Nittu @ Netram Yadav Vs. the State of M.P. - Court Judgment

1 Criminal Appeal No.64 of 1998 HIGH COURT OF MADHYA PRADESH AT JABALPUR SINGLE BENCH: HON’BLE SHRI JUSTICE SUBHASH KAKADE CRIMINAL APPEAL NO.64 of 1998 APPELLANT: Nittu alias Netram s/o Shri Cheer Sagar Yadav, aged about 24 years, R/o Village Jamuniya, Police Station Chargunwa, District Jabalpur (M.P.). Versus RESPONDENT: The State of Madhya Pradesh, through The Police Station Chargunwa, District Jabalpur (M.P.). --------------------------------------------------------------------------------------------------- Shri Manish Tiwari, Advocate for the appellant. Ms. Savita Choudhary, Panel Lawyer for the respondent. --------------------------------------------------------------------------------------------------- Date of hearing :

10. 05.2013 Date of judgment:

02. 07.2013 (

JUDGMENT

) Appellant Nittu @ Netram has filed this appeal under Section 374 of Criminal Procedure Code, 1973 being aggrieved by the judgment dated 10.12.1997 passed by Special Judge [Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)]., Jabalpur in Special Case No.71 of 1997 (State of M.P. vs. Nittu @ Netram), whereby the appellant was convicted and sentenced as below:- CONVICTION SENTENCE i. Under Section 452 of IPC: Rigorous Imprisonment for one year and Rs.500/- fine. In default of payment of fine the defaulter to 2 Criminal Appeal No.64 of 1998 further suffer 3 months rigorous imprisonment. ii. Under Section 324 of IPC: Rigorous Imprisonment of six months and Rs.500/- fine. In default of payment of fine the defaulter to suffer 3 months rigorous imprisonment. However, both the sentences were directed to run concurrently. 02. In short, the case of the prosecution is that on the evening of 21.05.1995 near the hut of Ganesh Rao, he and Prakash Ray, Simbhu Bansore, Mukesh Ray, Netram Yadav were playing cards, thus some altercation happened between complainant Vishal Singh, Village Kotwar and Netram. After that Vishal Singh returned to house and was sleeping, his wife Rampyari bai, father-in-law Ramji were also sleeping nearby place. Light was on. In the early morning hours at about 3.00 am, Netram came over there and dropped plough iron (cL[kj dh yksgs dh Qkal nrw;k ) near the cot of Vishal Singh, so he wake up and shouted, therefore, Rampyari Bai and Ramji came near to him. Netram insulted Vishal Singh saying Kotwar you are going proudy ( dksVjk xjkZ x;k gS ) and then gave a blow of plough iron on his head, which caused long wound and blood oozing out therefrom, then Netram left the spot. Rampyari Bai and Ramji were witnessed to the incident. Rampyari Bai narrated all the facts to the Sarpanch Chanua, who shifted Vishal Singh by tractor to Police Station Chargauwa, where he lodged First Information Report, which was recorded by the SHO Shri R.D. Dwivedi, who manage to shift Vishal Singh for medical examination. At Primary Health Centre Charganwa, Dr. 3 Criminal Appeal No.64 of 1998 Pradeep Agrawal examined him. During investigation, Shri Dwivedi reached to spot, prepared the spot map, recorded statements of Vishal Singh and other witnesses, arrested accused Netram and seized plough iron, which was used by Netram in causing injury to Vishal Singh. After due investigation, charge-sheet were submitted before learned Special Judge. 03. On available evidence, learned Special Judge framed charges against appellant Netram punishable under Section 352 & 324 of IPC and Section 3(1)(x) of the SC/ST Act who abjured his guilt and claims to be tried. 04. The prosecution examined complainant Vishal Singh (PW/2), his wife Rampyaribai (PW/1), Pancham (PW/3), I.O. Shri Dwivedi (PW/4) and Dr. Pradeep Agrawal (PW/5) and also filed documents Ex.P/1 to P/5. 05. During statements under Section 313 of the Criminal Procedure Code, 1973, appellant Netram denied all the evidence put forth against him and pleaded his innocence. Defence not examined any witness. 06. Learned trial Court after appreciating the evidence available on record held accused/appellant Nittu @ Netram guilty, convicted and sentenced as mentioned herein above, but acquitted from the charge punishable under Section 3(1)(x) of the SC/ST Act, against which, the respondent/State has not filed any appeal. 07. Shri Manish Tiwari, learned counsel for the appellant argued at length and submitted that the impugned judgment and sentence are contrary to the material available on record and settled principle of law. He has further submitted that learned trial Court has erred in not considering the major contradictions and omissions in the deposition of the prosecution witnesses and their police statements. Lastly, it is submitted 4 Criminal Appeal No.64 of 1998 that complainant Vishal Singh did not state that he himself seen the person, who has beaten him and also stated that he did not lodge the First Information Report, even though learned trial Court erred in holding the appellant guilty. 08. Ms. Savita Choudhary, learned Panel Lawyer for the respondent/State submits that after due appreciation of the evidence, the learned trial Court has found the evidence proved against the appellant, which requires no interference, therefore, the appeal filed by the appellant deserves to be dismissed. 09. It has not been disputed that Vishal Singh (PW/2) got injuries on his person. Vishal Singh (PW/2) and his wife Rampyari Bai (PW/1) categorically stated that after the incident Vishal Singh was firstly escorted to police Station and then shifted for medical examination to the hospital.

