Madhya Pradesh High Court
Narayandas Kushwaha @ Lallu Bhaiya vs The State Of Madhya Pradesh on 29 May, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
CRIMINAL APPEAL No. 593 of 2010
BETWEEN:-
NARAYANDAS KUSHWAHA @ LALLU
BHAIYA S/O LAXMAN PRASAD
KUSHWAHA, AGED ABOUT 30 YEARS,
VILL. KANDOHA PS BUDHAR DISTT.
SHAHDOL (MADHYA PRADESH)
.....APPELLANT
(BY SHRI D. N. SHUKLA - APPELLANT)
AND
THE STATE OF MADHYA PRADESH TH. PS
BUDHAR DISTT. SHAHDOL DISTT.
SHAHDOL (MADHYA PRADESH)
.....RESPONDENT
( BY MS.NALINI GURUNG - PANEL LAWYER
FOR THE RESPONDENT/STATE)
_______________________________________________________________
RESERVED ON : 15/05/2024
PRONOUNCED ON : 29/05/2024
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This appeal having heard and reserved for judgment, coming on for
pronouncement on this day, the court passed the following:
JUDGEMENT
Appellant has preferred this criminal appeal under Section 374(2) of
Code of Criminal Procedure, 1973, challenging judgment dated 11.03.2010
passed by Special Judge, Shahdol in S.C.No.50/09 whereby appellant has been
convicted under Section 354 of the IPC and sentenced to undergo R.I. for six
months and with fine of Rs.500/- with default stipulation.
2. Prosecution story in brief is that:
"3.vfHk;kstu dk izdj.k la{ksi esa bl izdkj gS fd ?kVuk fnukad
dks ?kVuk ds le; Qfj;kfn;k [kSjgk cktkj ls okil ?kj ykSV jgh
Fkh] rks jkLrs esa vLirky ds ikl vfHk;qDr lk;fdy ls vk;k mldk
gkFk idM+ fy;k] mlls v'yhy ckrsa dh vkSj mlds lhus esa gkFk
yxk;k] mls /kedh nh fd og mldh ''kknh ugha gksus nsxk] mls
ftUnk tyk nsxk] ml le; mldh lgsyh lfjrk lkFk esa FkhA mlus
chp cpko fd;kA lfjrk ds lkFk gh Qfj;kfn;k vius ?kj xbZ vkSj
firk dks lkjh ckrsa crkbZA
4- Qfj;kfn;k us vius firk ds lkFk iqfyl pkSd [kSjgk igqapdj
iz0ih02 dh fyf[kr fjiksVZ izLrqr dh] ftlds vk/kkj ij [kSjgk pkSdh
esa vi0dz0&ih02 dh fyf[kr fjiksVZ izLrqr dh] ftlds vk/kkj ij
[kSjgk pkSdh esa vi0dz0&0@8@09 izFke lwpuk fjiksVZ iz0ih03
fy[kdj iathc) fd;k x;kA vly vijk/k dk;eh gsrq iz0ih03 dh
fjiksVZ Fkkuk cq<+kj Hksth xbZ] tgka izFke lwpuk fjiksVZ iz0ih010
fy[kdj vijk/k dz0&195@09 iathc) fd;k x;kA iz0ih04 dk
vkosnu nsdj Qfj;kfn;k dks esMhdy ijh{k.k ds fy;s Hkstk x;k]
tgka Mk0 xkSre us mldk ijh{k.k dj iz0ih05 dh fjiksVZ nhA
vuqla/kku ds nkSjku iqfyl us ?kVuk LFky dk fujh{k.k dj uD'kk
ekSdk iz0ih08 cuk;k] Qfj;kfn;k dk tkfr izek.k i= iz0ih0 izkIr
fd;k] vfHk;qDr dks fxjdj iapukek iz0ih09 cuk;k] mlds dCts ls
mldh lk;fdy tIr dj iapukek iz0ih07 cuk;k] lk{khx.k ds
dFku vafdr fd;s] iz0ih06& lfjrk] iz0Mh01& Qfj;kfn;k
iz0Mh02&n'kjFk vkSj iz0Mh03&e/kqdj iztkifr ds dFku crk;s x;s
gSA vuqla/kku mijkar Fkkuk cq<+kj esa vfHk;ksx i= U;kf;d eftLVªsV
izFke Js.kh cq<kj ds U;k;ky; esa izLrqr fd;k x;k tgka bls
vk0i0dz&519@09 ds :i esa iathc) fd;k x;k] mikiZ.k
mijkar ;g izdj.k fnukad 29-05-09 dks bl U;k;y; esa izkIr
gqvkA"
3. After case was committed to the trial court, the trial court framed charges
against appellant & the same were read over to the appellant. The appellant
pleaded not guilty & claimed to be tried for the offences charged with. To prove
the charges against appellant, prosecution adduced oral as well as documentary
evidence. After completion of prosecution evidence, appellant was examined u/s
313 of CrPC. The appellant pleaded total denial & stated that he has been
falsely implicated. After evaluating the evidence that came on record, the
learned trial court vide impugned judgment convicted & sentenced appellant as
above.
