State of Madhya Pradesh vs Manoj

A.K. Shrivastava, J.—Feeling aggrieved by the judgment of absolvitur dated 26.03.2009 passed by learned Sessions Judge, Sagar (M.P.) in Sessions Trial No. 459/2008 acquitting the respondent-accused from the charge punishable u/s 307 IPC, the State of Madhya Pradesh has preferred this appeal after obtaining leave to file appeal u/s 378(1) of the Code of Criminal Procedure, 1973. On bare perusal of the order-sheet dated 13.7.2009 this Court finds that leave to file appeal was granted and appeal was admitted for hearing and it was further directed to issue bailable warrant of Rs. 20,000/- for the production of the accused-respondent in the Registry of this Court on 7.12.2009. Eventually, the bailable warrant was issued against the accused-respondent but for the last four years it could not be served upon him despite it was sent repeatedly. Thus, neither the accused submitted the bail bond nor appeared before the Registry of this Court. Since repeatedly the bailable warrants which were being sent to him were returning back with an endorsement that he is absconding, we thought it apposite to hear the matter finally and hence, yesterday when the case was called for hearing, we directed learned Public Prosecutor to come prepared for hearing and directed to list the matter today. Today, we have heard the learned Public Prosecutor and we have also gone through the record.

In brief, the case of the prosecution is that the complainant/injured Kamlesh (hereinafter referred to as "the complainant") is a labourer. On 2.12.2006, the accused came at 8 p.m. at the place of the injured and asked him that he will deploy him as labourer and he will earn at least Rs. 80/- per day. At that juncture, the mother and the wife of the complainant were present in the house. Thereafter, the complainant along with the accused went firstly to Rahatgarh and thereafter on the insistence of the accused they had gone at 12 in the night nearby the bank of Beena river. It is the further case of the prosecution that the accused asked the complainant to pick up the pistol, upon which the complainant told that he cannot pick it up. Thereafter, it is said that again the accused-respondent interacted with him and said that his hand is quite long and therefore, after bending his body in the ditch he may be able to pick up the pistol. Thereafter, it is said that accused caught hold of one hand of the complainant and he (complainant) bent to pick up the pistol and at that juncture in order to kill him, the appellant pulled his hand forcibly as a result of which he (complainant) fell in a ditch having the depth of 60-70 feet. According to the prosecution, the injured-complainant received several injuries on his waist, hands and legs on account of his fall in the ditch.

It is the further case of the prosecution that the introduction between the complainant and the accused took place only 4-5 days earlier to the incident and during this period the accused used to interact with the wife of the complainant when she was alone in her house. This attempt of the accused was not being liked by the complainant and he asked him not to meet with his wife and therefore, according to the prosecution this was a motive to make an attempt to commit murder of the complainant.

It is the further case of the prosecution that on 3.12.2006 the mother of the complainant Mishribai (PW-4) reported the matter to Police Station Rahatgarh and informed that her son Kamlesh (injured) is lying in injured condition nearby the bank of Beena river. This information was reduced in Roznamcha No. 96 by Head Constable Jugal Kishore. On the basis of this Roznamcha, criminal law was triggered and set in motion. The investigating agency along with police force proceeded to the spot where they found the injured with several injuries on his body lying nearby the bank of Beena river. He was uplifted and was sent to Government Hospital, Rahatgarh from where he was referred to Sagar and ultimately from Sagar he was sent for further treatment at Government Hamidia Hospital at Bhopal.

In furtherance to its investigation, the Investigating Officer K.P.S. Ben, Assistant Sub-Inspector (PW-11) went to the Government Hamidia Hospital and recorded the statement of injured Kamlesh. After the investigation was over a charge-sheet was submitted in the committal Court which committed the case to the Court of Session where the accused was tried.

The learned Trial Judge on the basis of the averments made in the charge-sheet, framed the charge punishable under Sections 307 IPC against the accused-respondent, which he denied and requested for the trial.

In order to bring home the charge, the prosecution examined as many as 11 witnesses and also placed Ex.P.-1 to P.-7C, the documents on record. The defence of the accused-respondent is of false implication and same defence he set forth in his statement recorded u/s 313 Cr.P.C. He also raised a specific defence that because the injured is unnecessarily creating doubt upon his character and is under impression that he is having some relationship with his wife and therefore, he has been falsely implicated. However, in support of his defence he did not choose to examine any witness.

Learned Trial Judge on the basis of the evidence placed on record came to hold that the prosecution has utterly failed to prove beyond reasonable doubt the charge u/s 307 IPC against the respondent-accused and hence, acquitted him. In this manner, this appeal has been filed by the appellant-State of M.P. after obtaining leave to file appeal.

We have heard Shri Mishra, learned Public Prosecutor and we have also thoroughly gone through the record. Nobody is appearing for the respondent. We have already noted down in the order-sheet as well as in para 2 of this judgment that why we are hearing the appeal in absence of the accused/respondent. Having heard learned Public Prosecutor we are of the view that this appeal deserves to be dismissed.

