STATE OF M P Vs. AKALANK

JUDGEMENT

(1.) The State feels aggrieved by the judgment dated 28-3-1985 passed by Judicial Magistrate, first Class, Jabalpur in Cr. Case No. 862/80 acquitting the respondent and coaccused Uttamchand of offences under sections 326 & 324 I.P.C. and has preferred this appeal, after obtaining leave of this Court, challenging legality and validity of the same. It appears that the complainant Prasanna Kumar Jam had also filed an application seeking leave to appeal against this judgment of acquittal, purporting to be under section 378 (4) Cr.P.C. and the Court had been pleased to grant said leave to him also and because of that Cr. Appeal No. 388/88 has also been heard along with this appeal. Both these appeals are being decided by this Judgment.

(2.) Before taking up the facts of this case, it is necessary to mention that the complainant in a police case has no right to either apply for special leave to appeal or file appeal against the judgment of conviction. Apparently, therefore, special leave granted to Prasanna Kumar Jam, registering the same as Cr. Appeal No. 388/88, was illegally granted. It seems to have been granted only because the State has been granted leave to appeal against respondent Akalank and since the complainants application dealt with the case against him, leave to appeal was granted as a matter of routine, without seriously considering the matter. Be that as it may, the aforesaid, illegality will not affect decision about the legality or otherwise of the judgment of acquittal under challenge in this appeal.

(3.) The respondent is alleged to have caused grievous injuries on the person of Prasanna Kumar Jam and Shreyans Kumar Jam, by using a sword on 20-5-1980 at about 8.00 A.M. Prosecution story is that the complainant and his brother were trying to repair a drain commonly shared by both the parties. The same was objected to by the respondent, who is alleged to have got infuriated with the continued repair of the drain, got a sword form inside his house and caused injuries to both of them. The respondent also lodged a report at 8.05 hours, which was recorded as per Ex. D/2 and he was sent for medical examination. His examination by Dr. Nema revealed abrasions on his face, as would be clear from medical report (Ex. D3). The report lodged by Prasanna Kumar Jam was recorded in Rojnamcha Sanha as Ex.P3. This report does not mention use of sword by the respondent. However, after recording the said Sanha, Prasanna Kumar Jam & Shreyans Kumar Jam were sent for medical examination, during which Prasanna Kumar Jam was found to have two incised wounds allegedly caused by sharp-cutting object and Shreyans Kumar was found to have three abrasions caused allegedly by hard and blunt object. Their medical reports are Ex. P7 & Ex.P8 respectively. It was perhaps, thereafter, that the statement of Prasanna Kumar and Shreyans Kumar was recorded by the police and they stated the use of sword by the respondent as a weapon of offence. Later on, the respondent and one Uttamchand ere charged with offences under sections 326 & 324 I.P.C. and put on trial by the learned Magistrate. The learned Magistrate was of the opinion that the prosecution case was not of the type as had been placed for consideration of the Court. There was no explanation of the injuries found on the person of the respondent. No independent witness was examined and there was no explanation as to why use of sword was not mentioned in the report (Ex.P5). Taking overall view of the matter, the learned Magistrate was of the opinion that the prosecution had failed to establish its case, beyond reasonable doubt. It is this judgment of acquittal, which is under challenge in this appeal.