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1996 Supreme(MP) 1029
1999 (1) J LJ 365
Tej Shankar, J.
Shrilal and others v. State of M.P.
Cr. Appeal No. 123 of 1990; against the judgment of Shri R.S. Mourya,
I Additional Sessions Judge, Guna, passed in Sessions Trial No. 146 of 1987;
Decided on 19.12.1996.
A.K. Shrivastava for appellants;
Arvind Dudawat, Additional Govt. Advocate for State.
Headnote:(1) Advocate -- appearing for the State -- should be provided with necessary papers -- mere physical presence of State counsel is of no avail. [Para 4
(2) Criminal P.C., 1973 -- S. 154 -- FIR -- not proved by writer -signature of complainant also not proved -- cannot be treated as FIR even if it is marked as an exhibit. [Para 5
(3) Evidence Act, 1872 -- S. 47 -- document not proved in accordance with this provision -- cannot be relied on. [Para 5
(4) Penal Code, 1860 -- S. 333 -- summons/notices alleged to be served on accused persons -- no evidence produced that complainant was given such notices for service -- daily diary of complainant also not proved -- best documentary evidence withheld -- essential ingredient not proved. [Para 6
(5) Penal Code, 1860 -- S. 333 -- public work as alleged by prosecution suspicious -- no offence made out. [Para 6
(6) Penal Code, 1860 -- S. 333/149 -- complainant not proved to be discharging his duties at the time of offence -- case does not fall under S. 333/149. [Para 7
(7) Evidence Act, 1872 -- Ss. 60 and 45 -- statement of injured eye witness improved to match with medical report -- witness is not trustworthy. [Para 8
(8) Criminal Practice -- defence -- not required to prove its case to the hilt -- if has only to show probability. [para 8
(9) Criminal Practice -- case of convicted accused not different from acquitted accused -- all should be acquitted. [Para 8
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¼3½ lk{; vf/kfu;e] 1872 && /kkjk 47 && nLrkost bl mica/k ds vuqlkj lkfcr ugha && voyafcr ugha fd;k tk ldrkA ¿ iSjk 5À
¼4½ naM lafgrk] 1860 && /kkjk 333 && leu@lwpuk vfHk;qDr O;fDr;ksa ij rkehy gksuk vfHkdfFkr && ,slk lk{; izLrqr ugha fd ifjoknh dks ,slh lwpuk,¡ rkehy ds fy, nh xbZ Fkh && ifjoknh dh nSufnuh Hkh lkfcr ugha && mÙke nLrkosth lk{; jksdk x;k && vko‘;d ?kVd lkfcr ughaA ¿ iSjk 6À
¼5½ naM lafgrk] 1860 && /kkjk 333 && vfHk;kstu }kjk ;Fkk vfHkdfFkr yksd dk;Z ‘kadkLin && vijk/k fl) ughaA ¿ iSjk 6À
¼6½ naM lafgrk] 1860 && /kkjk 333@149 && vijk/k ds le; ifjoknh }kjk vius drZO; ds fuoZgu esa gksuk lkfcr ugha && ekeyk /kkjk 333@149 ds v/khu ugha vkrkA ¿ iSjk 7À
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1. The appellants along with others were tried by the learned trial Court u/S. 148, 333/149 IPC. The learned Court convicted the appellants u/S. 148, 333/149 IPC. They were sentenced to 1 year R.I. each u/S. 148 IPC and 3 years R.I. each u/S. 333/149 IPC. Feeling aggrieved they have preferred this appeal.
2. The facts leading to the appeal are that on 23.7.87 PW 4 Laxminarain Sharma who was then Vanpal, Bamori Range and PW 5 Vishnucharan Khare, Forest Guard, had gone to village Tuiakheda to serve notices on the residents of that village with respect to their unauthorised occupation over the forest land 1ney reached there at about 9 a.m. PW 1 Babulal and PW 2 Mahavirsingh, who were Chowkidars, were sent by him to call the persons to whom notices were to be served. He along with Vishnucharan sat under a Mahua tree in Mohalla Kirkar. Accused Shrilal, Bhagchand, Onkar, Rambux, Harishchandra, Uda, Gopal and five others along with five ladies which included the wives of Shrilal, Onkar and Rambux reached there. Shrilal and Asharam were armed with Pharsa whereas Shrilal's wife had iron rod and other accused were armed with lathi. Shrilal attacked with Pharsa and his wife by iron bar which hit him on his left hand. The rest of them attacked with lathi. Rambux and Asharam attacked Vishnucharan Khare with Pharsa which hit him on leg. He also received injuries in his left thigh and left leg. He tried to run in order to save himself but the accused persons committed Maarpeet there as well. At the time of Maarpeet one Motilal was also there. On account of Maarpeet the notices could not be served. from the place of occurrence he was taken on hullock cart to Vishnupura where Darogaji met. He had given a report to him EX.P-6. PW 10, B,K, Chhari, the then On1cer-in-Charge of Fatehgarh was given written petition by Ranger Laxminarain and he prepared Dehati Nalish EX.P-18 at village Vishnupura itself. He sent the injured Vishnu Charan Khare and Laxmi Narain, vide memo EX.P-23 and 24 for medical examination. He reached the spot at village Tuiakheda and prepared site-plan EX.P-25 on the pointing out of Motilal. On 30.7.87 he arrested accused Gopal, Bhagchand Lalchand and Kapura vide memo EX.P-26. On 1.8.87 accused Asharam and Shrilal were arrested, vide memo EX.P-27. He recovered Pharsa from Shrilal vide memo EX.P-28. He recovered three notices from Laxminarain on 15.9.87 vide memo No. P-10 as well as blood-stained clothes, vide memo EX.P-2. On 26.8.87 he recovered clothes of Vishnucharan vide memo EX.P-3. He recorded statements of Laxminarain, Vishnucharan, Faridkhan Motilal and Babula1. After completing investigation charge-sheet was submitted against accused persons. All the accused persons denied the charge and alleged that they were falsely implicated on account of enmity. The prosecution examined 11 witnesses and relied upon documents EX.P-1 to P-28. The accused also examined one witness DW 1 Babulal son of Harichand. After considering the entire material on record and hearing parties the learned trial Court acquitted some of the accused persons but convicted the appellants as aforesaid. Hence the appea1.
3. Learned Counsel for the appellants contended that there is no FIR in the case. It is alleged by the prosecution that an FIR was lodged by Laxmi Narain which has been claimed to be EX.P-6 but it is not the FIR if we peruse the entire evidence on record. The learned Counsel during the course of arguments drew my attention to Fx.P-19 and pointed out that in this document there is reference of an application given to the police officer but that has not been brought on record. Consequently, it is apparent that the original FIR has been suppressed. The next contention of the learned Counsel is that the prosecution has miserably failed to prove that Maarpeet had taken place when the injured persons were on duty and as such it cannot be held that an offence u/S 333 IPC was made out. 'The learned Counsel also referred to statements of wit
