Rajesh and Another vs State of M.P.

M.K. Mudgal, J.—None is appearing on behalf of the petitioners and so the case is being considered on merit.

With the consent of learned Panel Lawyer, the matter is finally heard at motion stage.

The Petitioners-accused have preferred this revision u/s 397, 401 Cr.P.C. against the judgment of conviction and sentence dated 10.12.2012 passed by Sessions Judge Sheopur in Cr. Appeal No. 101 of 2010 by which, the judgment of conviction punishable u/s 435 of the IPC dated 18.10.2010 passed by learned Judicial Magistrate, First Class Vijaypur District Sheopur in Cr. Case No. 247 of 2007 has been affirmed but reduced the sentence till rising of the court with fine of Rs. 500-500/- each respectively with default stipulation mentioned in the impugned judgment.

Prosecution case in brief, is that on 15.3.2007 at about 7-8 PM Rajesh, Gudda Jadaun, Munshi Mogia and Harcharan Kori came to the hut of complainant situated at Pancho Colony and claimed the place of the hut to be their, threatened her to vacate the same. When complainant refused to vacate, they abused and set her hut and Chappar on fire, due to which, the household articles got brunt and loss was caused to the complainant. It was further alleged that accused Rajesh got the hut burnt standing over there. On the report of complainant Munni Bai (PW.1), FIR was registered at Crime No. 20 of 2007 against the petitioners for offence u/s 435 and 504 of IPC. During investigation, spot map was prepared, statements of complainant Munni Devi, Mohno Bai, Brahma and Nandkishore were recorded, the accused were arrested and after investigation, charge sheet was filed in the Court of Judicial Magistrate, First Class Vijaypur, Distt. Sheopur.

The trial court framed charges against the petitioners under sections 435 and 504 of IPC and after completion of trial, learned trial court convicted and sentenced the petitioners as stated above. Being aggrieved by the judgment of conviction, petitioners preferred Criminal Appeal before Sessions Judge Sheopur in Cr. Appeal No. 101 of 2010. Learned Sessions Judge Sheopur vide judgment dated 10.12.2012 dismissed appeal confirming judgment of conviction and modified the sentence as stated earlier, hence, this revision.

Being aggrieved by the said judgment of conviction and order of sentence, present revision is preferred by the petitioners on the ground that learned trial court as well as appellate court have not appreciated the evidence properly.

The question arises for consideration is that whether the conviction and sentence passed by the learned appellate Court and the trial Court are justified.

The learned Public Prosecutor submits that the findings of both the Courts being based on proper reasonings and proper appreciation of the evidence are not required to be interfered in.

This Court has considered the arguments advanced by the learned Public Prosecutor and perused the record.

On perusal of the FIR (Ex-P.2) the said incident has been reported to have taken place on 15.3.2007 at 7-8 pm and a written report has been reported by PW/2 on 18.3.2007 at 17.00 PM. The FIR (Ex-P.2) was registered on 22.3.07 on the basis of enquiry of the written report. However neither the written report nor the said enquiry report has been produced on record. In this connection when the Baburam, ASI (PW.2) was asked in para 5 of his statement he expressed his ignorance about the written report submitted by PW/2. Thus, it becomes clear that the FIR was lodged after six days of the incident.

The PW/1 has tried to explain in para 3 of her statement regarding the delay and deposed that she was going to the police station for lodging a report on the same day after the incident but she was threatened by the petitioners not to do so. Consequently, she lodged a report at the Police Station Veerpur on the next day but no report having been lodged in the Police Station Veerpur is on record. Therefore, it is inferred that there is no sufficient reason for the delay of the report having been shown in this case. The alleged six days delay in lodging the report makes the prosecution story suspicious but both the learned courts below have not appreciated and contemplated the facts and circumstances of the case.

As per the allegation of the report on the day of incident all the accused have arrived at the hut of PW/1 and they asked her to vacate the hut but on her denial her hut was put to fire by them. However, it is not clear in the report as to which particular person put the hut to the fire. During recording the statement of PW/1 in the Court she has introduced the story that the accused Munshi burnt the hut of the behest of the accused Rajesh but this very fact has not been stated in the FIR. This very statement of PW/1 does not appear to be credible and convincing.

The witnesses Nandkishore (PW.3) and Bramhanand (PW/4) both do not belong to the vicinity of the place of incident whereas they are resident of other village Khoriyapura. The PW/3 in para 2 and PW/4 in para 3 have admitted in their statements that they are in relation with the PW/1 from her maternal side. The PW/3 has stated himself to be her brother and PW/4 her nephew. Moreover neither their presence nor their names have been mentioned in the FIR. The PW/1 has also not mentioned in her statement about their being eyewitnesses of the incident. In view of the facts, the statement of the witnesses PW/3 and PW/4 cannot be relied upon as eyewitnesses of the incident. In this regard both the courts have not appreciated the evidence in this perspective. The findings of the learned appellate Court are perverse contradictory as in para 25 of the impugned judgment on one side the learned appellate court has given the findings that PW/3 and PW/4 were not present on the spot whereas in para 26 and 27 of the impugned judgment on the other side the learned court has concluded that the statement of PW/3 and PW/4 corroborate the said incident of hut being put on fire by the accused. In the FIR (Ex-P/2) presence of Munni (PW/1)''s mother has been shown but her statement was not got recorded by the prosecution in this case. As discussed earlier sole statement of Munni (PW/1) is not trustworthy for holding the accused guilty u/s 435 of the IPC as the civil suit was pending between the parties before the alleged incident as admitted by PW/1 in para 11 of her statement, owing to which, it is quite possible for Munni (PW/1) to implicate the accused falsely in this case. The learned trial Court and the learned appellate Court have not considered the evidence properly in this case. Consequently, it is concluded that the conviction u/s 435 of the IPC held by both the learned court cannot be maintained. Therefore, allowing the appeal, setting aside the impugned judgment 10/12/2012 passed by the Court of Sessions Judge Sheopur and sentence awarded by the Court the petitioners/accused are hereby acquitted. Their personal bond and surety are canceled.