Satish Kumar Sharma vs Virendra Kumar Kalawat & Others

The appellant has preferred the present appeal against the respondents No.1 and 2 relating to judgment dated 27/01/2007, passed by the JMFC, Karera, District Shivpuri in Criminal Case No.283/2005, whereby the respondents No.1 and 2 have been acquitted from the charges of Sections 323 or 323/34, 294 and 341 of IPC .

(2) Prosecution''s case, in short, is that the appellant filed a criminal complaint against respondents No.1 and 2 that on 23/09/2004, the respondents No.1 and 2 were posted as Assistant Grade II in the Office of BEO and they were giving the orders relating to the duty in election. Such orders were to be distributed up-to 26/09/2004. Since such orders had to be distributed within time and peons were not sincere in distributing of such orders, the complainant- appellant who was the room in-charge took the duty to distribute the dak and, thereafter, on 24/09/2004 he could appear in the office at 11:00 am. The respondent No.1 who met him at the gate of BEO office tried to tear various duty certificates of the complainant and thereafter, both the accused abused him with obscene words and assaulted him with kicks and fists. He sustained several injuries on his head, hands, back, thigh and legs. The respondents No.1 and 2 also assaulted him with sticks but he could save himself by picking up a chair in the hand. The incident was seen by Vinod Kumar Sharma (PW-1) and Smt. Pushpa Sharma (PW-3) wife of the complainant. When the complainant tried to leave the office to visit the police station for lodging the FIR he was stopped by the respondents No.1 and 2. Therefore, the complainant had produced his complaint before BEO, Karera at about 11:45 am. However, no action was taken by his superior officer and therefore, on 25/09/2004, he gave a complaint to the SHO, Karera and SDM, Karera. Since no action was taken either by police or higher authorities, a complaint was filed.

(3) The respondents No.1 and 2 denied the charges. They abjured their guilt. In defence, Mr. S.P.Dubey (DW-1) was examined.

(4) The trial Court after considering the evidence adduced by the parties, dismissed the complaint and acquitted the respondents No.1 and 2 from all the charges. (5) I have heard the learned counsel for the parties at length.

(6) In the present case, Vinod Kumar Sharma (PW1), Satish Kumar Sharma (PW2) and Smt. Puspa Sharma (PW3) were examined as eye-witnesses, who have reproduced the story told by the complainant Satish Kumar Sharma. If the evidence of these persons is considered then they have changed the spot of the incident. According to the complaint, the incident took place in front of the office when the complainant was entering into the office whereas according to

all these three witnesses the incident took place within the office after entering of the complainant Satish Kumar Sharma in the office. According to Satish Kumar Sharma, respondent Virendra sought an explanation as to why he was late and, thereafter, when he gave the explanation then respondent Virendra told that it was the duty of the peon and he himself could not accept the duty for distribution of dak and thereafter, the respondents No.1 and 2 abused him with obscene words. Since it would be apparent from the evidence given by these witnesses that the incident took place within the office and hence, it cannot be said that the incident took place at a public place. Consequently, if the respondents No. 1 and 2 have abused with obscene words no offence under Section 294 of IPC is made out against respondents No.1 and 2. The trial Court has rightly acquitted the respondents No. 1 and 2 from the charge of Section 294 of IPC.

(7) The witnesses have stated that when the complainant tried to visit the police station to lodge an FIR the respondents No.1 and 2 did not permit him to go and he was wrongfully restrained. However, if FIR Ex.P1 and complaint Ex.P2 are considered, then there is no allegation in the documents that the respondents No. 1 and 2 have wrongfully restrained the complainant when he was going to the police station. Hence, the evidence given by these witnesses relating to wrongful restrainment appears to be an allegation which was mentioned as afterthought. The trial Court has rightly acquitted the respondents No. 1 and 2 from the charge of Section 341 of IPC.

(8) The complainant Satish Kumar Sharma, his witness Vinod Kumar Sharma (PW-1) and his wife Smt. Pushpa Sharma (PW-3) have stated that the respondents No.1 and 2

assaulted him first by kicks and fists, thereafter by sticks, however, he could save himself by raising a chair. In these circumstances, if the complainant was deprived of lodging an FIR within the reasonable time, then he could give complaint to the higher authorities on the same very day. On the other hand, a complainant Ex.D1 is proved by the respondents No. 1 and 2 which was given by them to BEO. In that complaint Ex.D1, it is mentioned that the complaint was filed on 24/09/2004 and it was mentioned by the officer that an explanation of Satish Kumar Sharma be called and possibility cannot be ruled out that FIR Ex.P1 and complaint Ex.P2 were lodged by the complainant as a counter-blast to meet out the complaint made by respondents before the superior officer. The complainant had lodged a complaint before SHO, SDM and SP, Shivpuri but no reason has been assigned by the complainant as to why he did not make any complaint before the superior officer who was present in the office at that time. Also, the complainant did not mention the name of the witness Vinod Kumar Sharma and his own wife Smt. Pushpa Sharma in those complaints Ex.P-1 and Ex.P-2 that those were present at the spot when the quarrel had taken place. The reasons mentioned by Vinod Kumar Sharma and Smt. Pushpa Sharma relating to their visit to the office of the complainant appears to be fishy. When the complainant visited the office to perform his duty up-to 5:00 pm in the evening then it was not possible for him to keep the keys of his house with him and his wife was required to visit the office to get the keys. Similarly, Vinod Kumar Sharma could not state any acceptable reason to visit the office on that particular time. Since names of these witnesses were not mentioned in the FIR Ex.P1, it appears that those were the

cooked witnesses just to support the complainant in the matter.

(9) Also, no corroboration could be received by complainant Satish Kumar Sharma by the medical evidence. If all the witnesses have stated that Satish Kumar Sharma had sustained injuries then there was no problem for him to show himself to the doctor for examination of injuries. Even after sending a complaint Ex.P1 to SHO Karera, he could get himself examined by a doctor and medico-legal report could be produced. In absence of any MLC report, the evidence advanced by the complainant and his witnesses cannot be accepted.

(10) In the present matter, in absence of any MLC report where the FIR was lodged with a delay of one day, the case of the complainant was doubtful. Looking to complaint Ex.D1 made by the respondents, it appears that the complainant himself misbehaved with his superiors and to save himself he lodged a complaint before SHO, Karera as a counter-blast to the complaint Ex.D1. Under these circumstances, the entire case was highly doubtful. The trial Court has rightly acquitted the respondents No.1 and 2 from the charge of Sections 323 or 323 /34 of IPC .

(11) On the basis of aforesaid discussion, there is no substance in the appeal filed by the appellant. Consequently, the same is hereby dismissed.

(12) A copy of the judgment be sent to the Court below along with its record for information.