Dismissed

Jawahar v. Bharat and Ors.

Chhattisgarh HC1 Jan 2024ACQA/158/2011

Case brief

AI extract

What is this about?

Acquittal appeal against conviction-stage acquittal under Section 325 IPC for poking the complainant's eye with a Tutari. Court found no reliable evidence, noted probability of accidental injury during a quarrel with the accused's wife, applied the double presumption in favour of the accused on acquittal appeals, and dismissed the appeal.

What did the court decide?

None granted; appeal against acquittal dismissed.

Jawahar Vs Bharat and Ors. — Quashing and FIR | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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ACQA No. 158 of 2011

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Jawahar, aged about 45 years, S/o Gokul Lodhi, R/o Village Pandrikhurd, P.O. Gochia, Tahsil Sahajpurlohara and District Kabirdham (CG)

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--- Applicant

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Versus

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Bharat, son of Narayan, aged about 40 years, resident of Village Pendri, Police Station Sahajpur Lohara, District Kabirdham (CG)

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State of Chhattisgarh, Through P.S. Sahajpur Lohara, District Kabirdham (CG)

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---- Respondent

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For Appellant Mr. Shobhit Koshta, Advocate For Respondent No.1 Mr. Anumeh Shrivastava, Advocate For State Mr. Anand Verma, Dy. GA

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SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari Judgment On Board

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2/1/2024

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This Acquittal Appeal is directed against the judgment dated 30.8.2011 passed by the Judicial Magistrate First Class, Kabirdham (CG) in Criminal Case No.511/2010, whereby, the said Court acquitted respondent No.1 of the charge of causing grievous hurt to the complainant/appellant - Jawahar (PW-1).

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Prosecution case, in brief, is that respondent No.1 (Accused) had taken a contract to harvest the crop on the land belonging to one Ruru. The complainant was also one of the labourers in the above contract. Though the complainant worked along with respondent

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No.1 for about a week, but later on, respondent No.1 did not allow the complainant to work, on account of which, a dispute occurred. In the said dispute, the complainant abused respondent No.1. At the time of quarrel, the accused/respondent No.1 was holding a Tutari (an instrument used to drive away animals) and he, all of a sudden, poked the eyes of the complainant with the said Tutari. In the next morning of the incident i.e. on 3.12.2006, the injured was examined by Dr. RP Sharma (PW-5) vide Ex.P/4 and on examination, he found a lacerated wound on the right eye of the complainant, which was caused by a hard and blunt object . The injured was referred to the Ophthalmologist vide Ex.P/5. After obtaining medical opinion, the FIR-Ex./P.6 was registered on 10.2.2007 at Police Station Sahaspur Lohara. The statements of the witnesses were recorded and the weapon – Tutari was seized vide Ex.P/2. The spot map was prepared vide Ex.P/1.

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After completing the investigation, the charge sheet was filed . During the trial, respondent No.1 abjured his guilt and claimed to be tried. In order to prove its case, the prosecution examined as many as 9 witnesses. In the statement recorded under Section 313 of Cr.PC, respondent No.1 stated that he has been falsely implicated in the case and in defence, he examined three witnesses. After evaluating the evidence, the trial Court acquitted respondent No.1 from the charge under Section 325 of the IPC. Hence, this Appeal.

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Learned counsel for the complainant-injured/appellant would submit that the trial Court has not appreciated the evidence in its proper perspective and the delay in lodging the FIR is not attributed to the

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complainant/injured. He submits that the said delay occurred on the part of the investigating Agency. He would further submit that the trial Court has not assigned proper reasons to disbelieve the evidence of eye witnesses- PW-7 Ramesh and PW-8 Mahavir on account of the fact that they are close and related witnesses of the injured. He submits that the law is well settled in this regard that the related eye-witnesses are also confident witnesses and their testimonies cannot be discarded only because they are the related witnesses. He places reliance on the judgment rendered in the matter of Waman and others Vs. State of Maharashtra (2011) 7 SCC 295. Hence, he prays to allow the appeal and convict respondent No.1 for the charge levelled against him.

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On the other hand, learned counsel for respondent No.1/accused would submit that the findings arrived at by the trial Court is based on proper marshelling of evidence and the same is not liable to be interfered with by invoking jurisdiction of appeal. He would further submit that the complainant/injured himself is the aggressor as he entered into the house of the accused to quarrel with his wife, for which, an information was given under Section 155 of the Cr.PC but the Police has not taken any cognizance in the matter. He would further submit that during such quarrel with the wife of the accused, the complainant might have suffered an accidental injury and the said fact is also corroborated by the medical evidence of Dr. RP Sharma (PW-5). In the cross-examination, Dr. RP Sharma (PW-5) has categorically admitted the fact that the said injury could also be caused if a person forcefully dashes against the bamboo fitted on the tile roof. Hence, the approach of the trial Court is just and

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proper, which does not call for any interference. He would further submit that with regard to relative witnesses, a close scrutiny of the evidence of these witnesses is required and in the instant case, both the eye-witnesses had not passed the test with regard to credibility of their evidence. He would further submit that though the independent witnesses were present in the case but they had not been examined. Hence, learned counsel for respondent No.1 prays for dismissal of the appeal.

