K.S. Chauhan, J.@mdashThis criminal appeal u/s 378(3) of the Code of Criminal Procedure has been preferred by the State of Madhya Pradesh being aggrieved by the impugned judgment dated 30/4/1998 passed by 4th the Additional Sessions Judge, Sagar in Criminal Appeal No. 148/1997 reversing the judgment, finding and sentence dated 6/10/1997 passed by the Judicial Magistrate First Class, Sagar in Criminal Case No. 215/1995, and acquitting the respondents from offence u/s 325/34 of IPC.
2. The prosecution case in short is that on 24/9/1989 when complainant Lajja Shankar was coming back to his house carrying grass, respondent No. 3 Baldwan Singh met him on the way. He used filthy language against him. He rushed to inflict ''Katarna'' blow to him but he ran away and fell down in front of his house, where Baldwan Singh Criminal Appeal No. 2389/199Criminal Appeal No. 2389/1999 inflicted ''Katarna'' blow in his right hand and caused injury. Ramsingh and Malkhan Singh also caused his marpeet by lathi on account of which he sustained injury in his leg. On the same day he lodged the report at Police Station Naryawali, which was recorded in Roznamcha Sanha No. 689. He was sent for medical examination. Dr. G.S. Choubey (PW-6) examined him and found injuries as mentioned in the medical report Ex.P-7. His X-ray was taken by Dr. V.K.Mishra (PW-7), who found dislocation of metacarpal phalergial joint of third metacarpal. He also found fracture of malleolus tibia. On the basis of medical and X-ray report, Crime No. 146/1989 under Sections 325/34 IPC was registered against the respondents at Police Station Naryawali. Spot map was prepared. The statements of witnesses were recorded. After completing the usual investigation, a charge sheet was filed in the Court of Judicial Magistrate First Class, Sagar.
3. Respondents were charged under Sections 325, 325/34 of IPC. They denied the guilt and claimed to be tried, mainly contending that they have been falsely implicated. The prosecution examined as many as seven witnesses and the respondents also examined two witnesses. After appreciating the evidence, the trial Court found them guilty u/s 325 of IPC and sentenced to R.I. for two years with fine of Rs. 200/-each, in default of payment of fine, additional R.I. for 15 days. Being aggrieved by the judgment, finding and sentence, 4th respondents preferred criminal appeal No. 148/97 before the Additional Sessions Judge, Sagar, which was allowed and the respondents were acquitted from the charge leveled against them. Being aggrieved by the impugned judgment of acquittal, this instant appeal has Criminal Appeal No. 2389/199Criminal Appeal No. 2389/1999 been preferred by the State of Madhya Pradesh after taking leave from this Court on the grounds mentioned in the memo of appeal.
4. Shri Jaideep Singh, learned Government Advocate appearing on behalf of the appellant/State submitted that the lower Appellate Court has not appreciated the evidence in proper perspective. The evidence of Lajja Shankar (PW-1), Anita Bai (PW-2) and Kamal Rani (PW-3) is against the respondents. Their evidence is corroborated by medical evidence. Thus there is sufficient evidence against the respondents, they were also convicted by trial Court, but lower Appellate Court has committed an illegality in acquitting the respondents. The finding of acquittal is erroneous, which deserves to be set aside and the respondents deserve to be punished.
5. On the contrary, Shri Sunil Choubey, learned Counsel appearing on behalf of the respondents supported the impugned judgment, mainly contending that there is discrepancy in the statements of prosecution witnesses and only interested witnesses have been examined. Doctors have also opined that the injuries may be caused by fall, hence lower Appellate Court has rightly acquitted the respondents, which does no call for any interference.
6. The main point for consideration by this Court is that whether the lower Appellate Court has committed an illegality in acquitting the respondents from the charge u/s 325/34 of IPC reversing the judgment, finding and sentence passed by the trial Court.
7. Lajja Shankar (PW-1) is an injured witness. He has given evidence that when he was returning back to his house carrying grass, respondent Baldwan Singh met him on the way and abused him. He tried Criminal Appeal No. 2389/199Criminal Appeal No. 2389/1999 to run away, but Baldwan Singh inflicted ''Katarna'' blow from behind, which hit at his right hand, on account of which he sustained injury. Other respondents Ramsingh and Malkhan Singh were also there. They inflicted lathi blow to him. When he raised alarm his wife Kamal Rani and daughter Anita Bai came there and intervened the matter. Thereafter he lodged the report at Police Station Naryawali from there he was sent to Civil Hospital, Sagar where he remained hospitalized for 17-18 days.
8. Anita Bai (PW-2) and Kamal Rani (PW-3) both have supported the evidence of Lajja Shankar (PW-1). They have clearly stated that respondent-Baldwan inflicted ''Katarna'' blow and respondents Ramsingh and Malkhan Singh inflicted lathi blow to Lajja Shankar, on account of which he sustained injuries.