4. Learned counsel for the appellant has submitted that impugned judgment
is bad in law, illegal, incorrect & improper. Learned trial court has erred in
placing reliance on depositions of prosecution witnesses as the same are full of
contradictions, omissions, discrepancies, inconsistencies & improvements. The
evidence of prosecution witnesses does not fully support/corroborates evidence
of each other. Prosecution has not examined independent witnesses to prove its
case. Prosecution witnesses are unreliable. Trial court has not appreciated
prosecution evidence appropriately. Defence version ought to have been
accepted. It is also urged that Trial court has acquitted appellant of offence
under Section 3(i)(xi) of SC/ST(PA) Act and for offence under Sections 294 and
506 of IPC. But it has convicted appellant under Section 354 of IPC in same
said of evidence which is not possible. Alternately, it is also urged that fine
amount may be enhanced and appellant be sentenced with period already
undergone. Hence, trial court has erred in convicting & sentencing appellant as
above. Alternately, it is also prayed that sentence imposed by the trial court is
disproportionate to the offence proved. Looking to the age of appellant as well
as other circumstances of the case, trial court should have extended benefit of
section 360 of CrPC/Probation of Offenders Act. Therefore, appeal filed by the
appellant be allowed, impugned judgment be set aside & he be acquitted.
5. Learned counsel for the respondent/state has submitted that prosecution
has proved its case by leading cogent evidence & has proved guilt of the
appellant beyond reasonable doubt & there are no grounds to interfere with the
same. The trial court has rightly convicted & sentenced the appellant, as above,
hence, appeal is liable to be dismissed.
6. I have heard learned counsel for the appellant/state & have
perused/examined record of trial court & grounds taken by the
appellant/accused in the appeal memo minutely & carefully.
7. So far as offence under Section 354 of IPC of appellant is concerned,
perusal of prosecution evidence reveals that prosecution case primarily rests on
testimonies of eye-witnesses etc. & documentary evidence.
8. Prosectrix has deposed in her examination-in-chief as under :
"¼1½ EkSa --------tkfr dh gwWA vkjksih ukjk;.k dks tkurh gwW og dq'kokgk tkfr
dk gS] vuq0tkfr ;k vuq0tutkfr dk ugha gSA vkjksih esjs eksgYYsk esa gh
jgrk gSA bl izdj.k esa foospuk ds nkSjku iqfyl us esjk tkfr izek.k i=
fy;k Fkk] tks vuq0foHkkxh; vf/kdkjh lksgkxiqj }kjk tkjh fd;k x;k gS]
ftlds vuqlkj eS --------tkfr dh gwWA tkfrizek.k i= iz0ih01 gSA
¼2½ ?kVuk 23-03-09 dh gSA eSa vius xkao ls [kSjgk pwM+h ysus ds fy, tk
jgh FkhA esjs lkFk esjh lgsyh lfjrk lkgw Fkh vkSj mldk HkkbZ J`o.k dqekj
lkgw Hkh ge yksxksa ds lkFk x;k FkkA tc ge yksx vLirky ds ikl tgka
ij iqfyl gS] ogka igaqps] mlh le; vkjksih ihNs ls lk;fdy ls vk;k vkSj
eq>s NsM+us yxk esjk gkFk idM+k ]esjs lhus esa gkFk yxk;k fQj eSaus okil
ykSVdj vius ikik dks ?kVuk crkbZ FkhA eSa tc [kSjgk ls ykSV jgh Fkh rks
ykSVrs le; vkjksih us ;g dke fd;k FkkA
¼3½ vkjksih eq>s xkyh ns jgk Fkk vkSj dg jgk Fkk fd esjs ls ckr D;ksa ugha
djrh gks] cksy jgk Fkk fd esjk D;k dj yksxh rqeA vkjksih eq>ls dg jgk
Fkk fd rqEgkjh 'kknh ugha gksus nwaxk] rqEgsa ftUnk tyk nwaxkA esjh lgsyh us
vkjksih ls esjk gkFk NqMok;k Fkk blds ckn esa ?kj vkbZ FkhA ?kj vkdj
vius firk dks lkjh ckr crkbZ FkhA fQj eS vius ikik ds lkFk fjiksVZ
fy[kkus Fkkuk [kSjgk xbZ Fkh] ykSVus ij ml fnu jkr esa vkjksih fQj
gekjs ?kj vk;k FkkA rFkk esjs ?kj ds njokts ij tksj&tksj ls ykr ekj jgk
Fkk rFkk dg jgk Fkk fd n'kjFk eknjpksn ?kj ls fudy esjk D;k dj
ysxkA vkSj dg jgk Fkk fd ------ eknj pksn fjiskVZ okil ys yks ugha rks ?kj
esa vkx yxk nwaxkA rsjh yM+dh dks mBk ys tkmaxk A gYyk gksus ij esjs
pkpk ------- ogka ij vk x;s Fks] muds vkus ds ckn vkjksih ogka ls pyk x;k
FkkA
¼4½ Fkkus esa eSus fyf[kr fjiksVZ nh FkhAfyf[kr fjiksVZ iz0ih02 gSA ftl ij ,
ls, esjs gLrk{kj gSA esjh fyf[kr fjiksVZ ds vk/kkj ij pkSdh [kSjgk esa izFke
lwpuk fjiksVZ fy[kh xbZ FkhA izFke lwpuk ds vk/kkj ij pkSdh [kSjgk esa