10. On 22.05.1995, at Primary Health Centre, Dr. Pradeep Agrawal (PW/5) examined Vishal Singh being brought from the police station. On examination, as per the report Ex.P-5, he found two injuries on the person of Vishal Singh, which in his opinion were caused by sharped edged weapon within 24 hours.

11. But, to ascertain the nature of injuries, Dr. Agrawal (PW/5) referred Vishal Singh to Medical College. Due to not availability of any x-ray plate and report, it shall be presumed that injuries were of simple nature.

12. not it has to be seen that whether appellate Nittu @ Netram caused injuries on the person of complainant Vishal Singh ?. In this regard, the case mainly rests on the evidence of complainant Vishal Singh (PW/2) and his wife Rampyaribai (PW/1). The prosecution did not examine Ramji, father-in-law of Vishal Singh and Sarpanch Chanau, who took Vishal Singh by tractor to police station. 5 Criminal Appeal No.64 o”

13. Before the trial Court complainant Vishal Singh (PW/2) deposed altogether new short story that when he was sleeping in his house, accused given him two blows by plough iron which caused injuries on his head and ear, then accused run away. He also deposed that his ear were cut.

14. In the First Information Report (Ex.P-1), a different story was narrated. As per the story narrated to Shri Dwivedi (PW/4) while lodging FIR (Ex.P-1), it was told by the complainant Vishal Singh (P.W.2) in details that Netram trespassed in his house, dropped plough iron near to his cot, due to noise of it, he awake and shouted, so his wife Rampyari bai (P.W.1) and father-in-law Ramji came over there. It is also part of the FIR (Ex.P-1) that prior to giving one blow (not two as narrated before the trial Court) of plough iron, Netram intimidated him “dksVjk xjkZ x;k gS”.. It is pertinent to repeat here that all these facts were not deposed by Vishal Singh (PW/2) in detail before learned trial Court.

15. Apart from above discussed fatal omissions as well as contradictions further admissions of Vishal Singh (PW/2) goes to show that though he got injuries during incident, but definitely appellant Netram is not author of causing these injuries.

16. Learned counsel for appellant Netram before learned trial Court wisely stopped cross-examination when Vishal Singh (PW/2) admitted fatal facts. Vishal Singh (PW/2) admitted that prior to incident he was in deep sleep, therefore, he did not see the accused while beating him. Vishal Singh (PW/2) also stated reasons for it that due to injuries he became unconscious and recovered only in the hospital. On these fatal admissions of Vishal Singh (PW/2), no other evidence produced by the 6 Criminal Appeal No.64 of 1998 prosecution is required to discuss in detail or looked into. On the basis of these admissions alone appellant Netram was entitled to be acquitted, which is totally and wrongfully ignored by learned trial Court and thus committed grave error to convict appellant.

17. Apart from above, there are material contradictions in lodging the first information report (Ex.P-1). Shri Dwivedi (PW/4) categorically stated that the First Information Report Ex.P.-1 was written by him as dictated by Vishal Singh and “B to B”. are sign of Vishal Singh. Against this, Vishal Singh (PW/2) stated during examination-in-chief itself that he did not lodge the First Information Report Ex.P-1, not he signed on it. On the other hand, Rampyaribai (PW/1) claims that it was she who lodged the report in the police station. This material and fatal contradiction is also ignored by the learned trial Court.

18. Statement of Rampyaribai (PW/1) also does not inspires confidence. Rampyaribai (PW/1) stated that at the time of incident his son and daughter were also sleeping near to her husband. If it is so, then it was duty of the investigating officer to record statement of these children, but it is pertinent to mention here that investigation officer did not record the statements of her son or daughter. This fact is also not part of First Information Report (Ex.P.-1) as well as Vishal Singh (PW/2) also did not utter a single word about the presence of his son and daughter near to him.

19. This fact need not to repeat that before th trial Court Vishal Singh (PW/2) did not state any word that prior to causing injury to him, he had dialogue with accused Netram. But, Rampyaribai (PW/1) categorically stated that accused Netram emerged there and having dialogue with her husband, he inflicted injuries. Here, she again creating contradiction 7 Criminal Appeal No.64 of 1998 saying that the appellant given blow by Farsa to her husband on neck and shoulder. It is not the case of the prosecution that injuries were caused to Vishal Singh by Farsa, which altogether a different weapon than plough iron. No Injuries were found on neck or shoulder of Vishal Singh by Dr. Pradeep Agrawal (PW/5).

20. Pancham (PW/3) is attesting witness of seizure memo (Ex.P.2) and arrest memo (Ex.P.3) of Netram, whose admissions during cross- examination proves him as a hostile witness.

21. Considering from all angles and facts and circumstances of the present, I am of the opinion that prosecution failed to prove beyond reasonable doubt that appellant Nittu @ Netram committed criminal trespass in the house of complainant Vishal Singh and committed any act of causing injury to complainant Vishal Singh, therefore, appellant Nittu @ Netram is acquitted from charges under Sections 425 and 324 of IPC.

22. The appeal preferred by the appellant Nittu @ Netram succeeds and is allowed. The appellant is acquitted from both the charges. Appeal allowed. (Subhash Kakade) Judge SJ/-