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Heard learned counsel for the parties and also perused the record with utmost circumspection.

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Complainant/appellant - Jawahar (PW-1) deposed that on the date of the incident, he has given information about the incident to the Police Station Khamaria. After such information, the Police referred him for medical examination. PW-9 – Ishwar Lal Yadav, the then Head Constable, posted at Police Station Khamaria stated differently about the incident. He deposed that neither the injured nor any of his family members had given information to the Police about the incident and if any such information had been received by him, he would have positively registered the same as “0” FIR. He would further submit that on 3.12.2006, a medico-legal information vide Ex.P/8 was received, which was registered in the Daily Diary at Sl. No.68 vide E.P/7. After preparing the memo for the medico-legal examination vide Ex.P/4-A, the injured/complainant was sent to the PHC, Khamaria. Dr. RP Sharma (PW-5) has examined the injured on 3.12.2006 at about 11:30 hours and found trauma on the right eye with redness and laceration of cornea, which had been caused by

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hard and blunt object. In the cross examination, he categorically admitted that if any person would run and dash against the bamboo fitted on the roof tiles with force, the said injury could be caused. In Roznamchasana – Ex.-P/7 or in the MLC Memo-Ex.P/4A, there was no such mention about the said injury caused by respondent No.1/accused. Ishwar Lal Yadav (PW-9) admitted that he has not recorded the statement of any witness.

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Bhuwanlal Sahu (PW-6) further deposed that after receiving the information from the Doctor, the FIR-Ex.P/6 was registered at Sahaspur Lohara Police Station on 10.2.2007. In the crossexamination at para 7, he admitted that on 3.12.2006, the wife of the accused - Triveni Bai (DW-1) had also made a complaint against the complainant/ injured (PW-1) to the effect that on 2.12.2006, at about 9.20 p.m, when she was standing outside the house, the complainant came in an intoxicated state and beat her with hands and fists. He would further depose that the said incident was witnessed by Dulari (DW-2), Dasrath and Bhagwath. He admitted that since simple injury was caused to Triveni Bai (DW-1), an information under Section 155 of the Cr.PC was given and no cognizance was taken in the matter. However, the complainant/injured Jawahar (PW-1) denied the fact that during the quarrel with the wife of the accused, he suffered such type of injuries.

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Ramesh (PW-7) and Mahavir (PW-8) are the nephews of the complainant/injured. They categorically admitted that during such quarrel, the other independent witnesses, who are residing in the

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nearby locality, were also present but the prosecution has not examined any such independent witnesses. Mahavir (PW-8) deposed that he has seen the incident along with Ramesh (PW-7) from his house. Though Mahavir (PW-8) did not state that Ramesh (PW-7) reached the spot, but Ramesh (PW-7) categorically stated differently in para 4 of his evidence that when he reached the spot, respondent No.1 assaulted the complainant/injured and poked his eye with Tutari.

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10.Though the complainant (PW-1) stated that after the incident, he informed the incident to Jankunwar (PW-2) but Jankunwar completely turned hostile by stating that she is not aware of the incident. The prosecution has not declared this witness hostile. Bhav Singh (PW-3) and Radhelal (PW-4), who are the seizure witnesses of Ex.P/2, also did not support the case of the prosecution.

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In view of the aforesaid appreciation of evidence, since the complainant himself has stated that on the date of the incident, he had given an intimation about the incident to the Police but no such fact has been proved by the prosecution with regard to any report made by him. Further, it has been proved that a quarrel took place between the complainant and the wife of the accused – Triveni Bai (DW-1), for which, the wife of the accused made a complaint against the complainant and in this regard, an information was given to the Police under Section 155 of the Cr.PC. Moreover, in the medico-legal opinion, it has been established that the injury which has been sustained by the complainant could be caused otherwise also and

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thus, these all would show that the defence has successfully proved that there is a probability of an accident also in this case.

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12.In the matter of Jafarudheen Vs. State of Kerala, (2022) 8 SCC 440 in respect of scope of appeal against acquittal, the following was observed vide para 25 :

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While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be termed as a possi- ble one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.

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In view of the aforesaid settled principle and considering the facts and circumstances of the case, it is quite vivid that there is no reliable evidence available on record, which can be acted upon and for which, conviction can be rested upon any of the witnesses. Over all assessment of the evidence adduced by the prosecution is not sufficient to record the conviction. Therefore, the trial Court was not in a position to record finding of conviction. This Court in agreement with the finding arrived at by the trial Court.

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The appeal is therefore liable to be and is hereby dismissed.

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Sd/-

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(Deepak Kumar Tiwari)

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Judge

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Shyna

Jawahar v. Bharat and Ors.

Case brief

What is this about?

What did the court decide?

Jawahar v. Bharat and Ors.

Case brief

What is this about?

What did the court decide?

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