izFke lwpuk fjiksVZ fy[kh xbZ FkhA eq>s cq<+kj Fkkus Hkstk x;k Fkk ogak ls
fQj eq>s cq<+kj vLirky Hkstk x;k Fkk tgka esjk fpfdRlh; ijh{k.k gqvk
FkkA
¼5½ iqfyl okys ckn esa tkap ds fy, vk, FksA eSus iqfyl dks ?kVuk LFky
'crk;k Fkk iqfyl }kjk esjs crkus ij uD'kk eksdk cuk;k x;k FkkA"""
9. Perusal of deposition of father of prosecutrix (PW-2), mother of
prosecutrix (PW-6) reveals that they have also deposed almost identically to that
of prosecutrix.
10. Now questions arises as to whether prosecution witnesses are wholly
reliable and trustworthy.
11. I have gone through cross-examination of above prosecution witnesses
and cross-examination of above prosecution witnesses reveal that there are
some minor contradictions, omissions and discrepancies in their Court
testimonies and police statements. But in this Court's considered opinion, they
are not of such nature so as to render above prosecution witnesses wholly
unreliable and untrustworthy.
12. I have also gone through para 11 of PW-1, Para 4 and 7 of PW-2 , para 6
of PW-3 and para 2 and 3 of PW-6 but in this Court's opinion from defence
taken by appellant therein and from evidence on record otherwise also, it cannot
be concluded that on account of the same, prosecutix has falsely implicated
appellant in the instant case.
13. Perusal of Ex.P/2, P/3 and P/10 reveal that FIR has been lodged
immediately after the incident and there are no material contradictions,
omissions and discrepancies in prosecutrix's testimony as well as FIR. Thus,
testimony of prosecutrix also stands corroborated from FIR.
14. In this Court's considered opinion, prosecution witnesses are wholly
reliable and trustworthy. From evidence on record it is not established that
appellant has been falsely implicated in the instant case. No previous rivalry and
animosity between appellant and prosecutrix is established from evidence on
record.
15. Further, Hon'ble apex court in State of West Bengal Vs. Kailash
Chandra Pandey, (2014) 12 SCC 29, has observed in para 13 that it is needless
to reiterate that appellate court should be slow in reappreciating the evidence.
This court time & again has emphasised that the trial court has the occasion to
see the demeanour of the witnesses & it is in a better position to appreciate it,
the appellate court should not lightly brush aside the appreciation done by the
trial court except for cogent reasons.
16. Hence, in view of discussion in the foregoing paras & after going through
the evidence on record & having evaluated/appreciated the same, in this court's
considered opinion, learned trial court has appropriately appreciated the overall
evidence on record & has drawn correct conclusions & there is no illegality or
perversity in the findings of learned trial court concerning appellant/accused's
conviction for above offence/offences. Therefore, grounds taken by the
appellant in appeal memo with respect to conviction are not acceptable &
hence, rejected. Hence, learned trial court's findings & judgment with respect to
appellant/accused's conviction for aforesaid Section 354 of IPC
offence/offfences are hereby affirmed.
17. So far as sentenced is concerned, learned trial court has sentenced
appellant under Section 354 of IPC with R.I. for six months and fine of Rs.500/-
with default stipulation. There are no criminal antecedents of appellant.
Appellant had remained in custody from 03.04.2009 to 09.04.2009. Incident is
dated 24.03.2009.
18. Hence, in view of above, ends of justice would be served if, appellant is
sentenced with period already undergone and with enhanced fine.
19. Hence, in view of above discussion in forgoing para, appeal filed by the
appellant is partly allowed and he is sentenced under Section 354 of IPC with
period already undergone and with fine of Rs.3,000/- and in default one month
simple imprisonment.
20. In view of discussion in the foregoing paras, appeal filed by the appellant
is partly allowed to the extent as indicated hereinabove.
21. Present appeal is disposed of accordingly.
(ACHAL KUMAR PALIWAL)
JUDGE
sm
