother/injured. Such statement appears to be somewhat
unnatural because this witness is real brother of deceased and this witness
also stated in paragraph 33 that daughter of Baretha informed him at his
home that accused persons have assaulted his brother and he is lying near the
temple. If the statement of this witness in paragraph 33 of his deposition is
accepted then Halke (PW.1) cannot be regarded as eye witness. This witness
in paragraph 30 of his deposition has stated that deceased had gone to ease
himself from natural call whereas in paragraph 38 he stated that his brother
was returning from Patera market. Thus, witness is making different
statements. Therefore, the trial Court has not relied on the statements of this
witness.
13. Likewise, the father of deceased namely Nanhelal (PW.7) also
stated in Exhibit-D/1 that incident is of 06 p.m. in evening whereas in Court
7 CRA-247-1996
statement he deposed that incident is of 05.00 p.m. In paragraph 14 this
witness has stated that place where he was standing and between the place in
Khirka where quarrel was going on there was no source of light. Meaning
thereby, this witness could not see the incident. Similarly, in paragraph 26
again this witness says that after the accused went away even then they did
not try to go near Mukundi. Again this conduct is very unnatural that even
when the accused had gone, father would not go to a place which was some
hundred feet away to see his son. This witness in Exhibit-D/1 stated that
daughter of Baretha had informed that accused persons (Pannalal &
Paramlal) have assaulted deceased-Mukundi. Therefore, the trial Court
noticing various discrepancies in the statements of eye witness father of
deceased, namely, Nanhelal (PW.7) and hence, has observed that statement
of this witness is not reliable.
14. The learned trial Court in paragraph 10 has also appreciated the
evidence of Head Constable Narendra (PW.13) who stated that after reducing
report of incident in writing he recorded statement of injured-Mukundi
(deceased) vide Exhibit-P/20 wherein he stated that when he had taken cattle
to Khirka at that juncture accused-Pannalal gave 'Ballam' blow on his temple
and accused-Paramlal gave 'lathi' blows on his back, as a result of which he
became unconscious and later on when got consciousness he found himself
in front of house of accused-Pannalal. The statement of this witness is
doubtful as he stated that he reached on the door of Pannalal at 09.30 pm on
18.11.1991 whereas report was lodged at 08.15 p.m. on 18.11.1991 and
incident is of 06 p.m. on 18.11.1991. Finding various other discrepancies in
8 CRA-247-1996
the statement of witness-Narendra (PW.13) the trial Court also did not find
statement of this witness to be reliable.
15. The learned trial Court also observed that on the basis
memorandum recorded vide Exhibits-P/5 & P/6 the seizure of property
memorandum vide Exhibits-P/7 & P/8 in respect of 'lathi' and 'Ballam' were
prepared and mere finding of blood on 'Ballam' and 'lathi' as per Exhibit-
P/17 without chemical examination whether it was human blood is not
sufficient to connect the accused persons with the crime in question. Such
observation of the trial Court cannot be faulted with.
16. The trial Court in respect of Exhibits-P/20 & P/21 observed that
though it is reflected that accused-Pannalal sustained injuries but Dr.Khatri
(PW.14) on examination of accused-Pannalal found swelling on his shoulder,
which as prosecution proves the presence of accused at the place of incident.
But such contention of prosecution is vague inasmuch as none of the eye
witnesses has stated that deceased-Mukundi had assaulted on accused
persons. On the contrary it has been noticed by the trial Court in paragraph
12 of its judgment that Halke (PW.1) stated that 3-4 hours prior to incident
in question there was quarrel between accused-Pannalal and deceased, in
which, both of them have used 'lathi' against each other and, therefore,
accused-Pannalal might have sustained injuries in such incident and this
aspect is of no use to the prosecution.
17. Thus, the trial Court has not believed the prosecution story and
accordingly by giving the benefit of doubt to the accused persons acquitted
9 CRA-247-1996
them. On close scrutiny of the case, the appreciation of evidence available on
record and arriving at findings recorded by the trial Court appears to be just
and proper in the facts and circumstances of the case.
18. Even otherwise, respondent No.1/Pannalal accused has expired,
who is alleged to have given 'Ballam' blow on temple whereas respondent
No.2/Paramlal is alleged to have 'lathi' blows on back. No injuries have
been found by the doctor on back of deceased which are alleged to be caused
by present respondent No.2/accused-Paramlal.
19. In this regard it would be worth referring to the decision of
Hon'ble Supreme Court in the case of Jafarudheen and others Vs. State of
Kerala, (2022) 8 SCC 440 wherein in paragraph 25 while discussing with the
scope of appeal filed against the acquittal it has been held as under:-
"25. While dealing with an appeal against acquittal by
invoking Section 378CrPC, the appellate court has to
consider whether the trial court's view can be termed as a
possible one, particularly when evidence on record has
been analysed. The reason is that an order of acquittal adds
up to the presumption of innocence in favour of the
accused. Thus, the appellate court has to be relatively slow
in reversing the order of the trial court rendering acquittal.
Therefore, the presumption in favour of the accused does
not get weakened but only strengthened. Such a double
presumption that enures in favour of the accused has to be
disturbed only by thorough scrutiny on the accepted legal
parameters."
20. Likewise, in the case of Kalyan Singh v. State of M.P , (2006) 13
SCC 303 the Hon'ble Supreme Court took similar view in paragraphs 7 & 8
10 CRA-247-1996
held as under:-
"7. The High Court while dealing with the matter, in our considered
opinion, failed to apply the proper tests in deciding a case where a
judgment of acquittal has been recorded. The views of the learned trial
Judge cannot be said to be wholly unsustainable. It is now well known
that if two views are possible, the appellate court shall not ordinarily
interfere with the judgment of acquittal. We do not, however, mean to
lay down the law that the High Court, in a case where a judgment of
acquittal is in question, would not go into the evidence brought on
record by the prosecution or by the State but we would like to point
out that even if the High Court reversed the judgment of acquittal
recorded by the trial court, it is incumbent on the High Court to arrive
at the conclusion that no two views are possible.
8. We, therefore, having regard to the fact situation of the instant case,
are of the opinion that as two views are possible, the High Court
should not have interfered with the judgment of acquittal passed by the
learned Sessions Judge. We, therefore, set aside the impugned
judgment and allow this appeal. The appellant is in jail, he is directed
to be released forthwith if not required in connection with any other
case."
21. For the reasons stated hereinabove, the submissions made by
learned counsel for the appellant/State are not acceptable and the same are
hereby repelled. In view of aforesaid analysis and in aforesaid settled legal
position, no interference in the impugned judgment of acquittal is warranted.
22. In the result, the appeal being sans substance fails and is hereby
dismissed.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
RM