9. In spite of piercing cross-examination of Lajja Shankar (PW-1), Anita Bai (PW-2) and Kamal Rani (PW-3) nothing has been elicited to discredit their testimony.
10. There is ample evidence that the respondent Baldwan inflicted ''Katarna'' blow and respondents Ramsingh and Malkhan Singh inflicted lathi blow to Lajja Shankar, due to which he sustained injuries. The report was immediately lodged at Police Station Naryawali, which was recorded in Roznamcha Sanha and Lajja Shankar was sent for medical examination on the same day.
11. Dr. G.S. Choubey (PW-6) medically examined him and found the following injuries on his person:
(i) Aulsion of right ring finger nail, bleeding.
(ii) Lacerated wound 1 x 1 x .5 cm on right leg.
(iii) Swelling in the left leg.
Criminal Appeal No. 2389/1999 Criminal Appeal No. 2389/1999 According to his opinion, injuries could have been caused by hard and blunt object within six hours. Medical report is Ex.P-7, which contains his signature. Thus, this witness found injuries on the person of Lajja Shankar on that day.
12. Dr. V.K. Mishra (PW-7) has stated that Lajja Shankar was admitted in the Civil Hospital, Sagar and X-ray of his right hand was taken. Accordingly dislocation of metacarpal phalergial joint of third metacarpal was found. The report is Ex.P-8, which contains his signature. X-ray of his left ankle was also taken wherein fracture of malleolus tibia was found. The X-ray reports are Ex.P-9 and Ex.P-10. Thus this witness found dislocation and fractures as stated hereinabove.
13. No doubt these witnesses have admitted that the injuries to Lajja Shankar may be caused by fall, but there is sufficient evidence that the respondents caused these injuries to Lajja Shankar. In such circumstances, it cannot be accepted that Lajja Shankar sustained these injuries by fall.
14. There are no material contradictions and omissions in the statements of prosecution witnesses, hence no question to disbelieve them. Merely relationship of witnesses is not a ground to discard their evidence. Moreover, the incident being of day-time before the house of Lajja Shankar, there is every possibility that his wife Anita Bai and daughter Kamal Rani have seen this incident. Their evidence being quite natural and probable inspires confidence. There is nothing to disbelieve the statement of injured witness Lajja Shankar and eye witnesses Kamal Rani and Anita Bai. Their evidence further finds support from medical Criminal Appeal No. 2389/199Criminal Appeal No. 2389/1999 evidence. By this evidence the offence is proved against the se respondents.
15. The respondents have examined Nanha Bhai (DW-1) and Prakash (DW-2). According to their evidence, Nanha Bhai was beaten by Lajja Shankar prior to eight days of this incident. The report was also lodged by him but no action was taken by concerned police. Afterwards they have been falsely implicated by Lajja Shankar in this case. But this defence is not tenable for the simple reason that no any such report was produced. No injury report, if any, produced. Lajja Shankar did not lodge the report against Nanha Bhai. If he wanted to lodge false report, then Nanha Bhai might have also been implicated in this case. Hence the defence of respondents that they have been falsely implicated cannot be accepted.
16. No doubt the prosecution has left an infirmity in the case by not examining the concerned Police Officer, who recorded the Rojnamcha Sahna and FIR, but that infirmity is not so serious as to affect the merits of the case. This infirmity alone cannot be a ground to acquit the respondents.
17. On perusal of the impugned judgment passed by the learned lower Appellate Court, it is manifestly clear that the learned lower Appellate Court has not appreciated the evidence in proper perspective. The Appellate Court has given its finding merely on the basis of surmises and conjectures, which is unsustainable in law hence the finding of acquittal recorded by the lower Appellate Court deserves to be set aside and the respondents are found guilty u/s 325/34 of IPC. Criminal Appeal No. 2389/199Criminal Appeal No. 2389/1999
18. Consequently, this appeal succeeds and is allowed. The impugned judgment of acquittal dated 30/4/1998 passed by the lower Appellate Court in Criminal Appeal No. 148/1997 is hereby set aside and the finding of guilt recorded by the trial Court is hereby affirmed. The Respondents Ramsingh, Malkhan Singh and Baldwan Singh are convicted u/s 325/34 of IPC and sentenced to R.I. for six months with fine of Rs. 1,000/-each, in default of payment of fine they shall undergo S.I. for one month each. Out of the fine Rs. 2,000/-be paid to Lajja Shankar S/o Barelal R/o Village Belai Guru, PS Naryawali by way of compensation u/s 357(1) of Cr.P.C. The respondents are on bail. Their bail bonds are cancelled. They be directed to surrender before the Chief Judicial Magistrate, Sagar on 28/8/2009 for serving out the remaining part of sentence.
