Deepak vs The State Of M.P.
2021 Latest Caselaw 8276 MP

          HIGH COURT OF MADHYA PRADESH
                           JABALPUR
               Criminal Appeal No.1360/1997
                            Deepak
                             Versus
               The State of Madhya Pradesh

Date of Judgment       06/12/2021
Bench Constituted      Single Bench
Order delivered by     Hon'ble Mr. Justice Sanjay Dwivedi
Whether approved       -
for reporting
Name of counsel for For Appellant: Mr. Hemant Namdeo,
parties             Advocate.
                    For Respondent/State: Mr. Devendra

Gangrade, Panel Lawyer.

Law laid down       -
Significant Para Nos. -
Reserved on : 10.11.2021
Delivered on : 06.12.2021
                      (J U D G M E N T)
                           (06/12/2021)

1. This Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973, has been filed by the appellant against the judgment and finding dated 30/06/1997 passed in S.T. No.204/1994 by learned First Additional Sessions Judge, Sagar, whereby the present appellant has been convicted for an offence punishable under Section 307 of the Indian Penal Code and sentenced to undergo R.I. for five years with fine of Rs.3,000/-, in default of payment of fine, R.I. for six months.

2. The facts given rise to this appeal in short, are that, on 12.05.1994 in the morning at about 9.30 a.m., the complainant/victim was coming from petrol pump after getting filled petrol in his scooter and when he reached near Collector Bungalow, he met with Vijay and Deepak, one of the present appellants. He stopped his scooter and then immediately Vijay assaulted him by Khukhri and the present appellant caused injury with the help of knife on his back. As per the material collected by the prosecution, there was a previous enmity between them. The accused fled away from the spot alongwith Pawan, Chandan and Shyam as they reached there.

3. The complainant/victim came to his house with Shyam and then father of the complainant brought him to Sena hospital and got him hospitalized in Tili Hospital, Sagar. He sustained grievous injuries, therefore, he remained in the hospital till 21.5.1994 and then got discharged from the hospital.

4. The trial Court after examining the witnesses of the prosecution including the injured (PW-1) and whose statement has been supported by other witnesses namely Sushil Kumar (PW-3), Pawan Kumar (PW-4) and Shyam Yadav (PW-10) respectively stating that it is the victim who had informed them about the incident. Dr. Ashutosh Kashtwar (PW-2) in his report and statement though stated that victim did not suffer with any fracture but the injury caused on the back was incised wound of 3 cm x 1.5 cm. Dr. P.K. Dhagat (PW-8) has also stated that when he examined the victim, he was in a serious condition, facing difficulty in breathing and considering his condition, without waiting for the X-ray report got the injured operated because the victim's lung was ruptured and surrounded with blood. According to Dr. Dhagat, injury was danger to life and the report was Exhibit P/13. The trial Court finally come to the conclusion that the accused was rightly charged with the offence of Section 307 read with Section 34 of IPC and held him guilty of such offence and awarded sentence as mentioned above.

5. An appeal has been preferred by the appellant in which this Court at the time of admitting the appeal on 14.07.1997 considered the bail application and suspended the sentence awarded to him.

6. The appeal of 1997 came to hearing now. Learned counsel for the appellant has tried to establish a case that the injuries were not of grievous in nature and as such, case of Section 307 is not made out against the appellant and has further submitted that the trial Court has not rightly appreciated the evidence adduced by the prosecution. Learned counsel, taking me through the evidence has tried to establish that the trial Court has not appreciated the evidence in proper manner and taken a very harsh view, convicting the appellant under Section 307 of IPC, whereas, according to him, it was an offence of Section 324 of IPC.

7. However, after examining the judgment of the trial Court and the record of the case, I am of the opinion that the judgment of the trial Court does not suffer from any material irregularity. The witnesses have rightly been appreciated and in fact, the defence taken by the accused since is without any substance, therefore, rightly discarded by the trial Court.

8. The only fact which conscience the Court is that the appellant, at present is burdened with certain responsibilities having the whole family and at present is involved in construction work of small nature and is earning his livelihood to meet out the daily needs of his family. However, considering the fact and the law laid down by the Chhattisgarh High Court in case of Bharat Ram vs. State of M.P., 2001 (2) M.P.H.T. 113 (CG), I find appropriate that after laps of 25 years of the incident, it is not proper for this Court to send the appellant to jail again.

9. Learned counsel for the appellant has also requested that alternatively the appellant can be discharged by reducing his sentence to the extent of the period already undergone by him by enhancing the fine amount.

10. Learned counsel for the State although opposed the submission made by learned counsel for the appellant and submits that the undergone period is almost two months and looking to the period of sentence, the undergone period comparatively is very less and has opposed the suggestion made by learned counsel for the appellant.

6. But in the facts and circumstances of the case and considering the present status of the appellant, since the appeal took almost 23 years to be heard, I am of the opinion that some lenient view can be adopted in the matter and the sentence awarded to the appellant/accused be reduced to the period already undergone by him by enhancing the fine amount of Rs. 3000/- to Rs. 20,000/-, out of which, Rs. 15,000/- shall be paid to the complainant/victim. The amount of fine shall be deposited by the appellant within a period of 30 days from today in CCD of District Court Sagar and the amount so deposited shall be disbursed in favour of the complainant/ injured by calling him through summons in the trial Court. In case he does not survive, the said amount shall be disbursed in favour of the legal heirs of the complainant/ injured person subject to verification of his legal heirs. The fine amount already deposited by the appellant shall be adjusted from the enhanced amount of fine. In case of failure of the appellant to deposit the enhanced fine amount, he shall suffer to undergo the remaining jail sentence as awarded by the trial Court.

7. With the aforesaid direction, the impugned judgment is modified and the finding of the Court below is affirmed.

8. The appeal is partly allowed.

(SANJAY DWIVEDI) JUDGE rao Digitally signed by SATYA SAI RAO

SATYA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=fd8212036fdbf89fa7ca6dd1d45561 a7803f38162f693a3cbabf7e416131fa7f,

SAI RAO pseudonym=6D368848B6731EB999EE2C54F 154A7245187F1E5, serialNumber=D71B7C71D530E3C544E8EBF 848D8818167BECB37EB09E44776D0667970E ED1E9, cn=SATYA SAI RAO Date: 2021.12.07 17:36:11 +05'30'