Sameer Khan & Ors. vs The State Of M.P.
2021 Latest Caselaw 8517 MP

                                  -1-
                                                       Cr.A. No.1734/1998


    THE HIGH COURT OF MADHYA PRADESH AT
                 JABALPUR
              Criminal Appeal No.1734/1998
                  Sameer Khan and another
                                Versus
               The State of Madhya Pradesh

   Date of Judgment       09.12.2021

   Bench Constituted Single Bench

   Judgment               Hon'ble Shri Justice Sanjay
                          Dwivedi, J.

delivered by

Whether approved ----

   for reporting

   Name of counsels       For Appellants : Shri L.N. Sakle,
   for the parties        Advocate.
                          For Respondent/State : Shri Ajay
                          Tamrakar, Panel Lawyer.

   Law laid down          ----

   Significant Para       ----
   Nos.

                       (J U D G M E N T)
                          (09.12.2021)

This appeal under Section 374(2) of the Code of Criminal Procedure is arising out of the judgment dated 23.07.1998 passed by the Second Additional Sessions Judge, East Nimad, Khandwa in S.T. No.77/1998 whereby appellant No.1/Sameer has been convicted for the offence punishable under Sections 341, 323 and 325/34 of the Indian Penal code and sentenced on first count only fine of Rs.100/-, second count only fine of Rs.200/- and on third count RI for 1 year with fine of Rs.500/-, with default stipulations and appellant

Cr.A. No.1734/1998

No.2/Krishna has been convicted under Sections 341, 323 and 326 of the Indian Penal Code and sentenced on first count only fine of Rs.100/-, second count only fine of Rs.200/- and on third count RI for 1 year with fine of Rs.500/-, with default stipulations.

2. Learned counsel for the appellants submits that considering the allegation made in the FIR and the statement of complainant/injured, it can be easily gathered that so far as appellant No.1 is concerned, he has not committed any offence alleged against him and for which he has been convicted. He further submits that rather on the basis of statement of the complainant/ injured it can be presumed that appellant No.1 was not available on spot but has been falsely implicated.

Shri Sakle further submits that so far as appellant No.2 is concerned, he has been convicted for the offence punishable under Section 326 of IPC for a period of 1 year RI with fine of Rs.500/-. He also submits that the incident is of the year 1998 and appellant No.2 has suffered almost 20 days in jail and at this juncture it would not be proper to sent him jail again for suffering the remaining period of sentence. He also submits that initially the police registered the offence under Section 307 of IPC but later on it was converted into 326 of IPC and finally convicted the appellants awarding sentence under Section 341, 323, 325/34 and 326 of IPC. He submits that so far as appellant No.2 is concerned, as per the material available on record, he has suffered almost 20 days in jail during trial and appeal and therefore, his sentence can be reduced to undergone period enhancing

Cr.A. No.1734/1998

the fine amount. According Shri Sakle it would not be appropriate or in fact would not serve justice if appellant No.2 is sent to jail again for suffering remaining period of sentence.

3. Shri Tamrakar, learned Panel Lawyer appearing for the respondent/State opposes the submission made by the counsel for the appellants and submits that merely because the appellant remained in jail for some period, therefore, the request for reducing the period of sentence to the period undergone is not proper. He submits that merely because the appeal is pending since long and incident occurred somewhere in the year 1998, the appellant can be given go-bye and can not be sent back to jail. He submits that there is no substance in the appeal as the ground raised by the learned counsel for the appellants deserves to be rejected.

4. Considering the rival submissions made by the learned counsel for the parties and perusal of record, it can be easily gathered that the prosecution got recorded the statements of PW-1 (Mahesh), PW-2 (Dr. S.S. Chouhan) who had examined the injured, prepared the MLC and provided medication to him. PW-3 (Sanjay) has narrated the incident as he was injured person sustained injury. According to his statement, when he reached the spot his younger brother Mahesh (PW-1) was fighting against the present appellants and he intervened in the matter and separated them but appellant No.2 has assaulted him with the help of knife and caused injury on his left thigh. From the statement of witnesses adduced

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by the prosecution, it reveals that so far as appellant No.1 is concerned, he has not caused any injury to the complainant/injured and no specific role of appellant No.1 has been attributed by the witnesses despite that the trial Court has convicted him. Although, accused/appellants have projected a case that appellant No.1 has unnecessarily been highlighted and named in the FIR whereas he was not available on spot.

5. Further, considering the statements of the witnesses and discussion made by the Court below and after perusal of the same, I am of the opinion that the sentence awarded and finding given by the Court below against appellant No.1, have no foundation and the same are required to be set aside. As such, the finding given by the Court below in respect of conviction and sentence awarded to appellant No.1 are concerned, the same is hereby set aside. Accordingly, appellant No.1/Sameer is acquitted from the charges levelled against him i.e. 341, 323 and 325/34 of the Indian Penal.

6. So far as appellant No.2/Krishna is concerned, the witnesses adduced by the prosecution were consistent and their statement regarding injury caused by appellant No.2/Krishna to complainant/injured remained unrebutted. Although, the nature of injury was not danger to life and, therefore, whatever minimum sentence possible that has been awarded by the Court below.

7. However, the learned counsel for the appellants made submission in respect of appellant No.2/Krishna that it would not be proper at this stage that too after almost 23 years of the incident to send him jail

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for suffering remaining sentence. He remained in jail for a period of 20 days as reflects from the record.

Although, Shri Tamrakar has opposed the submission made by the counsel for the appellants and submitted that the judgment passed by the trial Court is a reasoned one and based upon proper appreciation of evidence, therefore, the same does not call for any interference.

8. Considering the aforesaid, in my opinion, although the period undergone is not sufficient and sentence awarded cannot be reduced to the period undergone but on the other hand I am also of the opinion that after almost 23 years of the incident it would not be just and proper asking appellant No.2 to suffer remaining period of sentence. Therefore, instead of sending him in jail, I find appropriate to enhance the fine amount to the tune of Rs.20,000/- and the amount of fine already deposited by appellant No.2 shall be adjusted out of the enhanced fine amount. If the enhanced fine amount after adjustment of the already deposited amount is paid by appellant No.2 within a period of 60 days from today then he would not be required to suffer remaining period of sentence, but if the said amount is not deposited, then appellant No.2 will be arrested and will be sent to jail for suffering remaining period of sentence.

9. With the aforesaid this appeal is partly allowed and disposed of.

(Sanjay Dwivedi) Judge ac/-

ANIL CHOUDHARY 2021.12.10 17:29:08 +05'30'