In the present case, the first document on the basis of which the criminal law was triggered and set in motion is the Roznamcha report No. 96 (Ex.P.-7C) which was recorded by Head Constable Jugal Kishore Mishra (not examined) at 9.10 a.m. on 3.12.2006 at Police Station Rahatgarh. This document has been proved by Assistant Sub-Inspector K.P.S. Ben (PW-11). On bare perusal of this document we find that Mishribai (PW-4) who is the mother of the injured-complainant reported the matter to the police that his son is lying in unconscious condition nearby the bank of Beena river. It has also been mentioned in it that he is unable to speak. Thereafter, on 3.12.2006 at 11 a.m. the police party proceeded towards the spot and found that the injured was lying in unconscious condition nearby the bank of Beena river and he was unable to speak. Thus, it is proved that on 3.12.2006 when Mishribai (PW-4) first saw his son (injured) lying in unconscious condition, he was unable to speak and thereafter, police party who had arrived at the spot also found that the injured is lying in unconscious condition and was unable to speak. In this regard, the Roznamcha Ex.P./6C is on record and we have gone through it. Hence, according to us, till 3.12.2006 there was no evidence available with the prosecution that who had thrown the injured in the ditch of the bank of Beena river.

Thereafter, a U-turn was taken and by interpolating the very important document Dehati Nalishi (Ex.P.-1) and a new story was developed that on 2.2.2007 at 23.45 hours a Dehati Nalishi was lodged by the complainant/injured, accusing the accused-respondent. Upon microscopic examination of this document we find that in order to bring the respondent within the clutches of Section 307 IPC this document has been manufactured. On bare perusal of this Dehati Nalishi (Ex.P.-1) we find that firstly the date ''3.12.2006'' was mentioned in front of the column of the date of incident and time, but, by overwriting it repeatedly the figure "3" has been changed to "2" which is quite apparent from the naked eye and it becomes more clear by examining this figure with the aid of magnifying glass. Not only this, in front of the column of the date and time of the information, the date ''2.2.2007 at 23.45 hours'' has been mentioned. Not only this, if we further X-ray this document we find that in the middle where the description of the depth of the ditch has been mentioned, earlier it was mentioned as "10-20" feet, which has been corrected to "60-70" feet by repeated strokes of the pen and that too by different ink. This interpolation is seen by naked eye but we have also examined these figures by magnifying glass also and we find that by interpolating the figure ''10-20'' feet by overwriting, it has been written as "60-70" feet. Thus, according to us, the entire case of the prosecution is based upon concoction.

On bare perusal of the aforesaid two documents Ex.P.-6C and P-7C we find that till 9.10 a.m. of 3.12.2006 nobody informed the investigating agency that incident had occurred and injured is lying nearby the bank of Beena river. Indeed, the case of the prosecution has become self-contradictory because if the Dehati Nalishi (Ex.P.-1) which is said to have been lodged by injured himself if is taken to be true, then the matter was reported on 2.12.2006 by injured-complainant Kamlesh in the Police Station, but, according to Ex.P-7C which is dated 3.12.2006 at 9.10 a.m., we find that in the Roznamcha the information has been given by the mother of the injured Mishribai that she has found her son lying in injured condition nearby the bank of Beena river and he was unable to speak. In Ex.P-6C which is another Roznamcha, it has been mentioned that police party proceeded towards the spot and found that the deceased was lying in unconscious condition and he was unable to speak. Thus, if we keep these two documents Ex.P-6C and P-7C in juxtaposition to Dehati Nalishi (Ex.P-1) it becomes luminously clear like a noon day that the case of the prosecution is self-contradictory and therefore, benefit of doubt should always be given to the accused.

Admittedly, the case diary statement of injured Kamlesh was written after two months of the incident since it was recorded on 4.2.2007, although the date of incident is in between the night of 2nd and 3rd December, 2006. True, during this period the injured was confined to the hospital but it has come in his evidence that he came in his senses after one month and therefore, why his case diary statement could not be recorded earlier, there is nothing on record. Similarly, why the prosecution has recorded the statement of Mishribai (PW-4) after two months, which was also recorded on the same date 4.2.2007, there is no explanation. Similarly, the case diary statement (Ex.D-4) of Gopal Prasad (PW-7) was recorded on 4.2.2007, after such a long delay of two months without giving any explanation. In these circumstances, according to us, the benefit of doubt which has been given by learned Trial Judge to the accused-respondent cannot be said to be unreasonable from any angle.

No doubt it is true that Dr. Rajeev Kumar (PW-6) found several injuries upon the person of the injured which are mentioned in his deposition sheet as well as in his MLC report (Ex.P-4) but still it is a mystery that who had caused those injuries or who pushed the deceased into the ditch. The doctor has not deposed that the injuries sustained by the injured were sufficient in the ordinary course of nature to cause death.

We have also examined the testimony of the injured-complainant Kamlesh (PW-3) in which he has categorically stated that accused pushed him in the ditch of bank of Beena river as a result of which he fell down and received several injuries, but, his statement cannot be relied upon on the basis of documents Ex.P-6C and P-7C. Further his case diary statement was recorded after delay of two months. The learned Trial Judge in para-11 onwards has scanned his testimony and found it to be worth not reliable. Similarly, the learned Trial Court has rightly assigned cogent reasons by arriving at a conclusion that the statement of Mishribai (PW-4) and that of Gopal Prasad (PW-7) is not at reliable. The reasonings given by learned Trial Judge disbelieving these witnesses are based upon correct appreciation and marshalling of the evidence and therefore, we do not find any illegality in it. Thus, we hereby extend our stamp of approval to the judgment of absolvitur passed by learned Trial Court. Resultantly, we find this appeal to be sans substance and accordingly, the same is hereby dismissed.